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[2004] FCA 1174
Federal Court of Australia
2004-09-14
Hill J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The applicant, Mr Hardman, appeals to the Court from a decision of the Administrative Appeals Tribunal ("the Tribunal") constituted by a Mr Sassella, Senior Member and Dr Lynch and Rear Admiral Horton AO members, affirming the decision of a delegate of the respondent Repatriation Commission rejecting Mr Hardman's claim for payment of a disability pension under the Veterans' Entitlements Act 1986 ("the Act"). That claim was made in respect of a number of illnesses including a claimed post-traumatic stress disorder (or perhaps depression in the alternative), ischaemic heart disease and diabetes mellitus, obesity (hypertension) and alcoholism. 2 The appeal is an application to the Court in its original jurisdiction under s 44(1) of the Administrative Appeals Tribunal Act 1975 and is an appeal on, that is to say, limited to, a question of law. There had been other proceedings between Mr Hardman and the Commission in the Tribunal but it is unnecessary for present purposes to refer to them. 3 It was not in contention that Mr Hardman had served in the navy between 7 July 1963 and 18 May 1972 and that he had rendered operational service from 17 August 1964 to 11 August 1966. 4 Before the Tribunal Mr Hardman's main claim related to post-traumatic stress disorder. The Tribunal rejected this claim for reasons it set out. On the appeal, however, counsel for Mr Hardman conceded that the Tribunal was correct in rejecting his claim in relation to post-traumatic stress disorder, although the reasoning process of the Tribunal was said to be in error. Thus even if Mr Hardman was correct in showing that the Tribunal had erred in law in dealing with his claim in respect of post-traumatic stress disorder, the claim was bound to fail. Accordingly, that part of the Tribunal's reasons as dealt with post-traumatic stress disorder was not, by agreement, considered by the Court on appeal. 5 It was common ground that if Mr Hardman's claim in respect of post-traumatic stress disorder failed, the Tribunal was obliged to consider whether Mr Hardman suffered any other disease and if so whether the other diseases with which he claimed to suffer were war-caused. This the Tribunal in fact did. Nevertheless the Tribunal rejected Mr Hardman's claims in respect of the other diseases to which reference has already been made. It is from this part of the Tribunal's reasons that Mr Hardman now appeals. 6 It may be noted, in this connection that a Psychiatrist, Associate Professor Quadrio gave evidence that Mr Hardman suffered from post-traumatic stress disorder. However, she said additionally that if there were no stressor, she would diagnose depressive disorder. This was not necessarily a diagnosis that Mr Hardman did suffer from depressive disorder and in the event that the appeal is successful it would be necessary for the Tribunal to consider whether he did. However, the Tribunal proceeded on the basis that the alternative diagnosis that Mr Hardman did suffer from depressive disorder was "a fair proposition" to consider but the Tribunal dismissed Mr Hardman's claim relating to depression (and the other illnesses) on other grounds. It is necessary now to consider the basis upon which the Tribunal rejected the claim in respect of depression. On the way the Tribunal dealt with the matter of Mr Hardman's claim in respect of diabetes and ischaemic heart disease, they failed for the same reason as did his claim for depression. It is common ground that if the Tribunal did not err in law in its consideration of the claim relating to depression its decision with respect to diabetes and ischaemic heart disease involved no error of law.
