Brown, S.S. v. Repatriation Commission [1985] FCA 236

JUDGES MAKING ORDER: BOWEN C.J.,. FISHER and LOCKHART Jd. DATE OF ORDER: 7 JUNE 1985 WHERE MADE: SYDNEY

The appellant. Sarah Sybil Brown, pay to the respondent, The

NOTE: Settlement and entry of orders is dealt with in Order

This is an appeal from a judgment of a single Judge of this Court (Toohey J.: dismissing the appellant's appeal from a decision of the Repatriation Review Tribunal ("the Tribunal") that chere were insufficient qrounds for aranting the appellant's claim for a pension

The appellant s late husband ("the deceased") died on 7 April 1974. He was a member of the R.A.A.F. from 11 March 1944 to 18 May 1945 and served 1n New Guinea from 11 March 1945 to 28 April 1945. The cause of his death was fulminating infection due to widespread

malignancy from carcinoma of the rectum. The appellant lodged a claim

for a pension on 24 Auqust 1974. The claim was rejected by the

Repatriation Board on 26 September 1974 and appeals to the

Repatriation Commission were subsequently disallowed. There was a further appeal to the War Pensions Entitlement Appeal Tribunal which

On 17 February 1981 the appellant requested the Commission to reconsider its earlier decision pursuant to sub-s. 31(1) of the Act

ceviewing any assessment, decision or determination

The Commission decided that it did not consider sufficient ceasons existed for it to review the case. The appellant then applied to the Tribunal pursuant to s. 107VC of the Act for a review of the Commission's latest decision. The Tribunal considered that the reasons of the Commission for rejecting the appellant's claim and the medical opinions on which they were based established beyond reasonable doubt that the deceased's death did not arise out of or was not attributable to his war service. The Tribunal therefore decided that the appellant was not entitled to a pension under s. 101 of the Act. On appeal to this Court from that decision of the Tribunal the

learned primary Judge held that 1& was open to the Tribunal to make

The appelliant's argument on appeal to this Full Court was twofold. First, it was submitted that, provided some question of law is involved in the decision of the Tribunal, the whole decision, and not merely the question of law, is then open to review by the Federal Court. Counsel relied heavily on a stream of authority in the High Court ta the effect that, where a decision of a Board of Review made

under the Income Tax and Social Services Contribution Assessment Act

1936 ("the Assessment Act") involves a question of law, then the whole case, and not merely the question of law. 15 subject to an appeal brought from that decision to the court having jurisdiction to hear

the appeal and is then open to review: Ruhamah Property Company

Limited v. The Federal Commissioner of Taxation (1928) 41 C.L.R. 148;

Krew v. Federal Commissioner of Taxation (1971) 45 A.L.J.R. 249; XCO

Ptv. Limited v. Federal Commissioner of Taxation (1971) 124 C.L.R.

Counsel for the appellant submitted that. as the jurisdiction that the Federal Court exercises on appeal from decisions of the Tribunal 1s within its original. not its appellate. jurisdiction (see

Federal Court of Australia Act 1976, sub-s. 19(2)) the parties are not

limited to the material which was before the Tribunal, but are entitled to adduce before this Court fresh evidence in support of or

In our opinion there is a fundamental difference between appeals brought from decisions of Boards of Review tc Supreme Courts

pursuant to s. 194 of the Assessment Act and appeals brought from

decisions of the Tribunal to the Federal Court under the Act pursuant

to s. 107V22ZH. In the former case the relevant provision (sub-s.

"(1) The Commissioner or the taxpaver may appeal to a Supreme Court from any decision of the Board that involves a question of law."

Sub-section 107VZZH(1) of the Act 1s cast in materially different

The lanquage of s. 196 supports the view that it is the whole decision of a Board of Review that 1s subject to appeal to a Supreme Court provided the decision involves a question of law. This is the construction which the High Court has placed upon s. 196 for many

years, but we see no warrant for transferring that reasoning process

to s. 107V2Z2ZH which 1s couched in very different terms.

