FEDERAL COURT OF AUSTRALIA Milbourn v Repatriation Commission [2009] FCA 176 ADMINISTRATIVE LAW – extent of Administrative Appeals Tribunal's obligations to provide reasons and to state its findings on material questions of fact and the evidence or other material on which those findings were based DEFENCE AND WAR – widow's pension – whether husband's death was 'war-caused' – Tribunal not reasonably satisfied on the balance of probabilities that veteran's death was attributable to or arose out of a war-caused smoking habit Veterans' Entitlements Act 1986 (Cth) ss 7(1)(c), 8(1)(b), 13(1)(a), 120, 120B, 196A and 196B(3) Administrative Appeals Tribunal Act 1975 (Cth) ss 43 and 44 Administrative Appeals Tribunal Act (Act No. 91 of 1975) (Cth) Administrative Appeals Tribunal Amendment Act 1977 (Cth) Administrative Appeals Tribunal Amendment Act 2005 (Cth) Statute Law (Miscellaneous Amendments) (No. 1) Act 1982 (Cth) s 33 Migration Act 1958 (Cth) s 430(1) TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1067 Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 Comcare v Etheridge (2006) 149 FCR 522 Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 WAEE v Minister for Multicultural and Indigenous Affairs (2003) 75 ALD 630 Brackenreg v Comcare Australia (1995) 56 FCR 335 Repatriation Commission v Tuite (1993) 39 FCR 540 HAZEL MILBOURN v REPATRIATION COMMISSION NSD 1840 of 2008 GRAHAM J 3 MARCH 2009 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1840 of 2008 ON APPEAL FROM THE VETERANS' APPEALs DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MS R HUNT (SENIOR MEMBER) AND DR J CAMPBELL (MEMBER) BETWEEN: HAZEL MILBOURN Applicant AND: REPATRIATION COMMISSION Respondent JUDGE: GRAHAM J DATE OF ORDER: 3 MARCH 2009 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The following question, namely: 'Does section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) require a decision maker, in respect of a finding the decision maker has made on a material question of fact, to give reasons that disclose: (a) where evidence relating to the said question of fact is uncontradicted, why that evidence was not accepted; or (b) where evidence relating to the said question of fact is in conflict with other evidence or material before the Tribunal, why the first-mentioned evidence was not accepted?' be answered as follows: (a) No; (b) No. 2. The application be dismissed. 3. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1840 of 2008 ON APPEAL FROM THE VETERANS' APPEALs DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MS R HUNT (SENIOR MEMBER) AND DR J CAMPBELL (MEMBER) BETWEEN: HAZEL MILBOURN Applicant AND: REPATRIATION COMMISSION Respondent JUDGE: GRAHAM J DATE: 3 MARCH 2009 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The central issue for consideration in this case is the obligation imposed upon the Administrative Appeals Tribunal ('the Tribunal') by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act') to include in its reasons for decision, its findings on questions of fact which it judged to be material, together with a reference to the evidence or other material on which those findings were based, in circumstances where its reasons are given in writing. 2 In relation to the Tribunal's decision on review, s 43 of the AAT Act relevantly provided: '43 … (1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing: (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and: (i) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. (2) Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision. … (2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. … (6) A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.' 3 The relevant proceeding in the Tribunal was commenced by the applicant filing an 'application for review of decision' dated 4 September 2007, on a date in September 2007 which cannot be readily discerned from the copy presently before the Court. That application was the subject of a decision in writing of the Tribunal, made on 28 October 2008. It affirmed the decision under review. 4 It will be appreciated that s 43(1) of the AAT Act required the Tribunal to 'make a decision in writing' on the applicant's Application for Review of Decision. In addition, s 43(2) of the AAT Act required the Tribunal to give reasons for its decision, either orally or in writing, and s 43(2B) required the Tribunal to include certain matters in its reasons, if in writing. 5 Under s 44(1) of the AAT Act a party to a proceeding before the Tribunal could appeal to this Court, on a question of law, from any decision of the Tribunal in that proceeding. 6 Under s 44(4) the Court was empowered to hear and determine an appeal on a question of law brought under s 44(1) and to 'make such order as it thinks appropriate by reason of its decision'. Further powers were conferred on the Court by subsections (5) and (7) – (10) of s 44. 