The Tribunal's Reasons 7 It was Mr Hardman's case that the circumstances in which he came to suffer from depression arose when at the age of eighteen he served on the ship HMAS Parramatta. Apparently he suffered from appendicitis as a result of which he was taken off the ship and operated on at a hospital where few people spoke English. He claimed that he was ultimately returned to the ship but by then commenced suffering from depression. Counsel for Mr Hardman identified what were said to be the facts raised by Mr Hardman supporting the hypothesis that the disease he suffered, whether it was post-traumatic stress disorder or depressive disorder was relevantly connected with Mr Hardman's operational service. As recorded by the Tribunal, these "raised facts" were: "(1) When Mr Hardman joined the Parramatta he was a happy, relaxed person who got along with all members of the ship's company (A9 & transcript 16 December 2002, page 42, line 1); (2) Mr Hardman witnessed an Indonesian fisherman being tortured; (3) He has never forgotten the look of fear in the face of one of the Indonesian fishermen (ex A 10/16); (4) Witnessing the torture incident distressed him greatly (T24/120); (5) He experiences flashbacks of the interrogation (T5/42); (6) He attempted to rationalise why he stood there and let it happen (transcript 13 December 2002, page 55, line 37); (7) One night at the Cottage Hospital in Tawau, Mr Hardman saw several Malaysian servicemen remove a wounded Indonesian against his will and heard gunfire shortly thereafter (T24/120)' (8) Mr Hardman was terrified at the time (ex A7/1); (9) When Mr Hardman returned to the Parramatta, following his operation, he was withdrawn, wouldn't talk or go ashore [presumably with others], would get into arguments and was not happy at all (transcript, 16 December 2002, page 42, line 1); (10) Towards the latter part of the Parramatta's service with the Far East Fleet Mr Hardman was really hitting the alcohol (transcript, 15 December 2002, page 29, line 30); (11) By the mid-sixties, Mr Hardman was aggressive, depressed, had become a heavy drinker and spoke of events during this hospitalisation which were abhorrent and the subject of repeated nightmares and appeared and still does appear to be in emotional turmoil (ex A9); and (12) Mr Hardman has the symptoms of post traumatic stress disorder (transcript, 16 December 2002, page 56, line 30 and page 57, line 23)."
The Legislation 8 The relevant statutory provisions under which the issue arises are as follows. Section 120(1) of the Act provides: "where a claim under Part 11 for a pension in respect of the incapacity from …..disease of a veteran…relates to the operational service rendered by the veteran, the Commission shall determine that the …disease was a war-caused disease…unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination." Subsection (3) then provides relevantly: "In applying subsection (1)… the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining…(b) that the disease was a war-caused disease…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."(emphasis added) 9 Section 120A of the Act provides for determination by the Repatriation Medical Authority of statements of principles applicable to kinds of injury or diseases. Subsection (3) then provides relevantly: "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) … that upholds the hypothesis."
The Accepted Principles 10 The Tribunal, after recording that counsel had submitted that the raised facts quoted at para [7] of these reasons, supported depression as the disease assailing Mr Hardman soon after the incident referred to, noted that it had difficulty in seeing that the relationship between the depression and operational service followed from the "raised facts". It continued: "Further, on the material before the tribunal the following is evident: · In T4, an early alcohol questionnaire completed by the applicant, he referred only to stress as a cause of alcohol consumption. There was no reference to depression. · In the several reports and oral evidence by Dr Lumley there was no opinion expressed as to clinical onset of any depressive condition. · Dr Gertler (ex A7/2) took a history of excessive drinking beginning in 1969 and of Mr Hardman being depressed in 1972 when he left the navy. He understood alcohol abuse or dependence as having commenced in 1966. · Psychologist John Hambridge (ex A14) listed a great many of Mr Hardman's symptoms but none related to depressive illness. · In ex R2/2 Mr Hardman provided a description of the causes of his suicide attempt but these did not include depression. · In ex R3, a set of hospital admission notes from 10 July 1977 indicated a diagnosis of acute depressive illness, with nothing to suggest any long term earlier history of that condition. · Associated Professor Quadrio (ex R16/14, 15) identified depression as present in 1969." (at [148] of the Tribunal's reasons) 11 It was common ground that the relevant principles under which the Tribunal was bound to proceed were those set out by the Full Court of this Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-8 but subject to one matter noted later and not here relevant, the Full Court said: "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:
The submissions stated 14 On behalf of Mr Hardman it is submitted that s 120(3) requires the Commission or in the event of a review, the Tribunal to consider the material before it and determine whether to be found in that material there is a reasonable hypothesis. Where the material may indicate matters that are both for and against a claimant, the Tribunal is confined in its consideration only to the matters favourable to the claimant to determine whether there is a reasonable hypothesis. It is only when it comes to the 4th step referred to in Deledio that the Tribunal is required to resolve factual matters which may lead it to accept or reject the hypothesis that the illness is war-caused. 15 For the Commission on the other hand, it is submitted that the Tribunal must consider at step 3 the whole of the material before it, whether that material is adverse to or favourable to the claimant. Then, having regard to the whole of the material, but without considering what the actual facts are, the Tribunal formulates the hypothesis. 16 The difference in the two views is perhaps best seen by reference to the facts in the present case. For Mr Hardman it is submitted that the relevant "raised facts" are that Mr Hardman was happy and relaxed when he joined the ship but that when he returned to the ship following his operation he was withdrawn and depressed. Matters such as the fact that the alcohol questionnaire made no reference to depression or that the reports of Dr Lumley made no record of depression should be disregarded, it is submitted, in considering whether it is possible to formulate an hypothesis of the connection between the disease (depression) and operational service. For the Commission however it is submitted that the requirement that the Commission or in its place, on review, the Tribunal consider "the whole of the material before it" means that all factual matters, whether true or false have to be taken into account in the formulation of the hypothesis, it being for this purpose accepted that the material before the Tribunal is correct. Whether the material before the Tribunal is actually true is, it is agreed, to await step 4. 17 Related to this question of interpretation, which admittedly involves a question of law, is the associated issue whether the matters set out earlier in these reasons in paragraph [7] and claimed by counsel for Mr Hardman to be "the raised facts", were indeed capable of being so characterised.
