CATCHWORDS ADMINISTRATIVE LAW - decision to refuse applicant widow's pension - decision affirmed by Administrative Appeals Tribunal - whether cancer war-caused injury - whether Tribunal correctly applied s120(3) Veterans' Entitlements Act 1986 (Cth) - whether order should be made that matter be heard by Tribunal differently constituted. EVIDENCE - expert witness - qualifications - conflicting expert evidence. Administrative Appeals Tribunal 1975 (Cth), s44 Veterans' Entitlements Act 1986 (Cth), s120 Administrative Decisions (Judicial Review) Act 1977 (Cth), s16(1)(b) Bushell v Repatriation Commission (1992) 175 CLR 408 Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal & Anor (1990) 26 FCR 39 No. NG 816 of 1994 LENNEY VANT WHITE -v- REPATRIATION COMMISSION MOORE J SYDNEY 5 September 1995 IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 816 of 1994 ) GENERAL DIVISION ) BETWEEN: LENNEY VANT WHITE Applicant AND: REPATRIATION COMMISSION Respondent JUDGE: Moore J PLACE: Sydney DATE: 5 September 1995 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The decision of the Administrative Appeals Tribunal of 25 October 1994 is set aside. 2. The application for review be remitted to the Tribunal to be heard and determined again by the Tribunal differently constituted. 3. The respondent pay the applicant's costs. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 816 of 1994 ) GENERAL DIVISION ) BETWEEN: LENNEY VANT WHITE Applicant AND: REPATRIATION COMMISSION Respondent JUDGE: Moore J PLACE: Sydney DATE: 5 September 1995 REASONS FOR JUDGMENT This is an appeal, so styled, from a decision of the Administrative Appeals Tribunal ("the Tribunal") made on 25 October 1994 which is brought under s44 of the Administrative Appeals Tribunal Act 1975 (the "AAT Act"). The decision was to affirm a decision to refuse Mrs Lenney White (the applicant), the widow of a veteran, a pension under the Veterans' Entitlements Act 1986. The application in this Court was filed on 24 November 1994 and the applicant died on 21 March 1995. At the commencement of the hearing an order was made under O6 r15 that Mr Trevor Butt, the applicant's solicitor, be appointed to represent the applicant's estate for the purposes of the proceedings. That was done by consent. The issue raised in the appeal is narrow in compass and accordingly it is unnecessary to set out in detail the entire factual background against which the decision of the Tribunal was made. The applicant's husband had served in World War II and had died in April 1989. The death certificate records the disease or condition directly leading to death as metastatic cancer - primary unknown and a reference is made to liver metastases. Also noted on the certificate as other significant conditions contributing to death but not related to the disease or condition causing it, was prostatic carcinoma the onset of which occurred eleven years before. That is consistent with other records suggesting that the prostate cancer was first diagnosed in 1978. In evidence before the Tribunal was a report from Professor Gabrielle Kune of 29 March 1994 in which the following conclusion was expressed concerning the cause of death: "The clinical history indicates progression of the prostate cancer with it being only present in the prostate in 1978, and in 1984 there being no evidence of boney secondaries, whereas by December 1988 boney metastases had appeared and a few months later liver metastases were present. One has no difficulty in fitting this clinical picture together in to one of progressive prostatic cancer becoming aggressive in the late 1980's. In my view, based on the available medical evidence there is no need to postulate another primary site, apart from the prostate, to explain Mr White's condition and cause of death." The proceedings before the Tribunal and in this Court proceeded on the basis that this report correctly identifies the cause of death. The Tribunal heard evidence from two witnesses whose opinions found the legal issue in these proceedings. One was Dr Anthony Kidman who provided a report dated 2 May 1994 and gave evidence before the Tribunal. The other was Dr John Levi who prepared a report dated 9 May 1994 and a further report dated 28 July 1994 commenting on the report of Dr Kidman. Dr Levi also gave evidence. Dr Kidman's report commences with a brief discussion of Mr White's history and then a more general discussion about the relationship between cancer and environmental and psychological factors. A conclusion concerning Mr White was expressed in these terms: "The role of stress in cancer occurrence has been contentious for a long time, there are many researchers who do not support a causal role, the fact that from time to time cancer spontaneously regress: that a fighting spirit as opposed to a stoic indifference increases survival time as shown by Dr Greer in the UK, support the hypothesis that emotional state such as anxiety, depression and anger are factors in cancer occurrence and recurrence. These negative emotions together with the alcoholism and drinking may well have produced the hormonal and immune system changes that lead to Mr White's cancer and as such it is reasonable to propose a causal relationship between his war service and the occurrence and his subsequent death from cancer." Dr Levi's first report sets out his qualifications: "I am a consultant physician specialising in the field of Medical Oncology and have been so for the past 24 years. I am presently Head of the Department of Clinical Oncology and actively involved in a wide variety of malignancies including cancer of the prostate. I am also actively involved in both clinical and laboratory cancer research and have over 200 publications in these areas." The report then addresses the question of