Migration Act 1958 - s 501

Veterans' Entitlements Act 1986 - Ss 5AB, 8, 13, 70, 120, 120A, 196B,

Deledio v Repatriation Commission (1997) 47 ALD 261; (1997) 47 ALD 261; (1997) 25 AAR 396

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408; (1992) 109 ALR 30; (1992) 66 ALJR 753; (1992) 29 ALD 1

Byrnes v Repatriation Commission [1993] HCA 51; (1993) 116 ALR 210; (1993) 177 CLR 564; (1993) 67 ALJR 805; (1993) 18 AAR 1; (1993) 30 ALD 1

Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334; (1998) 26 AAR 548; (1998) 154 ALR 51; (1998) 51 ALD 519; (1998) 82 FCR 374

Ogston v Repatriation Commission [1999] FCA 342; (1999) 56 ALD 789;

Re Millan and Repatriation Commission (unreported, AAT No 12303, 17 October, 1997, Senior Member Beddoe)

Re Ogston and Repatriation Commission (1998) 27 AAR 176

Re Ogston and Repatriation Commission, ( unreported, 1 April, 1999, NG 773 of 1998)

Repatriation Commission v Keeley, (unreported, [200] FCA 532, 28 April 2000)

Repatriation Commission v McLean (1998) 27 AAR 136; (1998) 50 ALD 149

Repatriation Commission v Deledio [1998] FCA 391; (1998) 27 AAR 144; (1998) 49 ALD 193

Commonwealth of Australia v Sciacca (1988) 17 FCR 476; (1998) 78 ALR 279; (1988) 14 ALD 565

DECISION AND REASONS FOR DECISION [2000] AATA 504

Decision The Tribunal affirms the decision of the Repatriation Commission dated 4 July, 1995 and affirmed by a decision of the Veterans' Review Board dated 6 March, 1996.

On 19 April, 1996, the applicant, Mrs Joyce Leone McLean, applied for review of a decision of a delegate of the respondent, the Repatriation Commission ("the Commission") dated 4 July, 1995. The delegate had determined that the death of her late husband, Mr Neville Bruce McLean, was not war-caused within the meaning of the Veterans' Entitlements Act 1986 ("the Act"). That decision was affirmed by the Veterans' Review Board on 6 March, 1996. On 17 October, 1997, the Tribunal set aside the delegate's decision and substituted a decision that Mr McLean's death was war-caused (unreported, [AAT No 12303, Senior Member Beddoe). The Commission appealed to the Federal Court and, in a judgement given on 17 April, 1998, the Federal Court set aside the decision of the Tribunal and remitted this matter to be heard and decided again with or without the hearing of further evidence (Repatriation Commission v McLean (1998) 27 AAR 136 at 143, Davies J). The remitted hearing was delayed pending the gathering of further medical report, the judgement of the Full Court of the Federal Court in Ogston v Repatriation Commission [1999] FCA 342; (1999) 56 ALD 789 (Burchett, Branson and RD Nicholson JJ) and discussions between the parties.

2. At the hearing, Mrs McLean was represented by her solicitor, Mr Vindin and the Commission by Miss Henderson of counsel. The appeal book lodged in the Federal Court proceedings, the Federal Court's judgement, a report from Dr Leyton dated 28 October, 1998 and a report from Dr Smith dated 14 December, 1998 were admitted in evidence. No further oral evidence was given.

3. There were two issues in this case. The first arises from Mr Vindin's submission that, apart from considering whether the hypothesis was consistent with the relevant Statement of Principle under the Act, I was estopped from otherwise considering whether this hypothesis is reasonable in so far as that issue had been reviewed by Davies J. If I am not estopped in that manner, the second issue which I must consider is whether Mr McLean's death is war-caused within the meaning of the Act.

4. There was no dispute between the parties, and I am satisfied, that Mr McLean served in the Royal Australian Air Force ("RAAF") from 13 May, 1940 until 18 July, 1946. That is both eligible war service and operational service within the meaning of the Act. During his service, Mr McLean was an aircraft mechanic and fitter.

5. The Coroner found that, on 24 August, 1953, Mr McLean "was accidentally killed by being struck by a large rock, which became dislodged by a falling tree, and rolled down the steep hillside to where the deceased was standing." (Exhibit A, page 151)

6. Section 13(1) of the VE Act provides that, subject to the VE Act, the Commonwealth is liable to pay a pension by way of compensation to a veteran if his or her death, injury or disease was war-caused. The amount of that pension and the terms under which it is payable are determined by the VE Act.

Provisions relevant to a consideration of whether the conditions are war-caused

7. A veteran's death is taken to have been 'war-caused" if it meets one of the criteria specified in s. 8. In so far this case is concerned, only s. 8(1)(b) is relevant. It provides that:

"... the death of the veteran shall be taken to have been war-caused if:

(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; ..."

8. The standard of proof which must be used in determining whether or not a veteran's injury or disease is taken to be war-caused is set out in s. 120. That section sets out two standards and which of those two is applicable depends upon whether the injury or disease is said to relate to a veteran's operational service or otherwise. Only one that relating to operational service is relevant in this case.

"Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination."

10. Section 120(3) deals with the situation in which the Commission must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining, among other matters, that the disease was war-caused. It provides:

"In applying subsection (1) ... in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a) that the injury was a war-caused injury or a defence-caused injury;

(b) that the disease was a war-caused disease or a defence-caused disease; or

(c) that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person."

11. Section 120(3) must be read with s. 120A of the Act. In so far as it is relevant, it provides that:

"For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a) a Statement of Principles determined under subsection 196B(2) ...;

12. Section 120A(4) provides that s. 120A(3) does not apply if the Repatriation Medical Authority ("RMA") has neither determined a SoP under s. 196B(2) nor declared that it does not propose to make such a SoP in respect of the particular death or injury in issue.