The Authorities 18 The previous legislation, as it existed prior to 1985, was considered by the High Court in Repatriation Commission v O'Brien (1985) 155 CLR 422. The then Repatriation Act 1920 (Cth) provided that the Commission was to pay a pension, inter alia in the event of incapacity, where incapacity arose out of or was attributable to war service (s 101(1)). In determining that matter, the subsection was specifically not to be taken as imposing any onus of proof on a claimant. An appeal was to be allowed unless the Commissioner was satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim or application or allowing the appeal as the case may be. 19 The majority of the High Court in O'Brien held that the Commission was obliged to grant a claim unless it was satisfied beyond reasonable doubt that there were insufficient grounds for granting it. Where, in a particular case, the material before the Commission, or in the event of a review, the Administrative Appeals Tribunal, did not provide any positive inference in favour of the requisite connection between death or incapacity and war service (ie now operational service), then the Commissioner or on a review the Tribunal was to grant the claim unless satisfied beyond reasonable doubt that there were insufficient grounds to do so: see per Gibbs CJ , Wilson and Dawson JJ at 433-434. 20 The 1920 Act was amended in 1985. The amendments drew on what had been said by Justice Brennan in dissent in O'Brien at 438. His Honour said, at that page: "Section 47 thus operates in a context where an investigation has been carried out with reasonable diligence and where all the relevant facts ascertained in the investigation and furnished by the claimant are before the decision-maker. If the facts thus ascertained support a reasonable hypothesis that the claimant is entitled to a benefit under the eligibility provisions of the Act, the Board or the Commission must determine to grant the claim. If a reasonable hypothesis of entitlement arises on some of those facts, the Board or Commission must determine to grant the claim unless other facts dispel the hypothesis beyond reasonable doubt. If the Board or Commission is satisfied that no reasonable hypothesis of entitlement is supported by the facts or that any such reasonable hypothesis is dispelled beyond reasonable doubt, the Board or Commission should reject the claim. Where, on the whole of the material no reasonable hypothesis of entitlement arises, there are 'insufficient grounds for granting he claim.'" 21 It may be conceded that the amendments must be construed as enacted and not as such, by reference to what was said by Brennan J. Nevertheless, the form they took was clearly based on the dissenting judgment of Brennan J. In the amended form, carried over into the current Act, in s 120(1), the Commission was required to determine whether the injury or disease was a war-caused injury or war-caused disease as the case may be, unless satisfied beyond reasonable doubt that there were no sufficient grounds for making that determination. Subsection 120(3), however, required the Commission in performing its tasks under subs 120(1) to be satisfied beyond reasonable doubt that there was no sufficient ground for determining inter alia that the disease was a war-caused disease if, after considering the whole of the material before it, the Commission was of the opinion that that material did not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. However, no onus was to be taken to be imposed on the claimant of proving any matter that might be relevant to the determination of the claim or application. 22 Two matters are apparent from the language of s 120. The first is the requirement that all relevant facts before the decision-maker have to be looked at. The second is that the reasonable hypothesis has to emerge from all of those facts before the decision-maker. Thus if all of the facts supported a reasonable hypothesis of connection then the Commission was required to determine the claim favourably to the claimant. Adapting what Brennan J had suggested in O'Brien, if some of those facts only suggested a reasonable hypothesis then the Commission was required to grant the claim unless other of those facts dispelled the hypothesis beyond reasonable doubt. If there was no reasonable hypothesis or any reasonable hypothesis was so dispelled, then the claim would be rejected. 