7 The applicant's Notice of Appeal filed 25 November 2008 in this case specified that: '… the applicant appeals from the decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal … constituted by Ms R Hunt (Senior Member) and Dr J Campbell (Member) given at Sydney in writing dated 28 October 2008 whereby the Tribunal affirmed a decision of the respondent refusing a claim by the applicant for widow's pension under the Veterans' Entitlements Act 1986 (Cth) in respect of the death of her husband, a veteran under that Act.' 8 It would appear that the applicant as a dependant of the late Ronald James Milbourn applied for a pension under s 13(1)(a) of the Veterans' Entitlements Act 1986 (Cth) ('the Veterans' Entitlements Act') on the basis that her husband's death on 2 November 1987, was due to small cell metastatic carcinoma of the lung, and was 'war-caused'. Under s 8(1)(b) the death of a veteran was taken to have been 'war-caused' if it 'arose out of, or was attributable to, any eligible war service rendered by the veteran …'. Under s 7(1)(c) a person who had rendered continuous full-time service (not being operational service) as a member of the Defence Force during World War 2, being service that commenced before 1 July 1947, was taken to have been rendering 'eligible war service' while so rendering continuous full-time service. 9 On 21 July 2006 a delegate of the Repatriation Commission decided that the death of Mr Ronald J Milbourn was 'not related to service, and that a war widows' pension [was] therefore not payable'. 10 The applicant sought review of the Repatriation Commission's Delegate's decision by the Veterans' Review Board. On 7 August 2007 the Veterans' Review Board decided to affirm the decision under review in relation to the death of the late Ronald James Milbourn. 11 Section 120 of the Veterans' Entitlements Act dealt with the standard of proof in respect of claims for pensions. 12 Section 120(6) of the Veterans' Entitlements Act negated the imposition of any onus of proof upon a claimant for a pension or upon the Commonwealth in relation to a claim for a pension. It relevantly provided: '120(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on: (a) a claimant … for a pension … under this Act; or (b) the Commonwealth, the Department or any other person in relation to such a claim … any onus of proving any matter that is, or might be, relevant to the determination of the claim … .' 13 Under s 120(1), the Repatriation Commission was required to determine that the death of a veteran was 'war-caused' unless it was satisfied, beyond reasonable doubt, that there was no sufficient ground for making that determination, where a claim was made for a pension in respect of the death of the veteran and it related to the operational service rendered by the veteran. By way of contrast, s 120(4) provided that in respect of other claims under, relevantly, s 13(1)(a) of the Veterans' Entitlements Act, the Repatriation Commission should, in making any determination or decision, 'decide the matter to its reasonable satisfaction'. 14 'Reasonable satisfaction' within the meaning of s 120(4) of the Veterans' Entitlements Act was limited by s 120B(3) which relevantly provided: '120B(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that … the death of a person was war-caused … only if: (a) the material before the Commission raises a connection between the … death of the person and some particular service rendered by the person; and (b) there is in force: (i) a Statement of Principles determined under subsection 196B(3) or (12); or (ii) …; that upholds the contention that the … death of the person is, on the balance of probabilities, connected with that service.' 15 By s 196A of the Veterans' Entitlements Act a Repatriation Medical Authority was established. 16 Section 196B(3), to which reference was made in s 120B(3)(b)(i), relevantly provided: '196B(3) If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of … death can be related to: (a) eligible war service (other than operational service) rendered by veterans; … … the Authority must determine a Statement of Principles in respect of that kind of … death setting out: (c) the factors that must exist; and (d) which of those factors must be related to service rendered by a person; before it can be said that, on the balance of probabilities, … [a] death of that kind is connected with the circumstances of that service.' 17 The Repatriation Medical Authority made a Statement of Principles concerning 'malignant neoplasm of the lung' (No. 18 of 2006) on 26 April 2006 with effect from 10 May 2006. The Instrument was expressed to apply to all matters to which s 120B of the Veterans' Entitlements Act applied. On 20 June 2007 the Repatriation Medical Authority made an amendment to the Statement of Principles with effect from 4 July 2007. However, that amendment to the Statement of Principles is not presently relevant. 18 The Statement of Principles (No. 18 of 2006) included the following: 'Kind of injury, disease or death 3. (a) This Statement of Principles is about malignant neoplasm of the lung and death from malignant neoplasm of the lung. … Basis for determining the factors 4. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that malignant neoplasm of the lung and death from malignant neoplasm of the lung can be related to relevant service rendered by veterans … Factors that must be related to service 5. … at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person. Factors 6. The factor must exist before it can be said that, on the balance of probabilities, malignant neoplasm of the lung or death from malignant neoplasm of the lung is connected with the circumstances of a person's relevant service is: (a) for each of the following types of malignant neoplasm of the lung: … (ii) small cell carcinoma; … smoking at least one half of a pack year of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of malignant neoplasm of the lung, where smoking commenced at least ten years before the clinical onset of malignant neoplasm of the lung; …' 19 For the purposes of the Statement of Principles 'pack years of cigarettes, or the equivalent thereof in other tobacco products' meant a calculation of consumption where: 'one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco …. One pack year of tailor made cigarettes equates to 7 300 cigarettes, or 7.3kg of smoking tobacco by weight. …' 20 The relevant question of law identified in the Notice of Appeal was expressed as follows: 'Does section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) require a decision maker, in respect of a finding the decision maker has made on a material question of fact, to give reasons that disclose: (a) where evidence relating to the said question of fact is uncontradicted, why that evidence was not accepted; or (b) where evidence relating to the said question of fact is in conflict with other evidence or material before the Tribunal, why the first-mentioned evidence was not accepted?' 21 Counsel for the respondent accepted that the question as posed in the Notice of Appeal was a question of law within the meaning of s 44(1) of the AAT Act. In the circumstances, it is unnecessary to address the observations of Gummow J, when a member of this Court, in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1067 at 1069-1074 and the observations thereon of Branson and Stone JJ in Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55, of Branson J, with whose reasons for judgment Spender and Nicholson JJ agreed, in Comcare v Etheridge (2006) 149 FCR 522 at 526-530 and of Perram J in Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49 ('Central Aviation') at [23] et seq and the significance of the amendments to s 44 of the AAT Act effected by the Administrative Appeals Tribunal Amendment Act 2005 (Cth) (Act No. 38 of 2005). 22 In its reasons for decision the Tribunal stated the issue as: 'whether Mr Milbourn's death was related to his period of army service. If we are satisfied his death was sufficiently related to his eligible service, Mr Milbourn's widow will be entitled to a widow's pension.' 23 The late Mr Milbourn was born on 16 August 1920. He served in the Australian Army between 13 January 1942 and 1 February 1943, but his service was not operational service. He was approximately 21 years and 5 months old when his service commenced and approximately 22 years and 6 months old when his service ended. During the period mentioned his service was 'eligible war service' within the meaning of s 7(1)(c) of the Veterans' Entitlements Act. 24 In these circumstances, the respondent Commission was charged with deciding 'to its reasonable satisfaction' whether Mr Milbourn's death 'arose out of, or was attributable to,' his service, no onus of proof resting upon any person. 25 For a decision to be reached to the respondent's 'reasonable satisfaction', it was necessary for the Tribunal to have before it material which 'raise[d] a connection' between Mr Milbourn's death and some particular service rendered by him, and the smoking by him of at least one half of a pack year of cigarettes, which commenced at least 10 years before the clinical onset of his malignant neoplasm of the lung and was 'related to' his service. 26 The critical finding of the Tribunal was that it was not satisfied, on balance, that Mr Milbourn had a war-caused smoking habit. It was not satisfied that his death arose out of or was attributable to his service. It was not satisfied, on the balance of probabilities, that he smoked during the period of his war service, nor was it satisfied that, if he smoked, his smoking was connected with his war service. 27 The Tribunal's findings in respect of its lack of satisfaction to the requisite standard was recorded at [14] of its reasons as follows: '[14] In our opinion, the material before us is unclear about a temporal connection with army service and even less clear about any greater relationship to army service. When forming an opinion about any relationship to service, on balance, we are not satisfied that Mr Milbourn had a war-caused smoking habit. We do not consider that Mr Milbourn's death meets the requirements of factor 6(a)(ii) in demonstrating a relationship to service. Further, clause 5 explains that, subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person. In consequence, we are not reasonably satisfied on the balance of probabilities in accordance with subsection 120(4) that Mr Milbourn's death was war-caused. This means his widow's claim must fail.' 28 The Tribunal did include in its reasons for decision a number of findings on questions of fact which it judged to be material together with references to 'the evidence or other material' on which those findings were based. Critically, the Tribunal did not make a finding of fact that Mr Milbourn smoked during the period of his army service, that his smoking, if any, was related to, connected with, attributable to or arose out of his service and that his smoking, if any, satisfied the requirements of factor 6(a)(ii) of the Statement of Principles. Being unable to make any such findings to its reasonable satisfaction on the balance of probabilities, it was not incumbent upon the Tribunal to include in its reasons references to any evidence or other material. 