13. The RMA must prepare a SoP in situations prescribed in the Act. In respect of cases to which ss. 120(1) and (3) apply, it has the following role:

"If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

(b) peacekeeping service rendered by members of Peacekeeping Forces; or

(c) hazardous service rendered by members of the Forces;

the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

(d) the factors that must as a minimum exist; and

(e) which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service." s. 196B(2))

14. Section 196B(14) defines the concept of "related to service" in terms consistent with those used in s. 9 for the definitions of "war-caused injury" and "war-caused disease" and of "war-caused death" in s. 8. In so far as this case is concerned, only s. 196B(14)(b) is relevant. It provides that:

"A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:

(b) it arose out of, or was attributable to that service;"

"Sound medical evidence" has the meaning given in s. 5AB(2)

"Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if:

(i) is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or

(ii) in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and

(b) in the case of information about how that kind of injury, disease or death may be caused - meets the applicable criteria for assessing causation currently applied in the field of epidemiology."

15. The manner in which the provisions of ss. 120(1) and (3) inter-related prior to the introduction of SoPs was considered by the High Court in the cases of Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 and Byrnes v Repatriation Commission [1993] HCA 51; (1993) 116 ALR 210. In Byrnes, Mason CJ, Gaudron and McHugh JJ summarised the approach to be adopted in applying those sub-sections:

(1) First, subs(3) of s120 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, sub-s. (1) of s.120 is applied The claim will succeed unless:

(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or

(b) 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." (page 215)

16. In relation to the first step, their Honours had earlier said:

"The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable. In Bushell, Mason CJ, Deane and McHugh JJ said:

'... a hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature." [Commissioner for Government Transport v Adamcik [1961] HCA 43; (1961) 106 CLR 292, at 306] Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous'.

In some cases, the hypothesis may assume the occurrence or existence of a 'fact'. That itself does not make the hypothesis unreasonable. So, in the present case, the appellant's hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the commission did not reveal the extent of the injury which he then suffered." (page 214)

17. The SoPs were introduced after the High Court's judgement had been handed down. The manner in which ss. 120(3) and (4) inter-relate with the provisions of a SoP was considered by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261. An appeal from his judgement was dismissed by the Full Court of the Federal Court (Repatriation Commission v Deledio [1998] FCA 391; (1998) 27 AAR 144, Beaumont, Hill and O'Connor JJ). After considering the structure of the Act and its various amendments and the judgements of the High Court in Bushell v Repatriation Commission and Byrnes v Repatriation Commission, his Honour concluded:

"Therefore when s 196B(2) says a factor 'must ... exist' and 'must be related to service', it is not interfering with the functions of ss120(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. 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. Put another way, the SoP system does not have the effect that some of the facts relevant to a claim, viz those facts which coincide with factors set out in an SoP, have to be proved by the claimant. Such a view would be inconsistent with the retention of ss 120(1) and 120(3) in the face of the Baume committee's in the face of the Baume committee's recommendations [in its report entitled "A Fair Go: Report on Compensation for Veterans and War Widows"]. Still less do the 1994 amendments have the effect, as happened in the present case, that the claimant has to prove all the facts raised by the hypothesis." (page 275)

18. In its judgement on appeal, the Full Court of the Federal Court summarised the course that must be followed in a case involving a SoP. It said:

"... we would restate the course which the Tribunal is to take in a case, such as the present, (ie 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) of the 1986 Act. If no such SoP is in force, the hypothesis will be taken not 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 s 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 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." (pages 159-160)

19. At the time Mrs McLean lodged her claim and the Commission made its decision, SoP 105 of 1995 (as amended by SoPs 334 and 358 of 1995) ("SoP 105") was in force. That SoP relates to lumbar spondylosis. Since then, it has been revoked and a new determination made in its stead on three occasions: SoP 165 of 1996 ("SoP 165"), 52 of 1998 ("SoP 52") and 27 of 1999 ("SoP 27"). The first of those subsequent SoPs was made before Davies J delivered his judgement and the remaining SoPs were made before the hearing of this matter on the remittal.

20. At the hearing of the appeal in this matter, Davies J had been asked to give a direction as to the SoP to be applied and, in particular, to give a direction that the SoP in force at the date of the decision was that to be applied. His Honour noted that there was conflicting authority and declined to make such a direction (page 155). The then President of the Tribunal, Mathews J, considered a further question in relation to the application of SoPs in Re Ogston and Repatriation Commission (1998) 27 AAR 176. In that case, Mrs Ogston had claimed a war widow's pension after 1 June, 1994 but before a SoP had been made in relation to the disease from which her husband had died. A SoP was subsequently made and the Commission applied it in refusing her claim. Mathews J decided that the Commission was bound to apply the SoP in those circumstances. An appeal against her decision was dismissed (Ogston and Repatriation Commission, unreported, 1 April, 1999, NG 773 of 1998). The High Court refused an application for special leave in late November, 1999.

21. The issue of whether the SoP taken into account by the Commission or a subsequent SoP should be taken into account in the review by the Tribunal was considered by the Full Court of the Federal Court in Repatriation Commission v Keeley (unreported, [2000] FCA 532, Lee, Cooper and Kiefel JJ). The Court concluded that the SoP in force at the time the Commission made its decision should be applied in subsequent reviews. An application for special leave has now been lodged to the High Court from the Full Court's judgement, but was unheard at the time of this decision.

22. In the case of Mrs McLean's claim, the factor upon which she relies is the same in each SoP but there are differences in the definitions of the expressions used in the factor. In SOP 105, which was the SoP in force at the time the Commission made its decision, the factor is 1(b) and reads:

"... the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis or death from lumbar spondylosis with the circumstances of a person's relevant service, are:

(b) contracting a significant inflammatory joint disease in the lumbar spine before the clinical onset of lumbar spondylosis; ..."

The factor must be related to any service rendered by Mr McLean (paragraph 2).