whether the prostatic carcinoma was the likely origin of the malignancy that gave rise to his death. Dr Levi concludes that it was. Having noted that Mr White had been a heavy drinker Dr Levi went on to deal with the possible relationship between his death and his war service and said: "If it is assumed that the carcinoma was indeed prostate, both initially in 1979 as clearly diagnosed, then at the time of relapse in 1988/89 until death as discussed above, then there is nothing in Mr White's war service which I believe can be connected to this. There is no recognised association between alcohol consumption and the development of carcinoma of the prostate, and there is nothing else in Mr White's conditions of service which can be connected. If it is connected that metastic small cell carcinoma was the cause of Mr White's death and it was in fact from a primary site which remains unknown, again, I am unable to associate this with anything in Mr White's war service of either a causal or contributory nature. ... In summary therefore I consider the metastic malignancy suffered by Mr White which was the underlying cause of his death most likely arose from his prostate and there is nothing in his war service that I consider to be either causal or contributory to the development or progression of his malignancy." In his second report Dr Levi discusses the opinion of Dr Kidman. He notes the psychiatric history of Mr White and goes on to deal with studies which have considered the causal relationship between stress and cancer. He noted several studies, where, as he describes it, the result was "negative". However he also notes a study in 1987 in which it had been demonstrated that psychological depression was positively associated with an increased mortality from cancer, though as to prostate cancer, the result was not positive. Dr Levi goes on to refer to other studies and concludes: "Taking all these various studies into consideration, in relation to Mr White's personality disorder it is reasonable to conclude that this did not cause or contribute to the development or recurrence of his malignancy and therefore does not, in my opinion, represent an association between his cancer and war service." Dr Kidman's views were expanded upon in oral testimony. He identified his qualifications as a Graduate in Science and having three degrees namely a Bachelor's Degree, a Master's Degree and a Doctorate. His area of scientific training was in biology. He has been a working research scientist and, post doctorally, worked in the field of neuro pharmacology. He said he is presently engaged in research with a Dr Bell of the Oncology Department of the Royal North Shore Hospital, on the effect of cognitive behaviour therapy on women with metastatic breast cancer and the impact of such therapy on the progression of the disease. He went on to explain that the field of study involving the relationship between psychological factors and cancer was a developing one. In cross-examination he was asked a question about Dr Levi's reports and to comment on the observations made in them. That gave rise to the following response from the senior member of the Tribunal: "Well really Mr Shadbolt where do we start. I mean, it is very unfair to a witness to sort of ask him a general matter in a report of four pages. If you direct him to the various reports and point out what Dr Levi said and I do not think it is going to assist us a great deal anyway. Dr Levi is on one side of the equation and this witness is on the other." Cross-examination on Dr Levi's report was not pursued. Dr Levi's views were also expanded upon in oral testimony. He repeated what was the import of his second report by saying that while there have been one or two positive studies the vast majority of studies that he was aware of have been negative and that the current thinking amongst most researchers at the present time is there is no substantial evidence to support the view that stress, in one form or another, is associated with the causation of cancer at any specific site. He goes on to accept, however, that the relationship between stress and the development of cancer is an area still that requires research. He observed that the research being undertaken by Dr Bell related to progression of the disease and not causation though he later conceded his knowledge of the project was limited in some respects. He was also asked to comment on the report of Dr Kidman by a member of the Tribunal. He did so and expressed the view that Dr Kidman's hypothesis was not reasonable. It was against this background of the diverging opinions of Dr Levi and Dr Kidman that the Tribunal made its decision. After referring to the reports of Dr Kidman and Dr Levi the Tribunal notes that Dr Kidman is a clinical psychologist, it says: "The Tribunal has heard his evidence although his expertise goes considerably to the weight of his evidence and where one has to compare the evidence of a clinical psychologist, no matter how well qualified, as opposed to that of an expert such as Dr Levi, then obviously weight must be given to that of Dr Levi." After referring to the decisions of the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 and Commissioner for Government Transport v Adamcik (1961) 106 CLR 292 the Tribunal went on to express its conclusion in the following way: "In our opinion that takes the hypothesis contended for in that case outside the situation here where one is asked to compare a psychologist vis-a-vis and oncologist when dealing with the field of cancer. In Bushell, in the decision of His Honour , the Chief Justice and Dean McHugh JJ it was said: A hypothesis cannot be reasonable if it is contrary to proved scientific facts or to the known phenomena of nature. And then referring to