29 Insofar as s 43(2B) of the AAT Act requires the Tribunal to include in its reasons for decision references to 'the evidence or other material' on which findings of fact, adjudged by it to be material, were based, it seems to me that the expression 'other material' was intended to contemplate matters such as an agreement as to relevant facts, other material to which the Tribunal may have had regard which did not constitute 'evidence' and material such as policy statements. 30 When originally enacted (see Act No. 91 of 1975), s 43(2) of the AAT Act provided as follows: '43(2) The Tribunal shall give reasons in writing for its decision and those reasons shall include its findings on material questions of fact.' 31 By the Administrative Appeals Tribunal Amendment Act 1977 (Cth) (Act No. 58 of 1977) the AAT Act was amended, s 43(2) was omitted and a new subsection (2) substituted which relevantly provided: '43(2) … the Tribunal shall give reasons in writing for its decision and those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.' 32 Section 43(2B) was inserted into the AAT Act by s 33 of the Statute Law (Miscellaneous Amendments) (No. 1) Act 1982 (Cth) (Act No. 26 of 1982). By the same section, s 43(2) was amended to provide: '43(2) Subject to this section and to sections 35, 36 and 36A, the Tribunal shall give reasons either orally or in writing for its decision.' 33 The Explanatory Memoranda circulated by authority of the Minister for Industrial Relations in the House of Representatives and of the Attorney-General in the Senate, in respect of the Bill which became Act No. 26 of 1982, are not particularly enlightening in relation to the amendment of s 43(2) and the insertion of the new subsection 43(2B). 34 The Explanatory Memorandum circulated in the House of Representatives included the following in respect of Clause 33 of the Bill: 'This clause amends section 43 to make new provision with respect to the giving of reasons by the Tribunal for its decisions. Paragraph (a) … inserts a new sub-section 43(2) which provides for the Tribunal to give its reasons for decisions either orally or in writing. … New sub-section 43(2B) provides that, where the Tribunal gives written reasons for decision, those reasons are to include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based - this is the same form in which written reasons are now required to be given. …' 35 The Explanatory Memorandum circulated in the Senate was, relevantly, expressed in the same terms. 36 In the Minister's Second Reading Speech in the House of Representatives (Hansard 22 April 1982 at p1816) an explanation was provided in respect of clause 33 of the Bill which included: 'It is often convenient for the Tribunal to be able to hand down a decision, with oral reasons for the decision, without the delay involved in the preparation of a written statement. As the Act now stands, it is doubtful whether this may be done, even where a written statement is provided later. Accordingly, clause 33 of the Bill empowers the Tribunal to give either oral or written reasons at the time it hands down a decision. If it does not then give written reasons, it must do so if requested to do so by a party to the proceedings. …' 37 Section 430(1) of the Migration Act 1958 (Cth) which deals with decisions on review by the Refugee Review Tribunal, is substantially similar to s 43(2) and (2B) of the AAT Act. It provided: '430(1) Where the Tribunal [the Refugee Review Tribunal] makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based.' 38 It will be appreciated that s 43(2B) does not include the word 'any' before the words 'material questions of fact'. 39 Counsel for the parties in the matter presently before the Court accepted that 'any' in s 430(1)(c) of the Migration Act did not make the relevant provision different in substance from s 43(2B) of the AAT Act where 'any' did not appear. In the circumstances, the observations of the members of the High Court in relation to s 430(1) of the Migration Act in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ('Yusuf') provide assistance in relation to the requirements imposed upon the Tribunal by s 43(2B) of the AAT Act. 40 In Yusuf, Gleeson CJ said at [5]: '[5] … The Tribunal is required, in setting out its reasons for decision, to set out "the findings on any material questions of fact". If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material.' 41 Later, at [9], the Chief Justice said: '[9] The major difficulty … lies in the language of s 430. There is nothing in that language which imposes a requirement to make a finding on every question of fact which is regarded by the Federal Court, on judicial review of the Tribunal's decision, as being material. …' 42 The significance of the requirement to include 'findings on any material questions of fact' in the Tribunal's reasons was highlighted by Gleeson CJ when he considered the Refugee Review Tribunal's findings in Yusuf. In that respect his Honour statedat [10]: '[10] … It is impossible to read the expression "the findings" as meaning anything other than the findings which the Tribunal has made. By setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction or error … or may provide some other ground for judicial review. … But all the Tribunal is obliged to set out is such findings as it has made. …' 43 The observations of McHugh, Gummow and Hayne JJ in Yusuf at [68]-[69], [77] and [82] were to similar effect. 