Bushell v Repatriation Commission

· In the case of a claim made on or after 1 June 1994 that relates to eligible war service (other than operational service), in applying s 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 and some particular service; and (b) there is in force an SoP that upholds the contention that the death is, on the balance of probabilities, connected with that service (s 120B(3)). THE STATEMENT OF PRINCIPLES The Repatriation Medical Authority (hereafter "the Authority") made a determination under s 196B(2) concerning malignant neoplasm of the prostate on 8 March 1995. The determination was amended on 9 December 1996. In its amended form, it states, relevantly: "1. Being of the view that there is sound medical-scientific evidence that indicates that malignant neoplasm of the prostate and death from malignant neoplasm of the prostate can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate or death from malignant neoplasm of the prostate with the circumstances of that service, are: [Authority's emphasis] (a) being exposed to herbicides in Vietnam; or (b) increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate; or [our emphasis] [c] inability to obtain appropriate clinical management for the malignant neoplasm of the prostate. 2. ... at least one of the factors set out in paragraphs 1(a) to 1([c]) must be related to any service rendered by a person."

THE TRIBUNAL'S DECISION The Tribunal's decision can be summarised as follows. The Tribunal stated the "essential issue" before it to be whether the death was "war-caused" within the meaning of s 8 of the 1986 Act. Under the sub-heading "Standard of Proof", the Tribunal noted the following: · Because the Veteran rendered operational service, on "the issue of causation" the "standard of proof" to be applied is that specified in s 120(1) and (3). In all other respects, the standard of proof set out in s 120(4), i.e. "the balance of probabilities", is to be applied. · As the claim was lodged after 1 June 1994, s 120A applies. · The 1995 SoP, as amended in 1996, is "binding" on all decision-makers. For this claim to succeed, at least one of the factors stated in the SoP "must be found to exist and be related to service, to the decision-maker's reasonable satisfaction, meaning on the balance of probabilities"; and "for any hypothesis to be reasonable, the SoP must 'uphold' [it]". · The Authority does not determine an SoP on the basis that the existence of a factor can be or is hypothesised. The Authority is required, under s 196B(2) "to premise its inclusion of a factor on the existence [original emphasis] of a factor that is [original emphasis] related to service - the subsection says that these two matters 'must exist'". If a particular factor is found not to exist, or is not found to be related to service, on the balance of probabilities, then the SoP does not uphold the hypothesis, and according to s 120A(3), the hypothesis cannot be reasonable. The Tribunal stated that the respondent's contention was that factor 1(b) in the SoP was met; but that the Commission contended: (i) the Tribunal could not be reasonably satisfied on the evidence that factor 1(b) was met; and (ii) even if the requisite increase in animal fat consumption could be proved, such increase could not be related to the veteran's service, as required by para 2 of the SoP. The Tribunal referred to the respondent's written and oral evidence as follows: "21. On 3 March 1997 [the respondent] made a written statement. That statement, which to all intents and purposes incorporates the content of a second, undated, written statement, states as follows: 'I met my husband in 1938 when I was living in Bealiba and he was living in Dunolly. He was cutting wood all day to fill his truck. My late husband left school when he was 14 years of age to work with his brother as a wood cutter. In 1938 he would come home for tea but he only had light meals with salads. We were all very poor at that time. I married my late husband on the 7th of December 1940 and we then lived in Dunnoly (sic). From 1940 until he enlisted on the 7th of April 1942 we used to eat light salads in the summer and stew in the winter. We could not afford beef and mutton at that time. After he enlisted he used to come over and see me about once a month. I used to buy a pound of steak which lasted 3 or 4 days but was always stewed. My late husband left for service in the Pacific on the 4th of September 1943 and returned briefly