23. The expression "inflammatory joint disease" is defined in SoP 105 to mean:

"... a disease affecting a joint or joints where there is swelling, inflammation and pain that persisted for at least five days;" (paragraph 4)

The expression "lumbar spondylosis" is defined to mean:

"... a degenerative joint disease, attracting ICD code 721.3, 721.42, 722.52, 722.73 or 722.93, affecting the lumbar spine, (L1-L5, L5-S1), causing local pain and stiffness, sometimes with sciatic radiation due to nerve root pressure by protruding discs or osteophytes, and having degenerative changes in the lumbar spine;" (paragraph 4)

24. The factor set out in paragraph 1(b) of SoP 105 is mirrored in paragraph 5(b) of each of SoP 165, SoP 52 and SoP 27. The definition of "inflammatory joint disease" in SoP 105 is identical with that in SoP 165 (paragraph 7) but the definition of that expression in SoP 52 and SoP 27 reads:

"'inflammatory joint disease' means rheumatoid arthritis, Reiter's syndrome, psoriatic arthritis, ankylosing spondylitis, or arthritis associated with Crohn's disease or ulcerative colitis;" (paragraph 8).

The expression "lumbar spondylosis" is defined in SoP 165, SoP 52 and SoP 27 to mean:

"... degenerative changes affecting the lumbar vertebrae and/or intervertebral discs, causing local pain and stiffness and/or symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve root compression, attracting ICD ... code 721.3, 721.42 or 722.52." (paragraph 2(b))

25. Mrs Joyce Leonie McLean wrote in a letter dated 4 November, 1996:

"My late husband was not very mobile, particularly in the early mornings. Invariably when getting up of a morning he would say 'Oh!' my bloody back', and plead with me to massage his back to try and ease the pain and get him going for the day. He was not able to undertake any heavy manual work but used to sit down and fix things as he was very clever with his hands. I used to do all the gardening and those sort of jobs as he couldn't with his sore back." (Exhibit A, page 143)

26. In giving oral evidence at the first Tribunal hearing, she said that her husband had started a timber mill just before they were married in January, 1934. He had previously worked in a garage. At that time, her husband was very slight, very active and played a lot of sport, particularly tennis. He did not suffer any problems with his body. During his service, he was a fitter and turner and repaired and checked planes. She was sure that his duties involved lifting and carrying objects.

27. Mrs McLean said that her husband complained of problems with his back quite soon after his return from the war. Sometimes, she said, his back would "... sort of get caught, and he couldn't straighten up, and I used to rub it, and try to - he'd sort of tell me to push on different parts. ..." (Exhibit A, page 70). She also said that he would walk with more of a stoop after the war years. Mrs McLean thought that he was in continual pain but he did not complain. Her husband worked away from home during the week but, when he returned at the weekend, he did not do anything physical and did not lift anything. Before the war, she said, he would have done everything that had to be done. She added that he would put his hand on his back all the time as if he were trying to support it. Mrs McLean thought that, when her husband returned to his timber mill after the war, he would "more or less supervise". She did not visit him at the mill and see what he did there as he had not liked her to go.

28. Mrs Ruth Slogrove, who is the second eldest of Mr and Mrs McLean's five daughters, said that she was only two years of age when her father enlisted. Her brother was born after her father's death. She could not recall her father before the war and could not recall his returning. After the war, she recalled his working at the timber mill. She recalled her father as a very supportive father. She and her brother and sisters played a lot of sport and, while he watched and encouraged them, he would never play with them. Her father would often sleep on the floor and he told her and her sisters that this relieved his pain more so than a bed. If he rested during the day, he slept on a horsehair mattress in one of his daughter's rooms as it was hard. (Exhibit A, pages 64-68 and 144)

29. Mrs Una Gladys Clutterbuck is Mr McLean's sister. She was in her twenties when her brother enlisted and recalled his enjoying good physical health at the time. She saw him when he was on leave during the war. His health continued to be good but she recalled his complaining on a couple of occasions about his back after sitting up all night in the train from Sydney. He made no mention of anything that might have caused him to have a bad back. Mrs Clutterbuck saw her brother about three months before he died. She recalled that they were sitting and talking and her brother had said "oh, this dam back of mine is killing me" (Exhibit A, page 106). Otherwise, he never complained and was not a person to complain. He was a hardworking man with a young family and did not have much time to have any outside social life.

30. Mr Hector McLean is the late Mr McLean's younger brother. He recalled his brother's health before the war as "normal". At that time, his saw mill took up most of his time. During the war, Mr McLean saw very little of his brother and saw him three or four times after it. Each visit only lasted a couple of hours. He has heard his sister, sister in law and others talking of his brother's bad back but he never saw him suffering from a bad back. He did not know what the problem was.

Medical evidence relating to Mr McLean's back condition

31. On 11 September, 1943, Mr McLean was referred for an X-ray of his renal tract after he had experienced four months of aching abdominal pain. A report of that X-ray dated 14 September, 1943 stated that there was a sacralisation of the fifth lumbar segment of the right side. It was said to be congenital in origin. The report queried whether there was a foreign body in the sacral area. (Exhibit A, pages 33-34) On an illegible date in 1944, Mr McLean strained his right latissimus dorsi (Exhibit A, page 32). No other entries in his medical records relate to his back.

32. Dr Douglass Seaton is a consultant orthopaedic specialist who has written two reports; one dated 15 August, 1996 and the other dated 28 October, 1998. In his later report, Dr Seaton wrote:

"... It is true that on folio 38 there is a statement that x-rays taken on 14 September 1943 he had an x-ray of the renal tract which showed out accidentally that there was partial sacralisation of the lumbo-sacral vertebra. This is not, of course, a disorder or disease and is not associated with trauma or work. It is a congenital abnormality of no meaning and it is not a diagnosis of lumbo-sacral spondylosis.