44 In my opinion the question of law as identified in the Notice of Appeal in the present case should be answered in the negative in respect of both sub-question (a) and also sub-question (b). 45 Section 43(2B) of the AAT Act is not concerned with the provision of reasons for findings made by the Tribunal on questions of fact judged by it to be material. In its terms it does not require reasons to be given to support why particular evidence or other material which could have supported a finding of fact, was not accepted. The obligation imposed upon the Tribunal by s 43(2) of the AAT Act called for reasons to be given by the Tribunal for 'its decision'. 46 The observations of French J, as his Honour then was, Sackville and Hely JJ in relation to the obligation of the Refugee Review Tribunal to provide reasons in Applicant WAEE v Minister for Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46] are equally applicable to the Administrative Appeals Tribunal. Their Honours said: '[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact … and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. … it is an administrative body and not a court and its reasons are not be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.' See also per Perram J in Central Aviation at [30]-[37]. 47 Had the question of law in this case been formulated by reference to s 43(2) rather than s 43(2B) of the AAT Act, I would have reached the same conclusions. 48 In relation to the question of whether or not Mr Milbourn smoked during the time of his war service and the question of whether or not his smoking was relevantly related or connected to his war service, it was sufficient to record the Tribunal's lack of satisfaction as it did in paragraph 14 of its reasons for decision. Its lack of satisfaction on the balance of probabilities is borne out in part by its observation at [14] 'In our opinion, the material before us is unclear about a temporal connection with army service and even less clear about any greater relationship to army service' (emphasis added). There was no obligation upon the Tribunal to provide reasons why evidence that was favourable to the applicant's case was not accepted. The evidence that tended one way, favourable to the applicant, took the form of hearsay from some years after the event, and evidence that tended the other way took the form of business records (an exception to the rule against hearsay) in respect of facts that would appear to have been admitted by the late Mr Milbourn during his lifetime. In the absence of any direct evidence, 'rejection' of evidence did not become an issue. As Sheppard J said in Brackenreg v Comcare Australia (1995) 56 FCR 335 at 350 'a tribunal may properly say that it does not accept the evidence of a witness and no more …', especially where the evidence relied upon is hearsay. As Sheppard J made clear, a tribunal's conclusion in a matter of this kind may be largely intuitive. 49 In relation to Mr Milbourn's smoking the Tribunal members noted the following: '[4] The parties … agree that Mr Milbourn smoked when he was in the army although evidence about the periods when Mr Milbourn smoked is not entirely clear. [The 'agreement' in relation to Mr Milbourn having smoked 'when he was in the army' qualified as it was by 'although evidence about the periods when Mr Milbourn smoked is not entirely clear' was said to arise from the transcript of the proceedings before the Tribunal on the morning of 24 October 2008. The transcript recorded: Counsel for the applicant: '… this is … a war widow's claim and the cause of death of the veteran would appear to be agreed by the statements of facts and contentions. I must admit I didn't talk to [counsel for the respondent] about it.' … Tribunal member: 'Is there an agreed smoking history between the parties?' Counsel for the applicant: 'No, this is a different area of contest effectively, and as I say I haven't had an opportunity of speaking to [counsel for the respondent] but I presume there is no contest to the extent that there is things documented and it is just really a question of what the tribunal makes of those records that are peppered through both the clinical notes and the T documents.' Senior Tribunal member: 'And have you explored how much you might agree on with the smoking history?' Counsel for the respondent: 'No, we haven't but I suspect that it will be difficult to divine a middle way between our two positions.' Counsel for the applicant: 'Yes.' Senior Tribunal Member: 'Is there an agreement when he started smoking?' Counsel for the applicant: 'We could probably agree on age 18 in a sense …' Counsel for the respondent: 'He was smoking by at least age 18.' Counsel for the applicant: 'Yes. So we agree there was an initial commencement at age 18.' Counsel