in 1944 and then left for again overseas service and finally came back to Australia on the 7th of January 1946. After he was discharged he had developed a taste for fatty foods, and in particular he loved the thick fat from steak, lamb and pork and vary rarely had a meal without fat being involved. He liked eggs fried in bacon fat and bacon fat on his toast. He used to go fishing and his catch was eaten with chips fried in animal fat. He also ate ice cream and butter in large quantities. This consumption of fat gave him a very red face and he did inform me that when he was in New Guinea during the monsoon the rations were very hard buscuits (sic) and bully beef from a tin which was full of fat.' In oral evidence Mrs. Deledio reiterate[d] that before joining the Army her husband's diet was plain. Light salads in summer, stews in winter. No cakes, no cream. 22. The late veteran told Mrs. Deledio on many occasions how poor his Army diet was. He told her that while in New Guinea in particular he ate hard biscuits and bully beef which he described as dripping with fat. He served in New Guinea for a total of about two years. 23. The late veteran suffered a heart attack in 1974. However, notwithstanding this he continued to indulge excessively in fatty foods. 24. Mrs Deledio explained that when she and her late husband married they were very poor. He worked as a woodcutter and was physically a lean man. In this connection the material before the Tribunal records his weight on entry into the Army was 176 pounds and that upon discharge he weighed 172 pounds. After his return to civilian life she and her husband were somewhat better off financially compared to the two year period prior to him joining the Army. She said that she could not recall the impact post-war food rationing, from 1946 to 1948, had on her being able to obtain the sort of fatty foodstuffs her husband desired." The Tribunal also mentioned evidence from the respondent's sons describing their father's dietary habits in similar terms. The Tribunal referred to the expert opinion evidence of Dr J R Sullivan as follows: "28. Dr Sullivan explained that while carcinoma of the prostate can be familial, the principal cause is considered to be dietary. In his report dated 18 March 1997 he stated in part as follows: 'The mechanism proposed is that the increased fat stores alter the hormonal milieu. Fat cells have a role in processing hormones and precursor hormones. The larger the number of fat cells the greater the change in the hormonal milieu. This in turn alters the growth characteristics of the prostatic epithelium so that the genome of these cells becomes progressively destabilised and malignancy eventually results. Spread beyond the prostate results in the death as in this patient. The diet of Australian Soldiers throughout World War II (particularly those overseas) was high in fat (1). The dietary habits he acquired in the Military over four years were established for a lifetime and set the pathogenic scene for his eventual death 28 years later.' 29. In his report Dr. Sullivan referred also to a study conducted by Dr. Christine Davidson 'The Davidson Nutrient Intake Study', May 1988 ('the Davidson Study'). Dr. Davidson was at the time employed with the Department of Veterans' Affairs. The study report compares the mean nutrient component intakes for adult males in the Australian Army serving in Australia, the Pacific region, and the Middle East, compared with the civilian population through 1942-1946. 30. Table 1 of the study report provides a comparison of mean daily intakes of civilian and defence force diets, as follows: 'NUTRIENT COMPONENT CIVILIAN ARMY Fat (gm) 144 163 Energy (k cals) 3734 3830 % Energy from fat 35 38 Dietary Fibre (gm) 30 38' This data suggests that the Army diet had 9 per cent increase in the energy supply from fat but a 25 per cent increase in fibre content. The slightly higher fat and energy content reflected the larger quantity of meat in the Army diet, as indicated in the report. However, as indicated at page 2 of the study report, the mean content of fat and energy in the Pacific Operational Ration diet was not greater than in the civilian diet. 31. As stated in the study report, the values for the mean daily intakes of nutrients and components were based on limited data. Consequently it was necessary to make various assumptions concerning food type, quantity, edible portion, original nutrient and component levels, and cooking losses."