The existence of a question of law is not merely a qualifyvind condition to ground an appeal from a decision of the Tribunal; rather, it and 1t alone is the subject matter of the appeal, and the ambit of the appeal is confined to it. Although it is necessary in some appeals pursuant to s. 107VZZH for this Court to consider the evidence before the Tribunal (for example, where the alleged question of law is

that there is no evidence upon which the Tribunal could reasonably

support its finding) the Court should be cautious before embarking on its own analysis of the evidence where the task of assessing facts has been placed by the legislature in the hands of specialist bodies such as the Tribunal and the Commission which are equipped to deal with

Thus the lanquage of s. 107VZZH. the legislative framework in which the section appears and the role played by appeals to the Federal Court from decisions of the Tribunal lead us to reject the submission of counsel for the appellant. But there are other indicia

in the relevant provisions of the Act which confirm our vier.

When the Commission or a Board hears and considers a claim or application the Act expressly provides that it is not bound by technicalities, legal forms or rules of evidence and that it shall act according to substantial justice and the merits and all the circumstances of the case and shall take into account any difficulties that for any reason would lie in the way of ascertaining the existence of any fact, matter, cause or circumstance: see sub-s. 47(1) in the case of the Commission or Board ands. 107VG in the case of the Tribunal. The Act makes no similar provision with respect to appeals

to the Federal Court from decisions of the Tribunal.

If the legislature intended this Court to have a general power of review of the Tribunal's decision one would expect to find a provision relating to the Court similar to sub-s. 47/1) and s

107VG. A review by this Court 1n the absence of a similar provision

1n the Act with respect to the Court would lead to the review procedure becoming unbalanced and productive of confusion, uncertainty

There are sound reasons why the legislature has not applied provisions such as sub-s. 47(1) ands. 107VG to the Court in its appellate role pursuant to s. LO7V@ZH. The Court is a court of law and, although exercising its original jurisdiction, is hearing appeals on questions of law from decisions of the Tribunal. "The Act contains an elaborate structure for considering and determining facts in applications and claims for pensions and other entitlements under the Act. To add to this structure the Court as yet another of the bodies

charaed with this factual assessment would be a work of

Also, although the Court shall hear and determine the appeal

and make such order as it thinks appropriate by reason of its decision

"(5) Wathout limiting by implication the generality of sub-section (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."

The lanquage of sub-s. (5) does not sit easily with the notion that

the Court conducts a general review of the Tribunal's decision; but it

. 7. is entirely consonant with the view that the subject matter and scope of the appeal is limited to a question of law and does not operate as

A more apt analogy to appeals pursuant to s. 107V&2ZH of the Act than appeals pursuant to s. 196 of the Assessment Act is to be found in appeals to this Court from decisions of the Administrative Appeals Tribunal pursuant to sub-s. 44(1) of the Administrative

"A party toa proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from anv decision of the Tribunal in that proceeding."

That sub-section is cast in substantially the same language

It has been held that appeals under sub-s. 44(1) of the

Administrative Appeals Tribunal Act 1975 are more limited in scope

than those under sub-s. 196(1) of the Assessment Act: Blackwood Hodae

(Australia) Pty. Ltd. v. Collector of Customs {New South Wales) (1980) 47 F.L.R. 131: Committee of Direction of Fruit Marketing v.

Australian Postal Commission (1979) 25 A.L.R. 221 per Northrop J. at

Accordingly, in our opinion the appeal to this Court from the decision of the Tribunal which was heard by the primary Judae is limited to questions of law and did not extend to a general rehearing

The second attack made by counsel for the appellant upon the

reasons for judgment of the primary Judge was that, notwithstanding the concession of the appellant that the Tribunal posed the correct test (i.e. whether 1t was satisfied beyond reasonable doubt that the deceased's death did not arise out of or was not attributable to ar service) it went astray on the material before it in reaching a

conclusion adverse to the appellant and that Toohey Jd. erred in not so

It is necessary to refer in some detail to the Tribunal's

findings of fact and to Toohey J.'s assessment of those findings.