for the respondent: 'Well, by 18.' Counsel for the applicant: 'By 18, all right.' Counsel for the respondent: '1938 in other words.' Counsel for the applicant: 'That would be right, yes, and perhaps if I could use the same wording, agreement that there was cessation by 1980.' … Counsel for the respondent: 'I don't think it is material' … Tribunal Member: 'But there is no argument that he met the quantity requirement?' Counsel for the applicant: 'No, I don't believe so. Half a pack is a minimal thing to meet.' Counsel for the respondent: 'Yes, that is not in doubt. The question is attributability.' Tribunal Member: 'So really all we are interested in is really the smoking history prior to his service and during the time of his service.' Counsel for the applicant: 'That is so.' Counsel for the respondent: 'Yes.' …] [5] Mrs Milbourn told us that she did not know her late husband until after his period of service but that he had told her he smoked when he was 18 and stopped for a time, aged 21, before he resumed smoking in the army. Mrs Milbourn believes her late husband smoked during service due to peer pressure, availability of tobacco in the army and stress related to service. Mrs Milbourn recollected that her late husband told her he and his army colleagues would smoke together and that he joined in for the company. He felt encouraged to smoke when the army gave him cigarettes. Smoking also eased his anxiety about the possibility of having to serve overseas. Mrs Milbourn said her late husband tried to give up smoking several times but these attempts never lasted more than a few weeks. She tried unsuccessfully to persuade him to stop smoking and he would try not to smoke in her presence. Eventually he stopped in 1977 about 10 years before he died of lung cancer. [emphasis added] … [7] The condition bringing about death in the present case is not disputed … [9] In the present case, we have no direct evidence; we have only a reference to smoking included in a failed claim Mr Milbourn made in 1983 for acceptance as service related the disability of bronchiectasis, and Mrs Milbourn's recollections of what Mr Milbourn told her of his smoking during army service. Mrs Milbourn gave evidence she met her late husband in 1945 when they were both aged 25 and Mr Milbourn was no longer serving. Her discussions with Mr Milbourn took place between 1945 and 1987, after he had completed his service, having been discharged in February 1943. …[emphasis added] [10] The transcript of proceedings before the VRB … on 7 August 2007 … shows that Mrs Milbourn gave evidence that her late husband told her he used to smoke in the army and that he liked to stop for a smoke when riding a motor bike during his time in the army. She recalled that he also said that he would stop to buy cigarettes. … [emphasis added] [11] There is a report by a medical practitioner … dated 29 February 1984. It notes … that Mr Milbourn had a chronic productive cough. … no mention was made of smoking. [emphasis added] [12] Another report on file is dated 29 August 1983. On page 3 of this report, there are four questions about tobacco. For "age started", the information is "18yrs, cigarettes". For "average daily consumption" is added "less than 20 cig/day". "Still smoking" is crossed out and "if not when stopped?" is answered "21yrs". This report does not, in our view, support a finding that Mr Milbourn smoked during his eligible service but rather indicates that he had stopped when he was aged 21. … the report of 1983 does not support any finding that Mr Milbourn resumed smoking in the army let alone a finding that he developed a war-caused habit while he was in the army [emphasis added]. [13] We have no other medical records apart from the clinical notes kept at Royal North Shore Hospital when Mr Milbourn was admitted on 3 March 1980 and again on 18 July 1980. At the time of his second admission, he is recorded as saying he stopped smoking 12 years ago but there is no record made of when he started. … The notes do not record when he commenced or re-commenced smoking.' 50 In Repatriation Commission v Tuite (1993) 39 FCR 540 Davies J said at 542: '… The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease. That was the approach adopted by the Tribunal and I see no arguable point of law arising from the Tribunal's reasons for decision, or any failure on the part of the Tribunal to expose its reasoning process or to deal with relevant issues.' 51 I would, respectfully, make the same observations in respect of the circumstances of the present case. Had the question posed been answered in the affirmative, in whole or in part, then, regardless of whether it was predicated on an obligation arising under s 43(2B) or 43(2) of the AAT Act, no consequential relief would be warranted. The Tribunal clearly articulated why it was not satisfied on the balance of probabilities that Mr Milbourn's death was 'war-caused'. 52 In my opinion, the application should be dismissed with costs. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate: Dated: 3 March 2009 Counsel for the Applicant: M G Vincent Solicitor for the Applicant: Kemp & Co Lawyers Counsel for the Respondent: G T Johnson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 20 February 2009 Date of Judgment: 3 March 2009