In expressing its "Findings", the Tribunal said: "35. As I have stated, the Davidson Study report indicates that the mean daily consumption of fat according to the Army ration scale for troops based in Australia was about 163 grammes per day and for troops based in tropical areas it was about 143 grammes per day. The level for civilians was 144 grammes per day. As was submitted by the [Commission], these figures reveal very little difference between the fat content of tropical Army rations and civilian rations and only a marginal and insignificant difference between civilian rations and the Australian home defence ration scale. Given these statistics, as broad as they are, I find that at no time during his service did the late veteran's level of animal fat consumption increase beyond an insignificant amount when compared with civilian rations at that time. Although the evidence of Mrs. Deledio was that prior to joining the Army her husband maintained a very plain diet, there is no evidence as to what the fat level of that diet tended to be. But even if it were to be accepted that the level was low, the evidence in my view would not, on the balance of probabilities, support a contention that while on service the veteran's consumption of animal fat increased significantly by comparison with his pre-service diet." After referring to s 9(1)(b) of the 1986 Act (dealing with "war-caused" injury or disease where the injury is suffered or the disease contracted "arose out of, or was attributable to, any eligible war service..."), the Tribunal went on to say: "It was the [Commission's] submission that [s 9(1)(b)] requires a causal connection, rather than a mere temporal connection, with war-service. That being so, it was asserted that in view of the evidence it could not be said that a causal connection existed between the late veteran's post-service diet and his service diet. 42. I accept the submissions of the [Commission] and find accordingly. There was no causal relationship between the late veteran's service and his post-service diet. 43. As stated earlier, the evidence of Dr. Sullivan was that, on the material available to him, the late veteran's post-service diet satisfied the consumption of fat criteria set out in the relevant SoP. The problem with the doctor's opinion, of course, is that it is not supported by any evidence of an analytical nature in respect of the type and quantities of foodstuffs consumed by the late veteran. Nevertheless, given the doctor's quite firm opinion and the evidence of Mrs. Deledio and her two sons, I find, on the balance of probabilities, that the criteria is satisfied. However, as I have already stated, there was no causal relationship between the post-service diet and the late veteran's service." In expressing its "Decision", the Tribunal said: "44. Given the operation of subsection 120A(3) of the Act (paragraph 10 above), the decision of the Tribunal will be that the decision under review is affirmed." THE REASONING OF THE LEARNED PRIMARY JUDGE In setting aside the Tribunal's decision and remitting the matter, Heerey J held as follows (adapting the headnote to the report): (i) The requirement in s 120A(3) that the SoP must "uphold" the hypothesis, in order for it to be "reasonable", means that the hypothesis must be "consistent with" the SoP (at 274). Therefore, it was necessary for the hypothesis advanced by the respondent to include (as it did) a history of fat consumption as specified in the SoP (at 275). (ii) The 1994 Amendments left intact the reverse onus of proof beyond reasonable doubt as stated in s 120. Accordingly, an SoP must be applied consistently with s 120(1) and (3) (at 273-275). (iii) Applying Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564, once it is shown that the SoP upholds an hypothesis, the hypothesis will, for the purposes of s 120(3), be "reasonable" if it is not contrary to proved or known scientific facts, obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous. If s 120(3) is satisfied, the claim will succeed unless one or more facts necessary to support the hypothesis are disproved beyond reasonable doubt; or if the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt pursuant to s 120(1). But at no stage was there an onus of proof on the respondent (at 275-276). (iv) The function of an SoP is limited to prescribing a medical-scientific standard with which an hypothesis must be consistent. An SoP has no function in relation to the proof or disproof of the particular facts of a veteran's case (at 275). (v) The use of the imperative "must" in the SoP did not indicate a standard of proof to be adhered to by the respondent (at 275). (vi) The hypothesis "advanced" by the respondent was consistent with, and thus upheld by, the SoP. The hypothesis was not otherwise contrary to "proved" or "known" scientific facts or obviously fanciful, impossible, incredible etc., thereby satisfying s 120(3). The Tribunal was then required by s 120(1) to determine that the Veteran's death was war-caused unless it was satisfied, beyond reasonable doubt, that one or more of the facts supporting the hypothesis was disproved or an inconsistent fact was proved (at 275-276). (vii) The Tribunal erred in law by placing the burden of proof upon the respondent. The Tribunal did not consider whether it was disproved beyond reasonable doubt that there was a change for the Veteran, compared with his diet in civilian life, which resulted in the habits he adopted thereafter (at 276). THE COMMISSION'S GROUNDS OF APPEAL By its grounds of appeal, as amended, the Commission contends that his Honour erred in holding that the Tribunal: (i) approached