The Tribunal, in an extensive review of the facts. referred to the medical history of the deceased qoing back to his war service. The primary Judge noted that there is nothing in the medical records relating to the deceased's period of eligible service of any apparent relevance to the cancer from which he died except for a reference to

November 1945 but the diagnosis of malaria was not confirmed."

Further, the Tribunal noted that according to the deceased's

"own statement at discharge he had not suffered malaria ... on

It was not until 1973 that carcinoma of the rectum was diagnosed. Dr. Waters. a physician, noted on 19 July 1973 that the

deceased started to develop diarrhoea in January 1973 and he said:-

"Rectal examination reveals a mass in the anterior wall of the rectum which feels like a carcinoma.

The primary Judged noted that this diagnosis was confirmed

The appellant's case before the Tribunal, before the primary Judge and before us placed heavy emphasis upon two reports furnished by Dr. Hainsworth of the State Health Laboratory Services. It is important to note that the medical opinions which were before the Tribunal were from doctors who had never examined the deceased but who had read the departmental file relating to him. These doctors were not called as witnesses before the Tribunal. The first report of Dr. Hainsworth of 11 June 1975 stated that he had read the file on the deceased and could find "no direct association between his terminal carcinoma and his death". This was obviously erroneous and was corrected by Dr. Hainsworth in his later report in which he stated that he meant that he could find no direct association between the deceased's terminal carcinoma and his war service. In his first

"However the causes of carcinoma of the rectum are unknown and there could have been some aspect of his war service which predisposed him to subsequent development of carcinoma.

There is some evidence to show that the development of tumours may be related to ailterations in a person's immune mechanisms as the result of chronic infection e.g. malaria. There is no way to prove that this man's death was not the result of his war service and this should introduce sufficient doubt for your appeal to succeed under Section 47 of the Repatriation Act."

Dre. Martin. a Senior Medical Officer (Appeals) made a report

"T have read the veteran's file, including the Advocate's argument. dated 17.6.75, and opinion dated 11.6.75, by Dr. D. Hainsworth, in the summary. ... Dr. Hainsworth speculated that there may have been some aspect of war service which predisposed the deceased to subsequent development of carcinoma. The veteran had short service and was discharged fit. There was no abdominal and bowel complaint recorded in the service documents, nor in the early post-war years. There was some evidence that the veteran had malaria in 1945 on one occasion.

There is no evidence in the veteran's file that his immune mechanisms were interfered with. If war service had interfered with his immune mechanisms one would have expected him to have been uncapacitated by infections at an early age, or for him to have succumbed to a fatal disease much

earler than his ade of death. of 69 vears. In fact, the B.M.O. attending him in his final illness commented on his apparent resistance - 26.4.74,

page 182, 'He is definitely going down hill (Altho' I appear to have said this before), and this is a month later'.

There is no known medical connection between the disability of lumbar-sacral pain and sciatica dating back to 1944, and lumbar~sacral pain and sciatica arising from carcinoma of the rectum. The veteran had two types of pain. one associated with his A/D polyarthritis, and the other associated with the malignancy ... The illness occurred too long after war service to be related-to war service. In mv opinion the veteran's death was N.D.W.S."

il. This lastmentioned reference stands for "Not Due to War

In his report of 8 March 1978 Dr. Hainsworth disagreed with

the opinion given by Dr. Martin. Dr. Hainsworth said:-

"In those carcinomas where aetiological factors are known there is often a surprising length of time between exposure to the aetiological factor and the development of carcinoma. For example a particular tumour of the lung resulted from minor exposure to a certain tvpe of asbestos, the tumours never develop in less than 20 years after exposure and sometimes the interval is as lona as 40 years. It is also quite well known that maliqnant cells can lie dormant for many vears and this feature can again spread the length of time between initiation of the tumour and clinical evidence of 1t.

In the face of the gradually increasing amount of information about the aetiroloay of maliqnant disease it is unwise to be dogmatic and say that a certain period of a patient's life had no significance. There 1s no way to prove that this man's death was not the result of his war service and I feel that the doubt thus introduced should be resolved in favour of the appellant."

