Bull v Repatriation Commission [2001] FCA 823

FEDERAL COURT OF AUSTRALIA

Bull v Repatriation Commission [2001] FCA 823

Veterans' Entitlements Act 1986 (Cth) ss 120(1), 120(3), 120A Administrative Appeals Tribunal Act 1975 (Cth) s 44

Bushell v Repatriation Commission (1992) 175 CLR 408 applied Byrnes v Repatriation Commission (1993) 177 CLR 564 applied Repatriation Commission v Deledio (1998) 83 FCR 82 applied Repatriation Commission v Stares (1996) 66 FCR 594 referred to Smith v Repatriation Commission [1999] FCA 1484 referred to Lowerson v Repatriation Commission (1994) 50 FCR 252 referred to Hansell v Repatriation Commission (1992) 38 FCR 202 referred to Webb v Repatriation Commission (1988) 19 FCR 139 referred to East v Repatriation Commission (1987) 16 FCR 517 followed Repatriation Commission v Bey (1997) 79 FCR 364 referred to Repatriation Commission v Owens (1996) 70 ALJR 905 followed Owens v Repatriation Commission (1994) 35 ALD 278 referred to Owens v Repatriation Commission (1995) 59 FCR 559 referred to

JOAN BULL v REPATRIATION COMMISSION

N 192 OF 2001

GYLES J

SYDNEY 29 JUNE 2001

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 192 OF 2001

BETWEEN: JOAN BULL

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: GYLES J DATE OF ORDER: 29 JUNE 2001 WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the costs of the respondent.

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 N 192 OF 2001

BETWEEN: JOAN BULL

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: GYLES J DATE: 29 JUNE 2001 PLACE: SYDNEY