its task on the assumption that the burden or onus of proof was on the respondent to show that the Veteran's diet while in the Army resulted in him partaking in a high fat diet for the rest of his life; (ii) should have placed the burden or onus of proof on the Commission to: (A) disprove beyond reasonable doubt the hypothesis advanced by the respondent; and (B) to disprove beyond reasonable doubt any disputed fact required to exist by the applicable SoP; (iii) should have concluded that the hypothesis advanced by the respondent was upheld by the applicable SoP because the hypothesis attributed to the Veteran a history consistent with one of the factors prescribed by the SoP; (iv) was not required to consider the existence of the factors prescribed by the SoP or their relationships to service, before concluding that the hypothesis advanced by the respondent was upheld by that SoP; (v) was required, once the hypothesis advanced by the respondent was upheld by the SoP in the sense referred to in para (b)(iii) hereof, to determine that the Veteran's death was war-caused unless the Tribunal was satisfied beyond reasonable doubt that: (A) one or more of the facts required by the SoP was disproved; or (B) some other fact inconsistent with the hypothesis was proved. The Commission did not, upon amending its notice of appeal, seek before us to challenge the primary Judge's order setting aside the Tribunal's decision. That much was then accepted. The Commission further accepted the consequence that there had to be a remitter, but contended for different terms to govern the remitter. Instead of a re-determination in accordance with the trial Judge's reasons, the Commission applied for an order for a re-hearing "according to law" (i.e. in accordance with its submissions on the legal position). THE COMMISSION'S ARGUMENTS IN SUPPORT OF THE APPEAL By its written submissions, the Commission argued, inter alia, as follows: · The Commission's submissions to the primary Judge, that the Tribunal was correct in applying the s 120(4) standard of proof to the factors prescribed by the SoP, were made before the Full Court's decision in Repatriation Commission v Bey (1997) 149 ALR 721, as was the primary Judge's decision. The Full Court in Bey considered the process of evaluating facts when deciding whether an injury, disease or death is war-caused and re-stated the fundamental propositions laid down in East v Repatriation Commission (1987) 16 FCR 517. The present case presents the same issue, although in relation to the Act as amended in 1994. · The re-statement of East v Repatriation Commission, endorsed by a five-member bench of this Court in Bey, points the way to the approach which should now be adopted to the application of SoPs to individual claims. That is to say, where an injury, disease or death is claimed to be connected to operational service and an SoP is relevant to the claim, the decision-maker must decide, in the following order, whether - (a) there is an hypothesis of connection to service; (b) that hypothesis includes a connecting factor recognised by the SoP; (c) the whole of the material before the decision-maker points to the existence of that factor and its relationship to service, and the hypothesis is otherwise reasonable; and (d) even if the hypothesis is reasonable, the decision-maker is nevertheless satisfied beyond reasonable doubt that the factual foundation for the hypothesis is disproved or negated by an inconsistent fact.

· Because the primary Judge formulated a different approach to the application of SoPs to individual claims, his Honour erred; and that part of his Honour's orders that remitted the matter to the Tribunal "for determination in accordance with these reasons" should be set aside. His Honour erred by holding that, where an hypothesis is proposed by a claimant and is merely consistent with the SoP, the existence and relationship to service of the nominated factor must be accepted unless the Commission can disprove those facts beyond reasonable doubt. This approach contradicts the terms of ss 120(1), 120(3) and 120(6) and elides a critical aspect of the process emphasised in East and Bey, namely, the step referred to in para (c) above, the step that was inserted in order to overcome the effect of Repatriation Commission v O'Brien (1985) 155 CLR 422. On behalf of the Commission, reliance is placed upon the following observations of Northrop, Sundberg, Marshall and Merkel JJ in Bey (at 724-725): "In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571; 116 ALR 210 at 215 the High Court said of the relationship between subss (1) and (3) of s 120: The position may be summarised as follows: (1) First, subs (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, subs (1) of s 120 is applied. The method of applying s 120(1) and (3) is now well established: (1) One commences with subs (3). The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact. (2) The second step under subs (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the 'raised facts') and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision-maker must identify the facts said to point to it. (3) Whether a hypothesis is reasonable is a question of fact. The decision-maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point. (4) If the decision-maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis. In some cases the hypothesis may assume the occurrence or existence of a 'fact'. That itself does not make the hypothesis unreasonable: Byrnes (at CLR 570) and Critch v Repatriation Commission (1996) 43 ALD 574 at 577." The Commission then submits that the effect of the 1994 Amendments is