In a later report of Dr. Martin dated 7 June 1976 he said:

the Advocate''s argument, dated 22.3.76 with enclosures - medical opinion dated 8.3.76 by Dr. D. Hainsworth ... There is no medical evidence to

Dr. Hainsworth 8.3.76 disagrees with my statement 'that because the illness occurred so long after war service that 1t cannot be related to war service'. He supported his opinion by referring to two situations that are not related to the present arqument ... The time relationship between the onset of the initiating carcinogenic stimulus and

the appearance of ciznical symptoms is unknown. There is no medical evidence to incriminate any factor of war service in the initiation of the veteran's cancer.

If the veteran had pain from cancer of the recto-siqmoid present for many years before diagnosed, I consider other symptoms would have made the diagnosis obvious, such as alteration of bowel habit and bleeding. ... In my opinion the veteran's death was not due to war service."

a Senior Medacal Officer (Appeals). The Tribunal said that: -

"Dr. van den Brenk graduated M.B.B.5. (Melb.) D.T.R.E., F.R.C.S. (Eng.) F.R.A.C.R. He holds specialist degrees in surgery and radiation oncology. He was Professor of Cancer Research London University coupled with Director of the Richard Dimbleby Laboratory of Cancer Research, St. Thomas' Hospital. Medical School and Consultant Physician. St. Thomas' Hospital, London. He was employed for over 30 years since 1947 in the treatment and investigation of malignant diseases and been responsible for the initiation and direction of Cancer Research Laboratories and clinical Research units in Oncology in London and Melbourne as well as holding Consultant posts at a maior London and Melbourne teaching hospitals. The Tribunal find that he is eminently qualified."

"There is no record of Mr. Brown hawing any disease of the alamentary tract during the period of eliaible service. There are certain risk factors, believed to predispose to cancer of the rectum or colon, but the deceased did not develop these diseases. He had some infection illnesses on service but none caused immunosuppression. In any event there is no evidence that immunosuppression causes cancer. If a person became severely depressed through being unable to mount an effective immunological response to a new foreiqn

antigen, such a person would have a qaross haematological disease with panhaemocytopenia and be in a state of health comparable to an individual dying from lethal~~irradiation. He would certainly not survive for another 29 years. Dr. van den Brenk's conclusion was:

'In my opinion to submit that the member became immunodepressed on service (whether or not this has any bearing-on the aetiology of cancer development) is patently false. Refer Dr. Martin's opinion (31.7.75) which I endorse'."

The Tribunal said of Dr. Hainsworth's two reports that they:

""... were not based on any recorded evidence on the member''s file and thus could be considered as speculative as toa causal relationship to war service of the disease that led to the death of the member in this case. Furthermore the Act does not require proof absolute. rather it requires a proof beyond reasonable doubt."

The Tribunal attached considerable weight to the evidence of

"The Tribunal find that he 1s eminently qualified and has aqiven compelling reasons to rebut' the opinion expressed by Dr. Hainsworth and on that basis the Tribunal find that the evidence of Dr. Hainsworth has been destroyed by Dr. Martin and Dr. van den Brenk in regard to this specific case."

"While one might cavil at the use of the term "destroved". there can be no doubt that the Tribunal accepted. as it was entitled to. the evidence of De. Martin and Dr. van den Brenk and not that of Dr. Hainsworth."

The Tribunal had before it a paper given by Sir Edward Dunlop

entitled "The Acceptance of Cancer_.as War Caused". Speaking of Sir

Edward Dunlop's paper dated 1970 the Tribunal said:

"... the Tribunal acknowledges the eminence of Sir Edward in Cancer Research but finds that this reference is a general paper on cancer and does not relate specifically to the case under review. Certain claims in the paper relate to the disease from which Mr. Brown, the member, died but Sir Edward relates colon and rectal tumours with a strona association to ulcerative colitis and toa lesser extent dysentery and irritable colon

disorders. None of these diseases appear in the member's medical records."