In answer to your questions, there is no material on record suggesting that Mr McLean had inflammation of the lumbar spine, and inflammation of the spine could readily be detected by procedures known for investigation purposes in the early 1950's. Spondylosis accompanied by arthritis can involve inflammation in the spinal column. There is a vast difference between ankylosing spondylitis, which is a rheumatoid disease, and lumbar spondylosis, which is a degenerative disease, both occurring for totally different reasons in the spinal column in those afflicted.

As in my earlier report of August 1996 I consider that the most probable diagnosis of any back condition suffered at the time of his death was lumbar spondylosis, but there is no evidence of this and there is no indication whatsoever that this man had any back condition when he commenced his war service on enlistment on 13 May 1940. There is no evidence on file that this man aggravated any back condition at the time he commenced his war service.

33. Dr Robert Gordon Smith is an orthopaedic spinal surgeon who wrote a report dated 14 December, 1998 (Exhibit D). He said that there was not any evidence or material pointing to the fact that Mr McLean may have had inflammation of the lumbar spine. Even in the early 1950s, certain inflammatory conditions of the lumbar spine could have been detected. Dr Smith expressed the view that sacralisation of the lumbar vertebra, which is a congenital condition of the spine, is usually of no significance. He was unable to find any evidence that Mr McLean's war service might have aggravated any back condition from which he suffered at the time he commenced his war service. Finally, Dr Smith wrote, he could not offer a reasonable hypothesis that Mr McLean's war service might have aggravated a back condition from which he suffered at the time he commenced his war service.

34. Mr Clifford John Jones was employed by Mr McLean as a sawmill hand at his sawmill. He, his son and Mr McDougall had been assisting Mr McLean to cut logs on a property owned by Mr McPhail and to haul them to the sawmill. In a statement made on 8 September, 1953 to the coroner, Mr Jones said that Mr McDougall was felling trees up a steep hill. Mr McLean drove his tractor to the bottom of that hill. Mr Jones went with him and, on their arrival, they saw two trees, that had just been felled, in a steep gully. Mr McDougall was felling a third tree some seventy or eighty yards above them on the steep hill. Mr Jones said that he began to cut a track through the lantana so that the tractor could get to the two trees. Mr McLean and he brushed this undergrowth from the heads of the two trees. As they did that, Mr Jones heard Mr McDougall call to them that the third tree was cracking and to look out. He and Mr McLean continued with their work for a few minutes until Mr McDougall again called out the same warning. Mr Jones said that both he and Mr McLean looked up and then Mr Jones continued brushing the lantana and Mr McLean trimming the heads of the felled trees. Both men were working close together.

35. Mr Jones said that he then heard Mr McDougall shout a third warning and continued:

"... I looked up and in a very short (sic) space of time I saw the tree commence to fall and it appeared to being falling out slightly to our left towards the face of the ridge the deceased and I being in the gully. The deceased called out to me 'Get clear Jack and watch she does not shoot'. Just before the tree commenced to fall the deceased called out to McDougall 'Let her go Neil'. As the tree was falling it appeard (sic) that it may come towards us and shoot into the gully as the other two did. I have had many years experience in the bush and apart from the deceased calling out to me to get clear I could see that we were in danger if we did not act quickly and I jumped over a big log nearby in the undergrowth and lyed (sic) flat alongside the log and the head of the falling tree fell all around me and when it came to rest I could not see the deceased. Just as I run to jump over the log which was only ten or twelve feet away the deceased was near me with an axe in one hand, I am not sure which hand, and I noticed that he turned to go in the opposite direction to me and that was the last time I saw him alive and on his feet. After the fallen tree came to rest and I got up from the log I looked for the deceased ... I then saw the deceased only a few feet away down the hill lying on top of the branches of the fallen tree and he was lying still. ..." (Exhibit A, pages 158-159)

36. Mr Jones then went on to talk about a rock that had been dislodged:

"... I noticed that just below where deceased was lying and directly beneath him about thirty feet away was a very large rock weighing about half a ton stationary amongst the lantana and which had only just recently come to rest there and showed signs of having rolled down with force from up the hill at the same time as the last tree had fallen. This stone would have come down the hill past where I last saw deceased alive. Deceased would be down the hill some twenty feet from where I last saw him. Just be fore the tree was falled (sic) deceased was in his normal good health and in good spirits. I worked in the bush in rough country with him quite a lot and he was always keen to see that his employees were safe from dangers created by falling trees and was more apt to take risk [illegible] any other of his employees risk being injured. I noticed that after we picked up the deceased the axe that he was carrying when I last saw him alive was lying nearby and had the handle broken and which was caused by a sudden heavy impact. This day was fine and clear but a wind was blowing. Because of my bush experience I believe deceased would be keenly watching the falling tree and would not notice any rolling rock that may be coming down the hill just off the course of the falling tree." (Exhibit A, pages 159-160)

37. Mr McDougall also made a statement to the coroner on 8 September, 1953. He said that he had worked for Mr McLean for the previous five and a half years. In so far as his statement addressed the events preceding the felling of the third tree, it was consistent with that given by Mr Jones. From his vantage point, the events surrounding the felling of the tree were:

"... I kept on cutting and there was a space of about another four or five minutes or perhaps more and the tree appeared to be just about ready to fall so I called out again 'This tree is ready to let go' I then heard the deceased say 'Watch out it might shoot". I knew he was warning his men. I then saw Jack Jones get over a log and disappear in the undergrowth away from the line the tree would fall on. I also saw deceased go in the opposite direction and I heard him sing out to me 'Right, let her go'. I them made another few cuts with the axe and the tree fell down the hill towards where the deceased and Jones were. I heard the tree hit the ground which was then out of my sight because as soon as the tree started to fall I quickly went away a few feet from the stump for safety. At the same time as I heard the tree hit the ground I heard a noise like a large rock rolling down the mountain in the direction the falling tree went. This rolling rock sound made me suspicious as regards a danger to deceased and his men so I hurried down the hill after the fallen tree and saw the large rock disappear at the bottom of the gully into some lantana directly on the course where I saw Jones and deceased just be before the tree fell. I also notice that the tree had fallen and shot down into the gully near the first fallen trees. When I got down to the fallen tree I saw Jack Jones ... I hurried to him and saw deceased lying on top of broken branches of the fallen tree and directly in the patch of where I saw the rolling rock. ... It was very steep country where the trees were felled. Being in the deceased company right up until I went up the hill to fall the trees I noticed that he was in his usual good health and good spirits. I have had many years experience in the bush and I believed that the deceased and Jack Jones were down in a gully directly below me and in danger of being injured by the last tree I was falling and that is why I kept warning them and the deceased and Jack Jones also being experienced bushmen I believed that they would heed to my warning and make to a safe spot until the tree fell and came to rest. The large rock which I saw roll down the hill and disappear into the lantana just beyond where I last saw deceased alive would travel with great force. It was a rocky mountain side where the trees were felled." (Exhibit A, pages 162-163)

38. Mr McDougall made a further statement on 26 April, 1996 when he said, in part:

"... Jones was able to escape into some lantana bush and take cover under a large log. McLEAN, restricted by a chronic bad back was not able to escape and was struck and killed by the rock." (Exhibit A, page 145)

39. Mr McDougall also gave evidence at the earlier hearing in the Tribunal. He recalled warning Mr McLean and Mr Jones and then started to chop again. He continued:

"Well, as I say, I sung out to warn them all - that's what we'd been asked to do; and later on they - they scampered around out of the road and Neville sung out, 'Righto, let her go'. And I started to chop again and I chopped a few chops and she cracked again and I sung out, 'There she goes'. And with this wind and the height of the - underneath the butt on the mountain, as it cracked and went, the weight of the tree, instead of going right straight over, it sort of stood up and it catapulted the butt down, which hit a terrific big boulder that was sticking out of the - in the gully - I noticed it when I went up, but anyway I didn't think it'd do anything. But it did, it - it went bowling down, the tree crashed, and that's all I know about that part of it, but they went down - I went down and the others went down and they couldn't find Mac - Neville. ... but you wouldn't have thought he would have - I think - thought he was safe, and this thing would have come down with terrific speed and bouncing through the rubbish and I think it must have been on him before he could get away out of the road a bit. ..." (Exhibit A, page 96)

40. Later in cross examination, Mr McDougall said that he had not seen either Mr McLean or Mr Jones scamper out of the way. He knew that Mr McLean had "sung out" and he knew that they had gone away to his left on the hillside and were "well out of the road" (Exhibit A, page 98). Mr McDougall said that he lost sight of the rock. He thought that it went through rubbish. As far as he could remember, Mr McLean's body was "somewhere back further than where the tree was, but I don't know whether he'd been knocked that way or what, you know, with the force of the impact." (Exhibit A, page 98)

41. With regard to his statement about Mr McLean's back, Mr McDougall said:

"Well, yes, I know that he always complained about his back. He always had a bad back but I suppose we all get bad backs at times, but he was always talking about it." (T documents, page 96)

42. Mr McDougall said in cross examination that Mr McLean would never go out with the log cutters as he was at the timber mill. He would go out when the weather was wet when the haulers could not use their bullocks to get the timber. Mr McLean would use a tractor and get saplings that were good for casework. Another man would go with him. They would get the chain around the sapling and hook it on the back of the tractor which Mr McLean drove. It was not wet on the day of the accident. He did not know what Mr McLean and Mr Jones were doing while he was cutting the tree on that day.

43. Sergeant Robert Theo Wilson was the police officer who attended the scene of the accident. He made a statement setting out what he had observed at the scene and also his interviews with those who had been present. Sergeant Wilson stated:

"... Mr John Jones took me to a spot in a sharp gully to where the heads of trees freshly fallen were lying which was only a few yards up a steep mountain side from where I saw the dead body of the deceased. Mr Jones there pointed to a spot on the ground and said 'This is where I found Neville lying on top of these limbs'. He then handed me an axe which I produce (Exhibit 1) and said this is the axe Neville had in one hand when I last saw him and which he was chopping the tree with just before this last one fell'. Mr Jones then showed me a large rock weighing about half a ton and said 'The last tree brought this rock down from somewhere, you can see it has only just rolled down here into this lantana. That rock was directly under the spot where Mr. Jones indicated had had picked up the deceased. A few yards further up the hill Mr. Jones showed me where he was standing with the deceased just as the last tree commenced to fall and where he last saw deceased alive and on his feet at the time he, Mr. Jones, left him to make for safety. Around this area the mountain side was particularly steep. At this time it was night fall and I then accompanied the ambulance officer and other persons who assisted to remove the body to Mullumbimby. At about 6.30 a.m. on the 29th of August, five days later, I went with Mr. Douglas Dudgeon back to the scene of the accident and took certain measurements. I also made a thorough examination of the large rock previously shown to me by Mr. Jones. This rock was three cornered in shape and had a quantity of green bark apparently from freshly fallen trees nearby adhering to it in several places which indicated that the rock had come down the mountain side and over the fallen tree heads and came to rest in thick lantana undergrowth. I then made a search further up the hill in the direction the trees had been felled and 28 feet from where the large rock was resting I found a large depression in the earth of freshly exposed soil which was obviously the place from where the large rock had been dislodged and over this area were traces of green leaves and broken pieces of tree branches directly indicating that a tree top had recently crashed there. This rock depression was 75 feet from the spot where Mr. Jones indicated he found deceased lying on the tree branches. A further careful examination revealed that 18 feet up hill from where deceased was picked up there was a depression in the ground which was obviously a depression made by the large rock bounding down the hill and such depression was immediately at the spot where Mr. Jones indicated he last saw deceased alive and on his feet. ... One measurement I took disclosed that from the stump of the tree last felled to the spot indicated by Mr Jones as being where deceased was picked up was 62 yards 1 foot. The large rock was 23 feet down hill from that same spot. ..." (Exhibit A, pages 154-156)