to add a further step, as a new second step, to the four steps identified in Bey. Accordingly, it is argued, where a claim for pension, related to operational service, is made on or after 1 June 1994, the decision-maker should proceed as follows: (a) The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war service and the injury, disease or death the subject of the claim. The hypothesis may be proposed by or on behalf of the claimant; alternatively, it may emerge from the material before the decision-maker or from material assembled by the decision-maker. The process is administrative and, as such, is inquisitorial in character (see Bushell at 425 (Brennan J)). (b) The second (new) step is to decide whether the relevant SoP upholds the hypothesis that is said to connect the injury, disease or death with the veteran's eligible war service. The SoP will uphold the hypothesis if the connection with eligible war service proposed by the hypothesis is recognised by the SoP - if the hypothesis proposes that the connection is provided by the minimum factor(s) required by the SoP. In the language of Heerey J (at 275), the hypothesis must "fit the template laid down in the SoP". If the SoP does uphold the hypothesis, then the hypothesis is capable of being reasonable - but is not thereby rendered reasonable. (c) The third step is to determine whether the hypothesis is, in the circumstances of the particular case, raised as a reasonable hypothesis within s 120(3). Because the medical element in the hypothesis is determined by the SoP, this step will focus on the circumstances of the veteran's service and inquire whether the material, considered as a whole and its quality evaluated by reference to such factors as relevance, reliability and cogency, points to the existence of the connection with eligible war service proposed by the hypothesis and recognised by the SoP. In conducting the inquiry, the decision-maker must apply the ameliorating provisions in s 119(1)(h) of the 1986 Act and take into account the difficulties that lie in the way of ascertaining the existence of any fact, matter, cause or circumstance. (By s 119(1) it is provided that the Commission: is not bound by any rules of evidence, but may inform itself as it thinks just (s 119(1)(f)); shall act according to substantial justice and the substantial merits of the case (s 119(1)(g)); and without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter cause or circumstance, including any reason attributable to: (i) the effects of the passage of time; and (ii) the absence of, or a deficiency in, relevant official records (s 119(1)(h)).) At this stage, the inquiry is not whether the decision-maker is satisfied that the factor existed and was related to service. The question to be answered presents a lower threshold - namely, whether the material points to the existence of that factor and that relationship. Accordingly, the question will be whether, on a consideration of the whole of the material, the decision-maker is reasonably satisfied as to the lower threshold - namely, that facts can be identified that point to the existence of the factor(s) prescribed by the SoP (being the factor(s) on which the hypothesis is constructed) and point to the relationship of that factor to service (if such a relationship is prescribed by the SoP) so as to raise the hypothesis as reasonable in the circumstances of the particular case. The decision-maker will also ask whether the hypothesis is, in the language in East (at 532) "not... obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous". (d) Whether the hypothesis is reasonable is a question of fact. The decision-maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of the existence of the factors, which are essential to the hypothesis, is not in issue at this point. There is no onus of proof, either on the claimant or on the Commission. However, it is impermissible merely to assume or assert the facts which are said to found the hypothesis. (e) If the decision-maker concludes that the material raises a reasonable hypothesis, the final step is reached. Section 120(1) must then, but only then, be applied and the claim will succeed unless the existence of the required factor(s) or the required relationship to service is disproved beyond reasonable doubt, or the existence of another fact in the material, which is inconsistent with the hypothesised connection to war service, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis. CONCLUSIONS ON THE APPEAL It will be convenient to deal with the appeal by considering the two aspects of the matter taken by counsel for the Commission in developing his arguments on the appeal; that is to say, we will deal first with the "onus of proof" issue and then turn to the method of application of s 120(3) in the present context. (a) The onus of proof issue As has been previously outlined, s 120(5) states that nothing in the Act entitles the Commission to presume that the death of the Veteran was war-caused. Section 120(6) provides that nothing in the Act shall be taken to impose upon any party to a claim for a pension under the Act any onus of proof in relation to any matter that may be relevant to the determination of that claim. The appellant argues that the primary Judge erred in assuming that any "burden" or "onus of proof" to show that the Veteran's diet while in the army resulted in him partaking in a high fat diet for the rest of his life rested on the Commission. His Honour did use the phrase onus of proof at a number of places in his reasons for judgment. For example, at page 263 he said: "Thus the onus of proof differs from that faced by persons