The primary Judge found that the Tribunal's assessment of the relevance of Sir Edward Dunlop's paper to the claim before it was an assessment which was open for the Tribunal to make. The Tribunal said that it "must find for the applicant and set aside the Commission's decision unless it is satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim". The Tribunal said that

", the member did not suffer during war service from chronic infection of any kind which might have presumed to have altered his immune mechanisms.

. there is no evidence showing any immune deficiency or any relationship between zmmuno-deficiency and the member's carcinoma of the rectum from which he died.

'No evidence' of course is not the test to be applied. Rather the test 1s: ' Is there evidence of disproof?' and the fact that there is 'no evidence' is one of the factors that the Tribunal must take unto account when deciding for itself whether the Commission's onus of disproof beyond

The Tribunal concluded with reference to the reasons of the

"... those reasons and the medical opinions on which they were based establish beyond reasonable

s bat the ijjness thar waused he member 'a AGUA That LHe i] ainda AH caneed Le: Memkee death was unrelated to his war Service in terms of Section 101 of the Act."

Counsel for the appellant submitted that the present case was one where it was not known one way or the other whether or not some incident in the deceased's war service was related to the ultimate development of his cancer and that in those circumstances the claim for pension must be granted because the possibility that war service had contributed to the cancer had not been negatived beyond reasonable

Counsel relied upon the joint judgment of Keely and

Fitzgerald JJ. in O'Brien v. Repatriation Commission (1984) 53 A.L-R.

477, Where their Honours said at pages 504 and 505:-

"If there is no material in respect of a fact. or if the material 21S neutral in the sense that it leaves the existence of the fact unknown, there is no rational basis for a choice betweén the conclusion that the fact does exist and the conclusion that it does not. The non-existence of that fact is not the only rational conclusion. There is no need that there also be material which points to a 'real' possibility of the existence of that fact. That 'real' possibility 1s left open bv the evidence.

Thus, it may not be established beyond reasonable doubt that incapacity or death is not 'connected with' war service either because there is material

O'Brien's Case went on appeal to the High Court (judgment 27 February 1985). Gibbs C.d., Wilson and Dawson JJ. approved this passage from the joint judgment of Keely and Fitzqerald JJ., but

"Two matters should however be made clear. The first is that although their Honours spoke of the disproof of a fact, s. 47(2) does not require the Tribunal to grant a claim unless it is satisfied beyond reasonable doubt of the non-existence of every evidentiary fact. The question for the Tribunal is whether it is satisfied, beyond all reasonable doubt, that there are insufficient grounds for granting the claim: it will disallow a claim if it 1s satisfied bevond reasonable doubt that 'any fact necessary to establish entitlement' (Law, at p.652) does not exist."

The present case is not one of either neutral or conflicting medical evidence. Drs. Martin and van den Brenk addressed themselves specifically to the medical history of the deceased as revealed by the medical records. They did not simply conclude that the aetiology of the disease was unknown. Each of those medical practitioners concluded that, had the carcinoma been attributable to or arisen out of the deceased's war service. its symptoms would have been apparent

much earlier than thev were. Of Dr. Hainsworth's reports the primary

"|... Dr. Hainsworth's earlier ceport was less a medical opinion than a piece of syllogistic reasoning. That is not to criticise the report; 1t is simply to assess the weight to be attached to 1t in relation to the entirety of the material before the Tribunal. Likewise the concluding sentence of Dr. Hainsworth report of 8 March 1976 is by way of argument rather than medical opinion."

A little later in his reasons for judgment his Honour said:

"No criticism of Dr. Hainsworth is intended when [I

say Chat his reports were essentially argumentative. expressing a view of the operation of the Act."

This is not therefore a case like Repatriation Commission v. Law (1980) 31 A.L.R. 140 (Full Court of the Federal Court); (1981) 36 A.L.R. 411 (Haigh Court) where there was conflicting but unchailenged medical evidence so that the Tribunal could not properly have been

satisfied beyond reasonable doubt that the medical evidence favourable

See also Repatriation Commission v. Byrne (1981) 40 A.L.R.

296 and Lennell v. Repatriation Commission (1982) 4 A.L.N. N29.