44. Dr Lloyd Cameron Gibson was a medical practitioner who saw Mr McLean's body on a stretcher on the hillside on Mr McPhail's property. He examined Mr McLean's body and found various wounds and abrasions as well as a compression of the left side of his chest. The compression could have caused a rupture of his heart and lungs. In Dr Gibson's opinion, Mr McLean's chest injuries were the cause of his death. Those "...injuries could have been caused by the large rock weighing approximately half a ton and of irregular shape coming down with force upon ..." him (Exhibit A, page 153). Death would have been instantaneous.

45. After the war, Mr Leslie Wilfred Sigley operated a carrying business at Mullumbimby with his brother. They knew Mr McLean for seven years from 1946 and would frequently call at his timber mill to pick up sawn timber supplies. Mr Sigley was aware that Mr McLean had suffered from a bad back after his discharge and said that "... this was shown by the way he usually moved around with both hands behind his back in a supportive position." (Exhibit A, page 36) During the seven years he saw him, Mr McLean had not engaged in hard manual work but had supervised his employees at his timber mill. Mr Sigley said in a later statement that, while Mr McLean's bad back restricted his ability to move around quickly, it did not prevent him from performing smaller, less physical, tasks. In his opinion, Mr McLean's lack of mobility would have restricted his mobility to such an extent that it would have prevented him from escaping from the large rock that killed him.

46. The hypothesis put forward by Mr Vindin was that Mr McLean suffered from a congenital condition of sacralisation of the fifth lumbar segment on the right side; he had reported incidents involving a bad back whilst on service; before his service, he had not suffered any restriction of movement because of back pain but, after service, he did; his restriction of movement meant that he could not avoid a rock that fell down a hillside when a tree was felled; and he died as a result of being struck by the rock. A similar hypothesis had been put forward at the first hearing before the Tribunal. Davies J allowed the appeal only on the basis that the Tribunal had not advised the parties that it was considering the matter on the basis of a factor in a SoP not raised by either of them during the hearing.

47. Mr Vindin submitted that, apart from considering whether the hypothesis was consistent with the relevant SoP, I was estopped from otherwise considering whether this hypothesis is reasonable in so far as that issue had been reviewed by Davies J. He referred to the passage from the judgement of Davies J when, after reviewing the evidence and the reasons of the Tribunal for concluding that the hypothesis is reasonable, he said:

"In my opinion, this was a finding based on the facts of the case. Although there were other possibilities. I am satisfied that the hypothesis was raised by the facts which were before the Tribunal. Whether or not the hypothesis was a reasonable one was a matter for the Tribunal. I am satisfied that its decision on this point was open." (page 142)

48. Mr Vindin noted that no evidence different from that tendered at the first hearing and reviewed by Davies J had been tendered before me in relation to all aspects of the reasonableness of the hypothesis apart from its consistency with the applicable SoP. He also submitted that the reasonableness of that hypothesis was a major appeal point and the submissions made on behalf of the Commission were rejected by Davies J. His Honour's views on that issue were not obiter dicta but were essential element of his judgement. Mr Vindin relied upon the following passage from the judgement of the High Court in Sciacca v Commonwealth of Australia (1988) 17 FCR 476:

"The mere circumstance that a finding of fact has been made in earlier proceedings between parties does not lead to the result that there is an issue estoppel as to that fact in later proceedings between the same parties. An issue estoppel will only arise in relation to what Dixon J (as he then was) described in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 532 as 'those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established'. In the following passage in his judgment which has often been referred to with approval (see, for example, Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 597-598), Dixon J said (at 531-532):

'A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, ...

Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the

49. A similar submission to that made by Mr Vindin was among those made to the Full Court of the Federal Court in Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334; (1998) 26 AAR 548 (Black CJ, Burchett and Tamberlin JJ) when it considered whether Purvis J, presiding as a presidential member, erred in reopening and reconsidering the application of s. 501(2)(b) of the Migration Act 1958 in relation to character after the matter had been remitted to the Tribunal by Sackville J. The order made by Sackville J had been to set aside an earlier decision of the Tribunal and to remit the matter to it to be dealt with according to law. The only issue before Sackville J had been whether the Tribunal had correctly found that the "incite discord" ground in s. 501(1)(b)(iii) had been made out. The Minister had conceded that the Tribunal had erred and that the decision should be set aside. Sackville J had agreed with that course and the only live issue before him was whether the matter should be remitted to the Tribunal with a direction that s. 501(2) had no application to the case. His Honour had refused to make such a direction and made the order to which I have referred.

50. On appeal from the decision of The Tribunal, the Full Court of the Federal Court considered matters relating to the effect of the remittal order, issue estoppel, functus officio and discretion. At the heart of its consideration in relation to the remittal order is s. 44 of the Administrative Appeals Tribunal Act 1975 ("AAT Act"). The power given by that section was explained:

"Section 44 of the AAT Act provides for an appeal on a question of law from a decision of the AAT. The only question of law raised in the notice of appeal to Sackville J related to the incite discord ground in s 501. There was no notice of contention or challenge to the findings of Mr McMahon as to s 501(2). No appeal was taken from his Honour's decision.