REASONS FOR JUDGMENT

1 On 27 April 1998 the applicant lodged a claim under the Veterans' Entitlements Act 1986 (Cth) ("the Act") fora widow's pension in respect of the death of her husband, James Arnold Bull. The claim was refused by the Repatriation Commission and, on review, by the Veterans' Review Board. An application was then made to the Administrative Appeals Tribunal ("the Tribunal"). On 2 February 2001 the Tribunal affirmed the decision under review. 2 On 2 March 2001 the applicant filed a notice of appeal to this Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). The question of law raised in the notice of appeal is whether the Tribunal erred in law in its application of s 120 of the Act. The grounds stated were: "… misapplying the test of whether a reasonable hypothesis had been raised on the material before it in terms of subsection 120(3) of the Act, in that the Tribunal erred as to what constitutes at law a hypothesis that is "too tenuous"." 3 The cause of Mr Bull's death was a cerebrovascular accident and, pursuant to the relevant Statement of Principles pursuant to s 120A of the Act, factors that can as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the death from that cause with the circumstances of the person's relevant service include: "… regularly consuming an average of 250g/week of alcohol (contained within alcoholic drinks), for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident …" In this case, it is accepted by both parties that that factor was present. It is also accepted that during the Second World War the deceased saw operational war service out of Australia, in the Middle East, and also served in Western Australia. The contentious matter for decision was the existence of a causal link between the deceased's excessive drinking and his war service. 4 A body of evidence was tendered to the Tribunal, which is summarised by it in pars 6 to 21 of its decision. The Tribunal's findings and decision can be sufficiently gathered from pars 31 to 35 of the decision, which are as follows: "31. The hypothesis raised is that the Veteran's pre-service drinking increased by the time of his discharge from the Army, that it increased further about five years after his discharge, and was maintained at that level until after his retirement when it increased further until the time of his wife's heart attack and invalidity, when he reduced his drinking somewhat. The Veteran considered his service in the Middle East to be "pretty grim" and he refused to talk about it. After the war he continued to be a gentle, "happy go lucky" man, except for occasional outbursts with his family, and except when he had been drinking. When he had been drinking he became aggressive. His post-service drinking venue included drinking with his Army friends at the RSL club, whereas his pre-service drinking was only at the golf club. 32. The Tribunal is required to consider whether a reasonable hypothesis has been raised to connect the Veteran's drinking with his war service. While it is reasonable to infer that his war service in the Middle East and in Western Australia were both stressful, albeit in different ways, the nature of that stress is not known and the effect that it had on the Veteran is not known, except to say that he did not want to talk about it. There is no evidence that the Veteran suffered from any psychiatric disorder arising from his war service. There is no evidence that he drank to deaden the memories of his stressful war service., It was not until his retirement that he drank at home, apart from coming home with his friends to continue drinking after he was already drunk. His drinking appeared to revolve around his sport, both golf and later bowls, and for many years it was confined to weekends. There is no evidence that his drinking affected his work in any way. He was well respected by his friends and his work colleagues and bosses, and appears to have had no difficulty in maintaining those relationships. While he did not move into a parenting relationship with his step-son to any extent, there is no evidence that it was his drinking that inhibited that relationship. 33. The Veteran gave no indication to his family that he was drinking because of his war service. Merely, he refused to discuss his war experiences and he refused to admit that his drinking was a problem. The juxtaposition of these two negatives does nothing more than leave open a possible relationship rather than pointing to it. The closest relationship that the Applicant can point to in associating the Veteran'' drinking with his war service that post-service he drank with his Army friends at the RSL club. This on its own is a fairly tenuous relationship with his war service. If it was one of a number of facts pointed to in the hypothesis it could be seen differently from being one of the main facts raised of an association. 34. In terms of the raised facts, when considered in relation to those in Stares, the Applicant's case would appear to be weaker. Certainly it is a much weaker case when compared with the Tribunal's decision Re Wallis, in which the facts can be clearly distinguished. 35. In considering the evidence as a whole in respect of the raised facts, the Tribunal is concerned that so much of the hypothesis is left open as to make it so tenuous as to be not reasonable, taking into account the definition of a "reasonable hypothesis" endorsed by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408, where Mason CJ, Deane and McHugh JJ said, at 414: '[An] hypothesis cannot be reasonable if it is 'contrary to proved scientific facts or to the known phenomena of nature'. Nor can it be reasonable if it is 'obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous'. In the words of the High Court in Bushell, the hypothesis raised by the Applicant in this matter is "too tenuous" and therefore the Tribunal considers that, pursuant to s 120(3) of the Act a reasonable hypothesis has not been raised on the evidence." 5 Subsections 120(1) and 120(3) of the Act are as follows: "120 Standard of proof (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. … (3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury of 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. …" 6 The obvious difficulties in construing and applying these subsections have led to a stream of authorities, many of which were decided before the introduction of s 120A of the Act and dealt with medical-scientific issues which, in this case, are settled by the operation of the relevant Statement of Principles. This does not detract from the continuing authority of the principles settled by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 ("Bushell") and Byrnes v Repatriation Commission (1993) 177 CLR 564. A Full Court of this Court considered the issues which arose after s 120A was inserted into the Act in Repatriation Commission v Deledio (1998) 83 FCR 82 ("Deledio"). Although counsel are agreed that there are some errors in the final part of that judgment, Deledio sufficiently translates the principles laid down by the High Court to the present position. 