; In our opinion the primary Judge correctiy held in the

present case that it was open to the Tribunal to be satisfied beyond

reasonable doubt that the deceased's death did not arise out of or was

I certify that this and the seventeen (17) preceding pages are a true copy of the Reasons for Judgment of the Court

the appearance of clinical svmptoms 1s unknown. There is no medical evidence to incriminate any factor of war service in the initiation of the veteran"s-cancer.

If the veteran had pain from cancer of the recto-sigmoid present for many years before diaqnosed, I consider other symptoms would have made the diagnosis obvious, such as alteration of bowel habit and bleeding. ... In my opinion che veteran's death was not due to war service."

a Senior Medical Officer (Appeals). The Tribunal said that: -

"De. van den Brenk graduated M.B.B.S. (Melb.) D.T.R.E., F.R.C.S. (Ena.) F.R.A.C.R. He holds specialist deqrees in surgery and radiation oncoloay. He was Professor of Cancer Research London University coupled with Director of the Richard Dimbleby Laboratory of Cancer Research, St. Thomas' Hospital, Medical School and Consultant Physiczran, St. Thomas' Hospital, London. He was employed for over 30 years since 1947 in the treatment and investigation of malignant diseases and been responsible for the initiation and direction of Cancer Research Laboratories and clinical Research units in Oncology in London and Melbourne as well as holding Consultant posts at a major London and Melbourne teaching hospitals. The Tribunal find that he is eminently qualified."

"Shere is no record of Mr. Brown having any disease of the alimentary tract during the period of eligible service. There are certain risk factors, believed to predispose to cancer of the reccum or colon, but the deceased did not develop these diseases. He had some infection illnesses on service but none caused immunosuppression. [In any event there is no evidence that immunosuppression causes cancer. If a person became severely depressed through being unable to mount an etfective immunological response to a new foreian

antigen, such a person would have a qaross haematoloaical disease with panhaemocytopenia and pe in a state of health comparable to an individual dying from lethal ~.irradiation. He would-certainly not survive for another 29 years. Dr. van den Brenk's conclusion was:

'In my opinion to submit that the member became immunodepressed on service (whether or not this has any bearing-on the aetiology of cancer development) is patently false. Refer Dr. Martin's opinion (31.7.75) which I endorse'."

The Tribunal said of Dr. Hainsworth's two reports that they:

"... were not based on any recorded evidence on the member's file and thus could be considered as speculative as toa causal relationship to war service of the disease that led to the death of che member in tnis case. Furthermore the Act does not require proof absolute. rather it requires a proof bevond reasonable doubt."

The Tribunal attached considerable weight to the evidence of

"The Tribunal find that he 15 aminently qualified and has qiven compelling reasons to rebut the opinion expressed by Dr. Hainsworth and on chat basis the Tribunal find that the avidence of Dr. Hainsworth has been destroved by Dr. Martin and Dr. van den Srenk in recard to this specific case."

"While one might cavil at the use of the term ""destroved". there can be no doubt that the Tribunal accepted. as .i2t was entitled to, the evidence of Dr. Marcin and Dr. van den Breéenk and not that of Dr. Hainsworth."

The Tribunal had before 1t a paper given by Sir Edward Dunlop

entitled "The Acceptance of Cancer__as War Caused".

Edward Dunlop's paper dated 1970 the Tribunal said:

reference 1S a general paper on cancer and does not

from which Mr. Brown. the member, died but with a and toa

Edward relates colon and rectal tumours strong association to ulcerative colitis lesser extent dysentery and irritable disorders. None of these diseases appear member's medical records."

The primary Judge found that the Tribunal's assessment of the

relevance of Sir Edward Dunlop's paper to the claim before it was an

assessment which was open for the Tribunal to make.

that it "must find for the applicant and set aside the Commission's

decision unless it is satisfiea beyond reasonable doubt that there are

ansurficrent grounds for granting the claim". The Tribunal said that

trom chronic infection of any kind which mignt have presumed to have altered his immune mechanisms.