23 The High Court next considered s 120(1) and s 120(3) in Bushell v Repatriation Commission (1992) 175 CLR 408. Mason CJ, Deane and McHugh JJ at 413 noted that s 120(3) was not concerned with conflicts in the material before the decision-maker whether those conflicts were of opinion or fact. Its purpose was to ensure that a claim to which s 120 applies is not met unless there was some material which raised the relevant causal hypothesis. Their Honours referred to the Explanatory Memorandum to the Bill which became the Veterans Entitlement Act where it was noted that it was intended that there be some material before a determining authority for it to make a judgment on whether it was satisfied beyond reasonable doubt that there was no sufficient ground to grant a claim. Their Honours continued: "The material will raise a reasonable hypothesis within the meaning of s120(3) if the material pointed to some fact or facts ('the raised facts') which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true." (at 414) 24 Their Honours referred to a decision of the High Court in Commissioner for Government Transport v Adamcik (1961) 106 CLR 292 as illustrative of a case where a claim for damages was accepted where only one doctor has supported that claim whereas others rejected it. It is clear from this discussion that a case could arise where there were facts supporting and rejecting the hypothesis but nevertheless on the material before the Commission (or Tribunal) the hypothesis could be reasonable. Their Honours noted that a hypothesis could not be reasonable if it was "contrary to proved scientific facts or to the known phenomena of nature" and that an hypothesis could not be reasonable if it was "obviously fanciful, impossible, incredible or not tenable, or too remote or too tenuous." They said: "Leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject the hypothesis as unreasonable. As we have earlier pointed out, it is not the function of s 120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its functions under s 120(3) the Commission cannot have regard to the medical or scientific material which is opposed to the material which supports the veteran's claim. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connection between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion." (at 414 - 415) 25 Their Honours then continued to note that if the material raised a reasonable hypothesis then the claim was required to be dealt with in accordance with subs (1), that is to say, the Commission had to determine that the disease etc was war-caused unless satisfied beyond reasonable doubt there was no sufficient ground for making that determination. Their Honours said: "The use of the terms 'the material' and 'raise' strongly suggests that sub-s.(3) is not concerned with the proof or satisfaction of a claim but with whether there is some 'material' which calls for a determination under s 120(1). The phrase '[i]n applying subsection (1) or (2)' in s 120(3) also suggests that s 120(1) is the governing provision." (at 415) 26 At 416 their Honours continued: "The Commission will be satisfied beyond reasonable doubt 'that there is no sufficient ground for making [the] determination' if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination." 27 It would seem from the passages quoted above that the High Court contemplated that among the raised facts there could be facts which were contrary to the hypothesis or which caused the hypothesis to be unreasonable. However, it may be argued, as indeed counsel for Mr Hardman argued, that so long as the raised facts included the hypothesis then the process of evaluation required to be undertaken under subs (1) should proceed even if there were among the raised facts matters which, if true, might disprove the hypothesis. 28 The next decision of the High Court was Byrnes v Repatriation Commission (1993) 177 CLR 564. In it Mason CJ, Gaudron and McHugh JJ elucidated what was said in Bushell and at 569 - 571 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 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. Once a reasonable hypothesis is raised, the question for the Commission is then whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury was war-caused. The Commission will be so satisfied if it is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved, either by proof beyond reasonable doubt that a fact or facts relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis. The passages in the joint judgment in Bushell that indicate that once the 'raised facts' raise a reasonable hypothesis that is the end of the matter unless the raised facts are disproved should not be taken to suggest that proof beyond reasonable doubt of a further, inconsistent fact will not be sufficient, under s 120(1), to preclude a finding by the Commission that the injury was war-caused. The remarks of the majority in Bushell were directed specifically to a situation where the raised facts giving rise to the hypothesis covered 'the whole of the material' bearing on the hypothesis. They were not directed to a case where the veteran relies on part only of the material before the decision maker. Proof beyond reasonable doubt of a fact inconsistent with the reasonable hypothesis would, by implication, demonstrate that 'the factual foundation upon which the hypothesis can operate does not exist'. The position may be summarized as follows: (1) First, sub-s (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, 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." 29 It is obvious from this discussion that their Honours contemplated that the material before the Commission might include matters favourable as well as unfavourable to the claimant. Nevertheless, the Commission could determine that there was, on the material before it, an hypothesis that was reasonable. Proof of facts was not initially to be in issue when determining whether an hypothesis was raised. Subsection (1) of s 120 then applied so that the claim would succeed where the raised facts gave rise to a reasonable hypothesis, unless any one or more of the facts necessary to support the hypothesis was, at a later stage disproved or some other fact in the material before the Commission was proved to be true and was inconsistent with the hypothesis. 