the well-known passage in East v Repatriation Commission 74 ALR 518-533 said: Nor can it be reasonable if it is obviously fanciful, impossible, incredible or non-tenable or too remote or too tenuous. Now in this case as stated, the hypothesis contended for by the applicant gives rise to issues for debate. That is to say, to use Dr Levi's words, it is an area that is worthy of research but on the material before us we are not satisfied that a reasonable hypothesis has been raised consistent as that term was defined in East v Bushell (supra). The decision under review will therefore be affirmed." The decision of the Tribunal was given ex tempore and what I have quoted is itself a quotation from the transcript of the proceedings. It is reasonably clear that the Tribunal preferred the views of Dr Levi and their preference for his views lead them to reject those of Dr Kidman. They seemingly did so principally on the basis that Dr Levi was an oncologist and Dr Kidman was a psychologist. They appeared to have paid either no regard or little regard to Dr Kidman's earlier scientific training in biology or that Dr Levi had no direct experience in research relating to the relationship between stress and cancer. The primary submission of the applicant is that the Tribunal failed to apply the provisions of s120 of the Veterans' Entitlements Act 1986 having regard to the discussion in both Bushell (supra) and Byrnes v Repatriation Commission (1993) 177 CLR 564 on the proper construction of those provisions. I was referred to passages in Bushell (supra) by counsel for both the applicant and the respondent in support of their submissions. The starting point, however, is the terms of s120(3) which provide: "(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) that the injury was a war-caused injury or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-caused disease; or (c) that the death was war-caused or defence-caused: as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person." Plainly relevant to the construction of s120 is the remainder of the section but I do not set it out. The material before the Tribunal included the admitted evidence of Dr Kidman, both as contained in the written report and oral testimony and the evidence of Dr Levi in the same form. The Tribunal was obliged by s120(3) to consider Dr Levi's evidence as part of "the whole of the material". The manner in which the material should be approached and whether it raised a reasonable hypothesis was discussed in the joint judgment of Mason CJ, Deane and McHugh JJ in Bushell (supra). It is instructive to set out what is said by their Honours though it is lengthy: "The material will raise a reasonable hypothesis within the meaning of s. 120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc, of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purpose of s120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists. Thus, in Commissioner for Government Transport v Adamcik (12), this Court held that there was reasonable evidence to support a claim for damages that emotional disturbance, brought on by an accident, had caused acute lymphatic leukaemia even though only one doctor supported the claim, others rejected it, and there was evidence that fo nearly twenty years the medical literature had discarded earlier suggestions that some cases of leukaemia had been the result of trauma. Windeyer J. said (13): "The most that could be urged against Dr. Haines' evidence is that the cause of leukaemia is not, in a positive sense, known and that his view is thus unproven and not accepted by others: not that it can be scientifically established as false." However a hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature" (13). Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous" (14). But leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable. As we have earlier pointed out, it is not the function of s. 120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its functions under s. 120(3) the Commission cannot have regard to the medical or scientific material which is opposed to the material which supports the veteran's claim. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connexion between the incapacity or death and the service of a veteran. But it is vital that the commission keep in mind that the hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion. If the material does raise a reasonable hypothesis of a connexion between the service and the injury, disease or death, the claim must be dealt with in accordance with s. 120(1). That is to say, the Commission must determine that the injury, disease or death was war caused "unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination". The use of the terms "the material" and "raise" strongly suggests that sub-s. (3) is not concerned with the proof or satisfaction of a claim but with whether there is some "material" which calls for a determination under s120(1). It is plain that the Tribunal should pay regard to competing opinions of experts. So much is apparent from the observations in the middle of the penultimate paragraph in the passage I have just quoted. However, it is also plain from the first paragraph quoted, that the absence of widespread support for the hypothesis is not decisive and, by implication, it should not be rejected for that reason alone: see also Byrnes (supra) at 569.3. Reference is made by their Honours to Commissioner for Government Transport -v- Adamcik (1961) 106 CLR 292. What the Tribunal has done in the present case, in my opinion, is not to consider the hypothesis arising from the opinion of Dr Kidman and ascertain whether it is a reasonable one having regard to the evidence of Dr Levi but rather to prefer the opinion of Dr Levi and, as a consequence, reject