. chere 1s no evidence showing any deficiency or any relationship

immuno-dericiency and the member's carcinoma of the

'No evidence' of course is not the test to be applied. Rather the test 1s: ' Is there evidences

evidence' 18 one of the factors that the Tribunal must take into account when deciding for itself whether the Commission's onus of daisproof bevond

The Tribunal concluded with reference to the reasons of the

. "... those reasons and the medical opinions on which thev" were based establish beyond reasonable

yar he aos =n -= =, "2 me wae = aOURT [RAT TRE LUnesE Hisued cadead ae Ropes death was unrélaté to his war service in terms of

Counsel for the appellant submitted that the present case was one where it was not known one way oc the other whether or net some incident in the deceased's war service was related to the ultimate development of his cancer and that in those circumstances the claim for pension must be granted because the possibility that war service had contributed to the cancer had not been neqactived pevond reasonabie

Counsel relied upon the joint judgment of Keely and

Pitzaerald JJ. in O'Brien v. Reratciation Commission (1984) 53 A.L.R.

477, where their Honours said at pages 504 and 505:-

"Tf there is no material in respect of a fact, or if the material ais neutral in the sense that it leaves the existence of the fact unknown, there 1s no rational basis for a choice betwen the

conclusion that it does not. The non-existence of that fact is not the only rational conclusion. There is no need that there also be material which points to a 'real' possibility of the existence of that fact. That 'real' possibility 1s left open bv the evidence.

Thus. it may not be established beyond reasonable doubt that incapacity or death is not 'connected with' war service either because there is material

which points positively to a cause of the incapacity or death which is or might be so 'connected' (as, for example, in Law, Byrne and Morcombe), or because of some inadequacy in the material to show the absence of a connection."

O'Brien's Case went on apveal to the High Court (judgment 27

February 1985). Gibbs C.d.. Wilson and Dawson JJ. approved this

passage from the joint judament of Keely and Fitzaerald JJ.., but

"Two matters should however be made clear. The first is that although their Honours spoke of the disproof of a fact, s. 47(2) does not require the Tribunal to grant a claim unless it is satisfied beyond reasonable doubt of the non-existence of every evidentiary fact. The question for the Tribunal is whether it 1s satisfied. bevond all reasonable doubt, that there are insufficient qgrounds for granting the claim: 1t will disallow a claim if it is satisfied bevond reasonable doubt that 'any fact necessary to establish entitlement'

The present case 1s not one of either neutral or conflicting medical evidence. Drs. Martin and van den Brenk addressed themselves specifically to the medical history of the deceasea as revealed by the medical records. Thev did not simply conclude that che aetioloay of the diséase was unknown. Each of those medical practitioners toncluded that, had the carcinoma been attributable to or arisen out or the decsased's war services, 1ts symptoms would have been apparent much earlier than thev were. Of Dr. Haansworth's reports the primary

"ll. Dr. Haansworth's earlier ceport was less a medical opinion than a piece of syllogistic reasoning. That 1s not to criticise the report; it 1s simply to assess the weight to be attached to it in relation to the entirety of the material before the Tribunal. Likewise the concluding sentence of Dr. Haznsworth report of 8 March 1976 1s by way of acgument cather than medical opinion."

A little later in his reasons for juagment his Honour said:

say that his reports were essentiall?y argumentative. expressing a view of the operation of the Act."

This is not therefore a case like Repatriation Commission v. Law (1980) 31 A.L.R. 140 (Full Court of the Federal Court); (1981) 36 A.L.R. 411 (High Court) where there was conflicting put unchallenged medical evidence so that the Tribunal could not properly have been

satisfied beyond reasonable doubt that the medical evidence favourable

See also Repatriation Commission v. Byrne (1331) 46

296 and Lennell v. Repatriation Commission (1982) 4 A.L.N. N29.

. In our opinion the primary Judge correctly held in the present case that it was open to the Tribunal to be satisfied beyond reasonable doubt that the deceased's death did not arise out of or was

I certify that this and the seventeen (17) preceding pages are 4 true copy of the Reasons for Judgment of the Court