30 The High Court in Repatriation Commission v Owens (1996) 70 ALJR 904 rejected an application for special leave to appeal from a decision of this Court. The reasons given by the Court are necessarily thus brief. The Court said: "A majority of the Full Court allowed an appeal from Lockhart J but their Honours seemed to have misunderstood the nature of the issue arising under s 120(3). It is not whether an hypothesis of connection would be reasonable if some facts are ignored: the question is answered by reference to the whole of the material before the Administrative Appeals Tribunal. Although the applicant has shown a prima facie case of error on the part of the majority of the Full Court, the insertion of sections 120A and 120B by the Veterans' Affairs (1994 - 1995 Budget Measures) Legislation Amendment Act 1994 (Cth) substantially diminishes the ground for seeking special leave to appeal. The problem having been elucidated by this Court in earlier cases, it is not appropriate to grant special leave in this case." 31 To understand what the High Court there said, it is necessary to consider briefly what had happened in the proceedings. In the Tribunal it had been held that no reasonable hypothesis had been raised within the meaning of s 120(3) of the Act in circumstances where the appellant's expert had said it was biologically plausible to relate bowel cancer to irritable bowel syndrome or amoebic infection, although there was no researcher which confirmed or disapproved these theories. The expert of the Commission had said the presence of villous adenoma indicated that the cancer was genetic in origin. At first instance Lockhart J dismissed the appeal to this Court. On appeal Einfeld and Drummond JJ allowed the appeal holding that the Tribunal had misapplied the test under s 120(3) in finding that the applicant's expert had not considered the villous adenoma. Their Honours said that the fact that there was evidentiary material which tended to disprove the hypothesis would not of itself be sufficient to make the hypothesis untenable. Davies J dissented. His Honour emphasised that it was necessary to give special attention to the reference in s 120(3) to a "consideration" of "the whole of the material before the Commission." In his Honour's view the subsection directed attention to the facts of the particular veteran's service and circumstances and required the Commission to consider whether the material before it raised a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service. His Honour said at 562: "…the Commission must form its opinion after consideration of the whole of the material before it. From that material as a whole, the Commission must determine whether or not a reasonable hypothesis is 'raised'. In this way the hypothesis is judged to be reasonable, not merely as a general theory or possibility, but as an hypothesis of the cause of the particular veteran's medical condition." 32 It may be accepted as Davies J said that a reasonable hypothesis must be related to the facts of the veteran's medical condition. His Honour's reason for affirming the decision of Lockhart J was essentially that the applicant's witness had propounded what was a mere theoretical possibility rather than a reasonable hypothesis based upon the facts of the applicant's condition. Einfeld J who with Drummond J formed the majority in Owens said at 574: "As Lowerson highlighted at 261, the fact that some evidentiary material may tend to disprove the hypothesis will not of itself be sufficient to make a [sic] hypothesis untenable. Bushell made expressly clear that the raised facts are those which support the hypothesis, not all the material presented on the subject under consideration. Again in Lowerson at 263: 'As will not infrequently happen, some of these facts may tend to disprove the hypothesis, or do so at least as much as they assist to establish it. To the extent that they are in the former category they are not 'raised facts' because they do not support the hypothesis.' Thus what subsection 3 asks is whether the hypothesis is supported or pointed to by the raised facts, not whether there are any other facts that might tend to disprove the hypothesis or whether the hypothesis is raised by each and every fact presented. In my opinion, the Tribunal erred in this regard and misapplied the test under subsection 3." (emphasis added) 33 It seems clear that the approach of Einfeld J was that which was rejected by the High Court in the special leave application. It was that approach which the High Court considered to demonstrate a misunderstanding of "the nature of the issue arising under s 120(3)". Accordingly what was said by the High Court supports the submission of the respondent before me. 34 I was referred to a number of cases in this Court said to bear on the question