This court on an appeal from the AAT may make such order as it thinks appropriate by reason of its decision_: s. 44. The expression 'by reason of its decision' delimits the general power to make such determination as it thinks appropriate. That is, orders can only be made if they are appropriate by reason of the decision on the point of law:_ Minister for Immigration & Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441 at 454-455; Director-General of Social Services and Health v Hangan [1982] FCA 262; (1982) 70 FLR 212 at 223. The extent of this power of remittal is further spelt out by s 44(5) which empowers an order setting aside the AAT decision and remitting the case to be heard and determined with, or without, further evidence in accordance with the court's directions. The provisions of subs (5) are not to be taken as limiting the general power in s 44(4)." (pages 560-561)

51. The effect of Sackville J's order to set aside the AAT's decision was set out in the following passage of the Full Court's judgement:

"The order setting aside the AAT decision meant that there was no operative AAT decision and that a determination had to be made by the AAT. The remittal order required 'the matter' to be dealt in accordance with law. The reference to 'law' is of course a reference to the judgment of his Honour together with the relevant statutory and common law." (page 561)

52. If the effect of an order is open to different interpretations, regard may be had to the reasons for judgement (Repatriation Commission v Nation [1995] FCA 1277; (1995) 21 AAR 351 at 360 (Black CJ, Jenkinson and Beaumont JJ). The Full Court did so and found that, had Sackville J intended to limit further evidence, he could have made that specific direction in accordance with s. 44(4) of the AAT Act. He expressly declined to give a general direction excluding the Tribunal from considering the general issues under s. 501(2). In view of that, the Full Court concluded that:

"... the intention and effect of the order, in our view, was that the whole matter was remitted to the AAT, without limitation as to the presentation of further evidence or as to the scope of the matter to be dealt with." (page 561)

53. In relation to the submission that the previous decision of the Tribunal (as opposed to a judgement of the Federal Court) had determined that s. 501(2) did not apply to the applicant in that case and that The Tribunal was bound to determine it in the applicant's favour, the Full Court reviewed the authorities relating to estoppel and concluded:

"The short answer to this submission is that our conclusion that Sackville J's order related to the whole matter, so that the first decision of the AAT was set aside in its entirety, means that nothing remained upon which, on any view, an issue estoppel could be founded." (page 562)

54. Similar reasons led the Full Court to conclude that the Tribunal was not functus officio (page 562). It also considered a submission that the Tribunal had a discretion whether or not to allow the reopening of an issue already determined in the applicant's favour. The Full Court said that it was open to the Tribunal to act on the evidence put before the Tribunal on the previous occasion and to refuse to permit further evidence to be adduced. Whether or not that course was to be adopted depended upon a careful examination of a range of competing interests.

55. As to whether or not it was also open to The Tribunal to conclude that the prior Tribunal's decision should be regarded as determinative of a particular aspect remitted to it for determination, the Full Court said:

"In our view, the essentially administrative nature of the Tribunal's function and the nature of its task in looking to the correct or preferable decision, in circumstances where it is to have regard amongst other things to the dictates of fairness, point to the conclusion that the Tribunal may, in appropriate circumstances, conclude that a previous decision should be applied again as the correct and preferable decision when it is sought to revisit the earlier decision at some later time. Of course, the circumstance that a court has set aside an entire decision may mean that it is either impermissible, or quite inappropriate, to adopt such a course but that would not necessarily be the case where, as here, a particular determination had not itself been the subject of challenge.

In the present case, we think it was open to Purvis J, having considered all the relevant circumstances, to regard the previous decision of Mr McMahon as determinative of the s 501(2) issue and to decide that this issue should not be reopened. Of course, his Honour might have concluded that this course was not appropriate in the circumstances; but it was a matter of discretion and his Honour's reasons lead us to conclude that he did not see himself as having such discretion. In this respect there was an error of law." (page 564)

56. That brings me back to the terms of the order made by Davies J and his reasons in this case. His Honour's order was:

"The decision of the Administrative Appeals Tribunal should be set aside and the matter be remitted to the Administrative Appeals Tribunal to be heard and decided again with or without the hearing of further evidence."

57. It is apparent from the passage of his Honour's reasons, which I have set out above, that he considered that the Tribunal had not erred in certain conclusions that it had reached. He did not, however, remit for re-hearing only those matters upon which he considered it had erred. Rather, he set aside the Tribunal's decision, in its entirety, and remitted it to be heard and decided again. On its face, his Honour's order left the whole of the decision to be reviewed and decided again. That he did so is confirmed by the fact that he expressly declined to make a direction as to which SoP applied. Instead, he advised the Tribunal re-hearing the matter to make findings under the SoP which was operative when the Commission made its decision and any SoP which might be in force when the Tribunal gave its decision. As it could well be the case that the findings to be made in relation to the two SoPs might be different, it would be inconsistent with this recommendation if the Tribunal were also to be considered to be bound by the earlier Tribunal's findings.

58. It seems to me that Davies J remitted the decision to be heard and decided again without any of the restrictions sought to be introduced by Mr Vindin. As is clear from the order of Davies J, that could be done with or without further evidence. Some additional evidence has been submitted but otherwise the evidence is the record of that given at the earlier hearing. As the Full Court of the Federal Court said in Morales, it is open to me to regard the decision of Senior Member Beddoe as determinative on some issues but, if I am to do that, I must have regard to all of the circumstances.

59. At the hearing on the remittal, Mr Vindin acknowledged that the additional medical evidence that he had obtained from Dr Seaton and Dr Smith did not assist him in bringing the case within the SoP relied upon in the Tribunal's earlier decision. Davies J had noted that none of the factors 1(e), (f), (g) and (h) referred to in Dr Seaton's earlier report was applicable to Mr McLean's circumstances. They were not raised at the hearing on the remittal. The practical effect of Mr Vindin's submission is that I need not have regard to any SoP and his client should be successful as Davies J found that the hypothesis was otherwise reasonable. The Tribunal's reasoning, however, was based upon its conclusion that Mr McLean had suffered from symptoms of spondylosis affecting his mobility and so his ability to get out of harm's way when the tree was being felled. The case now put forward by Mr Vindin is not dependent upon any finding of spondylosis but upon an indeterminate back condition. It is a different case and, for that reason, I should consider all of the issues afresh.

