East v Repatriation Commission

MARSHALL AND MERKEL JJ DATE: 21 NOVEMBER 1997 PLACE: MELBOURNE

REASONS FOR JUDGMENT R D NICHOLSON J: I concur with the reasons for judgment of the other members of the Court and with the conclusion this appeal should be dismissed. I wish only to add the following. The effect of the authority of East v Repatriation Commission (1987) 16 FCR 517, Bushell v Repatriation Commission (192) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564 is clear. In the application of s 120(3) of the Veteran's Entitlements Act 1986 (Cth) ("the Act") it is necessary there be material before the decision-maker, unaffected by any notion of onus of proof or by any presumption, which raises a reasonable hypothesis of a causal connexion between the morbid condition and the veteran's operational service: Bushell (supra at 425) per Brennan J. The only question raised by this appeal is whether the requirement for such "material" is satisfied by evidence capable of being characterised as raising only "a mere possibility": cf Cooke v Repatriation Commission (1997) 45 ALD 204 at 214 per Einfeld J and at 203 per Lee J. In my view, a proper understanding of the application of s 120(3) as enunciated by the High Court in Bushell (supra) and Byrnes (supra) is clouded by the negative characterisation of evidence as "a mere possibility". That description leaves unexplained what constitutes such evidence. It is preferable to approach the application of the sub-section in the manner made apparent in the decisions of the High Court; that is by searching for "material" which "raises" a reasonable hypothesis. There may be circumstances in which evidence of an hypothesis by a suitably qualified expert founded upon some grounds whether in medical literature or experience may adduce evidence being material from which a reasonable hypothesis can be found to arise. Such evidence may be capable of description as being "a mere possibility", yet may raise an hypothesis within the principles stated in Bushell (supra) and Byrne (supra). That is why the general description of evidence as "a mere possibility" is not helpful in that it clouds the distinction between an hypothesis raised by the material and an hypothesis of which there is evidence that it cannot be excluded but which is not otherwise raised. The latter is the present case and the Tribunal was correct to conclude that, in the absence of any other evidence raising the hypothesis and in the presence of evidence negative to the credit of the witness (Mr Hadley) giving evidence of non‑exclusion, the hypothesis was not reasonable. In summary, I consider the effect of the authorities on the nature of a reasonable hypothesis and the question of whether a so-called "mere possibility" can qualify as such is as follows: (1) For a reasonable hypothesis to arise, what is required is more than a mere hypothesis. Something more than a possibility consistent with the known facts is required: East (supra at 531). (2) An hypothesis which is fanciful, impossible, incredible or not tenable or too remote or too tenuous will not be a reasonable hypothesis: East (supra at 531). The hypothesis must not be fanciful or unreal: East (supra at 531). (3) An hypothesis can be reasonable without being proved and in that sense may be theoretical: East (supra at 531); Bushell (supra at 414-415). (4) Nevertheless there must be some material which points to some fact or facts ('the raised facts') which support the hypothesis and from which the hypothesis can be regarded as reasonable if the raised facts are true: Bushell (supra at 414). It is from the evidence that the raising of a reasonable hypothesis comes: Bushell (supra at 427). This means the material before the Commission must raise some fact or facts which give rise to the hypothesis: Byrnes (supra at 569-570). It will be this which gives a degree of acceptability or credibility to the hypothesis: East (supra at 531). (5) It would be rare for an hypothesis put forward by a medical practitioner who is eminent in the relevant field of knowledge to be held to be unreasonable: Bushell (supra at 414-415; 430). (6) An hypothesis will not be unreasonable because the medical opinion giving rise to it is in conflict with other medical opinion: Bushell (supra at 415). Nor is it decisive the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists: Bushell (supra at 414). (7) A "mere possibility", in the sense of an hypothesis advanced, eg: by a medical practitioner speaking within the ambit of his expertise, will ordinarily raise a reasonable hypothesis. The evidence of expertise will provide the acceptability or credibility to the hypothesis even if the evidence is the hypothesis cannot be excluded: Bushell (supra at 414 and 430). While eminence in such field alone, in a case where the medical opinion is no more than to the effect the possibility of causation of the morbid condition by the nature of the service cannot be excluded, is close to an hypothesis unsupported by any evidence, it will, however, be a matter of judgment whether the eminence is such as to give rise to raised facts. (8) A "mere possibility", in the sense of an hypothesis unsupported by any evidence of a witness with appropriate expertise to give it acceptability or credibility, cannot qualify as a reasonable hypothesis - it will not be an hypothesis "raised by the facts." (9) An hypothesis which satisfies s 120(3), that is reasonable having regard to the raised facts, will create the position where it cannot be conceived there is any ground for a conclusion by the Commission under s 120(1) that "there is no sufficient ground for making that determination": cf Bushell (supra at 416). In the present case the only evidence capable of raising an hypothesis was evidence which lacked any circumstances giving it credibility. The Tribunal was correct to find it was not a "reasonable" hypothesis. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson

Associate: Dated: 21 November 1997 Counsel for the Applicant: P Hanks & D Mortimer Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: D De Marchi Solicitor for the Respondent: De Marchi & Associates Date of Hearing: 30 September 1997 Date of Judgment: 21 November 1997