seeking government benefits for sickness, unemployment etc, or claiming damages for person injury. It can be difficult enough to establish a causal connection when the relevant event occurred four or five years ago. Witnesses disappear, records and other documents are lost, recollections fade. Yet repatriation claims often concern events more than half a century in the past. Who should bear the burden of such problems? Should a government say to the veteran (more likely than not a volunteer) or the veteran's widow: "You prove it"? As will be seen, legislation up until the 1994 amendments gave a clear answer. The onus was to disprove, beyond reasonable doubt, the factual basis of a claim, not to prove it." At page 273: "If the hypothesis was reasonable in the Bushell/Byrnes sense, then s 120(1) applied and the onus was on the commission to disprove the hypothesis beyond reasonable doubt." At page 275: "At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact. For example, in the present case the factors in the SoP include 70 gm/day consumption for at least 20 years. As it happens there was no dispute in the present case that the veteran's intake in fact was of this order. But if the commission were to deny this, then s 120(1) requires the commission to prove beyond reasonable doubt that the veteran's intake was in fact less than the SoP level." If, as the Commission submits, these passages amount to an imposition of a legal onus on any party to a claim arising under this Act, then his Honour would be in error in so doing. The Commission and the Tribunal when reviewing decisions made under this legislation bear responsibilities (described in s 120(1) of the Act as being "satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination"). Consequently decision-makers at each level of merits review of veteran's entitlements must gather for themselves or have presented to them in proceedings by parties, material relevant to such claims and which is able to assist the decision-makers in their functions under s 120(1). As was pointed out by the Commission, this is an administrative process which is "inquisitorial" in character and a process to which the concepts of discharging legal onuses or burdens of proof and other evidentiary concepts will not generally apply. In McDonald v Director-General of Social Security (1984) 1 FCR 354, Woodward J, with the agreement of Northrop and Jenkinson JJ, said (at 356): "... the onus (or burden) of proof is a common law concept, developed with some difficulty over many years, to provide answers to certain practical problems of litigation between parties in a court of law. One of the chief difficulties of the concept has been the necessity to distinguish between its so-called "legal" and "evidential" aspects. The concept is concerned with matters such as the order of presentation of evidence and the decision a court should give when it is left in a state of uncertainty by the evidence on a particular issue. The use outside courts of law of the legal rules governing this part of the law of evidence should be approached with great caution. This is particularly true of an administrative tribunal which, by its statute "is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate" (AAT Act s 33(1)(c)). Such a tribunal will still have to determine practical problems such as the sequence of receiving evidence and what to do if it is unable to reach a clear conclusion on an issue, but it is more likely to find the answer to such questions in the statutes under which it is operating, or in considerations of natural justice or common sense, than in the technical rules relating to onus of proof developed by the courts. However these may be of assistance in some cases where the legislation is silent." We consider this statement of principle correctly states the proper approach in cases like the present. Here the legislation is not silent on the question of burden or onus. Subsections 120(5) and (6) were enacted in 1986. We do not consider that a full reading of his Honour's reasons, although using terminology more appropriate to the legal process, show him to be doing anything other than analysing the correct approach to the decision-maker's task under s 120(1). References to parties and burdens placed on them in this context amount to no more than accepting the practical situation which occurs in proceedings before the Tribunal where parties present, often in a legal adversarial way, material relevant to the decision-maker's task under s 120(1). They also frequently take pro and contra positions on all the relevant issues. It is preferable that the use of legal terminology relating to legal rules should be used with caution in dealing with administrative decision making. This is particularly the case where the Commonwealth Parliament has seen fit to prevent particular legal evidentiary rules applying to matters arising under legislation as we have in this case. (b) The method of application of s 120(3) after the 1994 amendments In order to understand the issues that arise on this branch of the Commissioner's argument, some reference should be made to the general history of the legislation and to the mischief sought to be remedied by the 1994 Amendments in particular. Heerey J explained these matters in his reasons in describing development of the early legislation, O'Brien's Case, the "reasonable hypothesis" and its operation in Bushell and Byrnes and the role of the SoP. We agree with his Honour's explanation of each of these considerations. It is not necessary for us to restate it or to add to it. In dealing with "operational" service, which is the aspect presently relevant, Heerey J. said (at 270):