7 The principal guidance to be gained from these authorities is that the opinion required of the Commission pursuant to s 120(3) of the Act is to be formed prior to consideration by the Commission of the issue which arises under s 120(1). If the Commission arrives at a negative opinion pursuant to s 120(3), there is no need to go any further as that settles the issue arising under s 120(1) without more. These authorities also establish that the Commission's consideration of the whole of the material pursuant to s 120(3) of the Act does not involve fact-finding in the sense of accepting or rejecting particular parts of the material before it. The Tribunal stands in the shoes of the Commission. 8 It was submitted for the applicant that the Tribunal's reasons for decision disclosed an error of law in that it is clear from pars 31 to 34 of the Tribunal's reasons, which lead up to the conclusion in par 35, that the Tribunal has improperly weighed up the hypothesis vis-a-vis material which did not support the hypothesis, because the Tribunal points out the state of the evidence in respect of a range of discrete matters. It is submitted that, according to the authorities, the task of the Tribunal at 'step 1' was to survey the material to determine whether there was material capable of supporting a hypothesis: that is, "is the hypothesis pointed to by the raised facts?" It is argued that it is to be remembered that, at law, any administrative decision-maker is required to consider all material put before them. The duty of the Commission to consider "all the material" is no more than that. 9 It was submitted for the applicant that the Tribunal has misinterpreted the meaning of the words "leave open" as those words are used in the authorities. It was submitted that a hypothesis that is "left open" is one which lacks "some evidence to be found in the material before the Tribunal": Repatriation Commission v Stares (1996) 66 FCR 594 ("Stares") (at 599-600). A hypothesis that is "left open" is one that is merely abstract": ibid. It was submitted that it was not open for the Tribunal to find that the hypothesis was "left open" or "merely abstract", there being nothing in the material before it that supported the hypothesis. It was submitted that, at the s 120(3) stage, the hypothesis would still be reasonable even though the claim that the alcohol habit arose from service was to be assumed. It was put that, in the present case, there is some evidence in support of both a temporal connection and a causal connection. 10 Counsel for the applicant relied in particular upon passages from Stares (at 599-600), Smith v Repatriation Commission [1999] FCA 1484 (at pars 14-15), Lowerson v Repatriation Commission (1994) 50 FCR 252 (at 260), Hansell v Repatriation Commission (1992) 38 FCR 202 (at 213) and Webb v Repatriation Commission (1988) 19 FCR 139 (at 142). The argument was summarised by saying that the Tribunal wrongly assessed evidence when considering the issue raised by s 120(3) rather than at the later stage as required by the authorities. 11 Counsel for the respondent supplemented the reference to authority by referring me to East v Repatriation Commission (1987) 16 FCR 517 (at 518-527) ("East"), also drawing attention to the adoption of East by the High Court in Bushell and the reaffirmation of East in Repatriation Commission v Bey (1997) 79 FCR 364 (at 372-373). It was submitted that the opinion as to whether an hypothesis was reasonable or not was committed by s 120(3) to the opinion of the Tribunal, standing in the shoes of the Commission. Section 44 of the AAT Act only permits an appeal on a question of law. The opinion to be formed is an opinion as to a question of fact: Repatriation Commission v Owens (1996) 70 ALJR 905 ("Owens"). The question is not whether an hypothesis of connection would be reasonable if some factor was ignored; the question is answered by reference to the whole of the material before the Tribunal (see Owens). It was submitted that the finding by the Tribunal that the hypothesis that there was a causal connection between war service and the excessive drinking of the deceased was "too tenuous" applied the law as laid down in East (and approved thereafter) and the Tribunal had expressly referred to the relevant portion of Bushell. 12 In my opinion, despite the well crafted argument by counsel for the applicant, the respondent's argument must be accepted. There is nothing to indicate that the Tribunal did not address the task it was given pursuant to s 120(3) of the Act or that it impermissibly entered into fact-finding which is of a kind reserved to it only when considering s 120(1) at a later stage. It had a body of material before it which related to the drinking of the deceased. None of it bore directly upon the link between war service and drinking, or even his drinking during the war. He drank before the war, he drank after the war and he continued to drink for the rest of his life. Whether that material, coming as it does from various sources, gives rise to a reasonable hypothesis is, as the High Court said in Owens, a question of fact. As with questions of fact, minds can differ. On the material before it the Tribunal could have found that the hypothesis was reasonable, but it was open to it to find to the contrary. Decisions in other factual situations are of little assistance in a case such as the present, but I found the judgments of Lockhart J in Owens v Repatriation Commission (1994)35 ALD 278 and Davies J in the Full Court in the same case (Owens v Repatriation Commission (1995) 59 FCR 559) useful, considering the approval of those judgments by the High Court when refusing special leave (see Owens). 13 I agree with the submission of the respondent's counsel that the reasons of the Tribunal do not reveal or reflect any error of law. No error of law can be identified in them. On the contrary, the reasons refer to the relevant authority. For my own part, I think that there is some danger in a Tribunal guiding itself by judicial paraphrases rather than by the statutory language, but that did not lead to any error here. Counsel for the applicant sought to make much of the words "so much of the hypothesis is left open". In my view, those words, taken in context, simply mean that there was no direct material before the Tribunal actually going to the central part of the hypothesis of connection between war service and excessive drinking, which remains entirely a matter of inference. Even if that were wrong, it would not be an error of law but, in my opinion, it is plainly correct. The language of decision-makers is not to be scrutinised with too fine or pedantic an approach. 14 The application is dismissed. The applicant is to pay the costs of the respondent.