60. Both Mr McLean's eligible war service and his death are beyond question and have been established on the balance of probabilities consistently with the requirements of s. 120(4) of the Act. I must consider whether there is a hypothesis linking his eligible war service and whether it is reasonable in accordance with the test specified in sub-sections 120(1) and (3).

61. There is material pointing to Mr McLean's not suffering from any problems with his back prior to his service. That is found in the evidence of Mrs McLean and of his brother and sister. There is also material pointing to his suffering from problems with his back shortly after his discharge from the RAAF and thereafter. That is again found in the evidence of Mrs McLean and of his brother and sister and also in the evidence of Mr McDougall and the statement of Mr Sigley. In the evidence of Mr Sigley, there is material pointing to Mr McLean's suffering from limited mobility when he saw him at the timber mill and there is material in the evidence of Mrs McLean as to his not assisting with physical tasks at home when he would have done so before his war service.

62. There is material in the reports of Dr Seaton pointing to Mr McLean's back problems most probably being lumbar spondylosis which developed as a result of the heavy lifting and carrying that he was required to do as part of his duties during his service in the RAAF.

63. In the evidence relating to the accident, there is material pointing to Mr McLean's having been hit and killed by a rock and to the rock's having been dislodged by a tree which had just been felled by Mr McDougall. That material is found in the coroner's finding and in the statement of Sergeant Wilson after he had investigated the site, interviewed Mr Jones and taken certain measurements. There is material pointing to Mr McLean's not having moved out of the way of the rock sufficiently to avoid being hit.

64. The more difficult question is whether there is any material pointing to Mr McLean's having not moved out of the way of the rock because of his limited mobility. There is material that points to where Mr McLean was last seen by Mr Jones and there is material in the statement of Sergeant Wilson that a depression from the rock was found at that same place. There is material in the statements of Mr Jones and Mr McDougall that points to Mr McLean's being aware of the tree's being felled and the likely paths it would take in its fall. Those same statements contain material pointing to Mr McLean's being aware of the need to move himself out of the path of the tree and to warn Mr Jones to do the same. The statements of Mr Jones and Mr McDougall point to the third tree taking the same path as the earlier two trees.

65. There is no material pointing to Mr McLean's having seen the rock let alone having been unable to get out of its way because of his limited mobility. Mr Jones did not see the rock come down and was not aware of it until after he had found Mr McLean. After the tree had commenced its descent, Mr McDougall heard a noise that was like a large rock and, after hurrying down the cliff, saw a rock disappear at the bottom of the gully into some lantana. It had taken a course directly over where he had earlier seen Mr McLean and Mr Jones. Mr McDougall's evidence does not point to what Mr McLean did after the time that Mr Jones last saw him and before he was hit by the rock.

66. It follows that I consider that the material does not point to a vital part of the hypothesis. Consequently, I have concluded that the hypothesis has not been established and I do not need to consider whether it is reasonable. If I am incorrect in that conclusion, I consider that the hypothesis is not reasonable as it is too tenuous and do so for two main reasons. The first relates to Mr McLean's back condition. In so far as lumbar spondylosis is concerned, there is no evidence that Mr McLean suffered from that condition. It was not revealed on the X-rays taken in 1946. Dr Seaton himself concedes that there is no evidence. There is no other evidence of either lumbar spondylosis or any other back condition having arisen out of, or being attributable to, Mr McLean's eligible war service. The only back condition of which there is any evidence is Mr McLean's sacralisation of the fifth lumbar segment of the right side. The evidence points to its being congenital in origin. The evidence pointing to Mr McLean's suffering back problems after his return from service but not before does not in itself point to the problems having arisen out of, or being attributable to, his eligible war service.

67. If the hypothesis were otherwise reasonable and it were predicated upon his suffering from cervical spondylosis rather than upon a non specific painful back condition, I note that it would not be consistent with factor 1(b) of SoP 105 or any subsequent SoP. That would be so as there is no material pointing to Mr McLean's having contracted a significant inflammatory joint disease in his lumbar spine before the clinical onset of lumbar spondylosis.

68. The second reason why I consider that the hypothesis is too tenuous is based on the reasons why I do not consider that the hypothesis has been made out at all. The statements of Mr Jones and Mr McDougall, who were the two witnesses in the vicinity of the accident, did not see the actions taken by Mr McLean as the tree was felled. Mr Jones was quite properly looking to his own safety as Mr McLean had told him to do while Mr McDougall was out of sight and up the hill. Mr McDougall delivered the final axe cuts to the tree when told to do so by Mr McLean. The evidence of Mr Jones and Mr McDougall points to their not having taken the rock into account in considering the danger to those below the tree. There is no evidence that they expected that it would be dislodged and no evidence that Mr McLean expected it to be dislodged. It was not until Mr McDougall heard a sound after the tree had commenced its descent that he realised that a rock had been dislodged at all. There is no evidence that he shouted a warning if, indeed, a warning would have been in time to assist Mr McLean. Mr Jones did not see the rock at all until after Mr McLean had died and did not take it into account in considering his own safety. The evidence all points to no-one's being aware of the rock until it had started its descent and no-one's seeing it until it was falling into the lantana at the bottom of the gully. There is no material pointing to Mr McLean's seeing it at all and, if he did, there is no evidence pointing to Mr McLean's mobility or otherwise being a relevant factor in his avoiding being hit by the rock.

69. It follows that I do not consider that a reasonable hypothesis has been established connecting Mr McLean's death with the circumstances of his service. For these reasons, I affirm the decision of the Repatriation Commission dated 4 July, 1995 and affirmed by a decision of the Veterans' Review Board dated 6 March, 1996.

I certify that the sixty nine preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)

Signed: .....................................................

Solicitor for the Respondent Australian Government Solicitor