"Operational, peacekeeping or hazardous service The reasonable hypothesis requirement applies: s 120(3). If there is an SoP it must 'uphold the hypothesis': s 120A(3). The RMA must set out factors which must exist, and which of them must be related to service, 'before it can be said that a reasonable hypothesis has been raised': s 196B(2)." We agree. His Honour went on to observe (at 273) that "the 1994 amendments left intact the twin pillars of (i) the reverse onus of proof beyond reasonable doubt and (ii) the reasonable hypothesis. Accordingly, the new regime of SoPs has to be given an operation consistent with s 120(1) and 120(3) as expounded by the High Court in Bushell and Byrnes." Later his Honour said (at 273): "Obviously enough, in determining an SoP the RMA is not concerned with the individual circumstances of a particular veteran. The SoP operates in the discourse of hypothesis - a 'tentative answer to a problem under study..." Heerey J added (at 275): "...it is necessary to repeat that the SoP has no function in relation to the proof or disproof (under s 120(1)) of the particular facts of a veteran's case. The SoPs function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent - so that the SoP can 'uphold' the hypothesis. ...the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where an SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact." We agree with each of these observations. Heerey J further explained the relationship between ss 120(1) and(3) and 196B(2) in a passage with which we concur as follows (at 275): "Therefore when s 196B(2) says a factor 'must... exist' and 'must be related to service', it is not interfering with the functions of ss 120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc.). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is: (i) contrary to proved or known scientific facts, (ii) obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or (iii) (since 1994) inconsistent with (not upheld by) an applicable SoP. If the hypothesis is reasonable the claim will succeed unless: (iv) one or more facts necessary to support it are disproved beyond reasonable doubt; or (v) the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt. At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact." In our view, therefore, the learned primary Judge correctly stated the questions of law to be addressed by the decision-maker in a case such as the present where the provisions of s 120(3) and (1) are to be applied in the light of the 1994 Amendments. Later in his reasons, his Honour came to the application of the SoP in this case, and there spoke (at 275) of the "hypothesis advanced" (our emphasis). It is true that the notion of "advancing" an hypothesis is not, in terms, found in the legislation. Rather, s 120(3) speaks of a situation where "the Commission, after consideration of the whole of the material before it, is of the opinion that the material... does not raise a reasonable hypothesis...". But when his Honour's reasons are read as a whole, we are satisfied that in speaking of the hypothesis in the way he did, the Judge had in mind the provisions of s 120(3) and used the word "advanced" to describe the effect of those provisions in a compendious way, having previously explained correctly the meaning and operation of the legislative scheme. Finally, we come to the significance, for present purposes, of Bey. As has been noted, Bey was decided after the decision at first instance here. But, in our view, Bey does not bear upon any of the present questions. The essence of the reasoning in Bey lies in the criticism of the decision in Cooke v Repatriation Commission (1997) 45 ALD 205. In Bey, the majority, speaking of Cooke, said (at 730): "In the passages from the judgments of Einfeld J and Lee J relied on by the primary judge their Honours concluded that the mere possibility of a connection between a disease and war service is sufficient to constitute a 'reasonable hypothesis' on the ground that any hypothesis is no more than a possibility. Accordingly, for the tribunal to say that a reasonable hypothesis is not raised by a mere possibility of a connection reflects a misconception of the task imposed by s 120(3). In our view that course of reasoning ignores the fact that the expression in question is not 'hypothesis' but 'reasonable hypothesis'. While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker." But, as has been seen, the nature of the hypothesis is not, in the sense described in Bey, an issue in the present case. That aspect was common ground between these parties. (See also Repatriation Commission v McLean, Davies J, 17 April 1998, unreported, where (at 8-9) Bey was also distinguished). It follows that we cannot accept this branch of the Commission's argument and in this regard, the appeal fails. At the risk of being repetitious we would restate the course which the Tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 Amendments) 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 that person as follows: 1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

ORDERS Accordingly, we make the following orders: 1. Vary order 3 made at first instance by substituting the word "law" for the words "these reasons". 2. Appeal otherwise dismissed, with costs.

I certify that this and the preceding twenty three (23) pages are a true copy of the Reasons for Judgment herein of the Court

Associate: Dated: 22 April 1998 Counsel for the Appellant: A Robertson SC with P J Hanks

Solicitor for the Appellant: Australian Government Solicitor

Counsel for the Respondent: R R S Tracey QC with D F Hyde