in its entirety the opinion of Dr Kidman. The rejection of the opinion of Dr Kidman is not by reference to any deficiency in his reasoning or identified quantitative or qualitative inadequacy in the material upon which his opinion was based. There is nothing in the decision of the Tribunal that explains why Dr Kidman's opinion should be rejected. A relevant consideration in assessing the weight of a medical opinion is the eminence of the expert who proffers it. In the present case even if Dr Levi is to be viewed as eminent in the field of scientific and medical research and endeavour that includes research into the relationship between stress and cancer and Dr Kidman is to be viewed as less eminent, that does not justify the rejection, without real explanation, of the views of Dr Kidman in their entirety for the purposes of making the judgment required by s120(3). The Tribunal quotes a passage from East v Repatriation Commission (1987) 74 ALR 518 in which reference is made to hypotheses which are obviously fanciful, impossible, incredible or too remote or too tenuous and that may reflect its view of the applicant's hypothesis. The Tribunal does not state expressly, however, that that represents the view they had formed of the hypothesis advanced by the applicant and even if that is to be inferred by the use of the quotation, the Tribunal provides no explanation as to why that conclusion was reached having regard to the opinion of Dr Kidman. I have concluded that the Tribunal failed to address the hypothesis advanced by the applicant in the manner required by s 120(3). Accordingly their decision manifests an error of law and should be set aside. I so order and remit the matter to the Tribunal to be determined according to law. An issue arose as to whether, if I concluded that the Tribunal had erred in law in its application of s120(3), an order should be made remitting the matter to the Tribunal differently constituted. The respondent submitted no such order should be made as the constitution of the Tribunal is a matter for the President of the Tribunal. Such order should be made, it was submitted, only if the Tribunal voiced a strong view on a matter such as the credibility of a witness, or in cases where there might be an apprehension of unfairness akin to an apprehension of bias. Reference was made to Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39, Repatriation Commission v Malley (1991) 14 AAR 278, Fletcher & Ors v Commissioner of Taxation (1992) 38 FCR 137, Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206 and "Successful appeal - remission to the trial court" Jan 1994, 68 ALJ 79. I add a reference to Re Australian Railways Union; Ex parte Public Transport Commission (1993) 67 ALJR 904. The decision of the Full Court in Northern NSW FM (supra) identifies the principles that should guide a single Judge of this Court in the exercise of the discretion conferred by s16(1)(b) of the Administrative Decisions (Judicial Review) Act 1977 (the "ADJR Act"). It is plain from the joint judgment of Davies and Foster JJ that an overriding consideration is as expressed by their Honours: "If a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the members constituting the Tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the rehearing. The aggrieved party may think that a rehearing before the Tribunal as originally constituted could be worthless, for the member's views have been stated." This appeal is being heard under s44 of the AAT Act which deals with the powers of the Court in the following way: (4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision. (5) Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court. (6) If the Federal Court of Australia makes an order remitting a case to be heard and decided again by the Tribunal, the Tribunal need not be constituted for the hearing by the person or persons who made the decision to which the appeal relates. The discretionary power in s44(5) appears, in substance,to be the same as that in s16(1)(b) of the ADJR Act. However s44(6) deals with the composition of the Tribunal and in this respect it differs from s16 of the ADJR Act which is silent on the issue of whether the matter can, when remitted, be dealt with by the same or a different decision maker. However the existence of s44(6) does not, in my opinion, limit the exercise of the discretionary power in s44(5) and it should be exercised in accordance with the principles determined by the Full Bench in Northern NSW FM (supra). In the present case the Tribunal has used language consistent with its holding the view that the hypothesis of Dr Kidman is at least fanciful and incredible, and seemingly on the basis that its assessment of Dr Kidman's qualifications when compared to those of Dr Levi, sustain that conclusion. In my opinion, were the members of the Tribunal who heard the matter originally to hear it again when remitted, it would be likely that the representative of the applicant's estate would view the rehearing by them as of limited worth. While I could simply express this view and make no order: see Dolan (supra) at 218, it may be thought that I would be doing so to influence the manner in which the matter might be allocated by the President when remitted. In my opinion it is preferable to either make an order or refrain from commenting. It is inappropriate to do the latter and accordingly I order that the matter be heard by the Tribunal differently constituted. The respondent is to pay the applicant's costs. Associate: Dated: 5 September 1995 APPEARANCES Counsel for the Applicant: Mr M B Smith Solicitor for the Applicant: Legal Aid Commission Counsel for the Respondent: Miss R M Henderson Solicitor for the Respondent: Australian Government Solicitors Dates of Hearing: 3 August 1995