I have to decide. With respect to counsel for Mr Hardman they do not support his submission. I propose only to refer to some of them. 35 In Bull v Repatriation Commission (2001) 188 ALR 756 the appellant sought to argue that the Tribunal had erred in law in finding that no relevant reasonable hypothesis was raised connecting the injury with the circumstances of service. It was held by Emmett and Allsop JJ with whom Moore J generally agreed that the question whether the material before the Tribunal raised the relevant hypothesis was a question of fact which the Tribunal had determined and that the Tribunal's finding was open to it. At 761 their Honours said: "[21] There is no doubt that the Tribunal is obliged to look at all the material, not just some of it. It is not entitled at this point to find facts, or reject matters. [22] The formation of the opinion called for by s 120(3) involves an assessment of the factual material before it. It involves reaching an opinion about a factual matter. It is in that sense a question of fact…Here the tribunal on the material before it, formed the opinion that a relevant reasonable hypothesis was not raised from the material. The primary judge said that that was a question of fact and that no error of law (and so no question of law for s 44 of the AAT Act) was presented. [23] If the tribunal examined all the material and if the tribunal followed the correct approach to its task under s 120(3) as enunciated in East, any error will be one of fact, unless the opinion was one which could not have been formed by a reasonable person who correctly understood the law under which he or she acted or unless the opinion was one which was not capable of being reasonably formed." 36 Cameron v Repatriation Commission (2003) FCA 1323 involved a submission that the Tribunal had made a legal error by engaging in inadmissible fact finding in looking at the question whether there was a relevant reasonable hypothesis. Allsop J followed the decision of the Full Court in Bull in the judgment of which his Honour had participated and to which his Honour made extensive reference. His Honour referred also with approval, to the judgment of Stone J in Elliott v Repatriation Commission (2002) 73 ALD 377 where her Honour had drawn a distinction between impermissible fact finding by the Tribunal and permissible consideration and analysis of the material before the decision maker. The distinction is a fine one, but one which the legislation mandates. It is clear from her Honour's judgment that her Honour was of the view that the Tribunal was entitled to consider all the material before it in determining whether there was a relevant hypothesis, including material which contradicted the hypothesis as a matter of fact. 37 The facts in Cameron were that the suggested hypothesis was that the veteran suffered from pneumonia caused by a war-caused chronic bronchitis which induced in him a state of fever and delirium and confusion which rendered him unable to protect himself from an oncoming vehicle which caused his death. However, the material before the Tribunal did not support the fact that the veteran suffered fever, delirium and confusion. Not surprisingly the Tribunal found that the material before it did not raise the necessary hypothesis. Allsop J found that the Tribunal had not erred in law. The Tribunal had not proceeded to determine whether in fact the veteran suffered fever, delirium or confusion. 38 Finally, reference may be made to the decision of the Full Court in Arnott v Repatriation Commission [2001] FCA 262, 106 FCR 83. In that case the Full Court found that the Tribunal had erred in law by not confining itself to the facts raised by the claimant. Rather, the Tribunal considered the question of the proof of facts in issue at the stage of determining whether a reasonable hypothesis was raised. The principal judgment was that of Merkel J with whom Spender and Marshall JJ agreed. It seems that at the stage of determining whether there was a reasonable hypothesis the Administrative Appeals Tribunal had rejected as not having happened two of three incidents upon which the hypothesis depended. Merkel J at 90 said: "I have some difficulty with the approach taken by the AAT. It appeared to treat itself as engaged in a fact finding task in relation to the three incidents in order to determine whether a reasonable hypothesis was raised by the material. The AAT evaluated all of the material concerning each incident and made findings of fact, based upon that material, upon which it relied in rejecting the appellant's claim at the third stage laid down in Deledio. For example, implicitly, if not explicitly, it preferred the appellant's account of his pain to Mr Hadley in 1997…to his oral evidence to the AAT… Thus, in evaluating the material before it and making findings of fact on the basis of that material, the AAT was not confining itself to the facts raised by the claimant but rather, was putting proof of facts in issue at that stage rather than at the next stage, the fourth step in Deledio… I would add that if the AAT considers itself as being within the fourth stage then it failed to apply the 'beyond reasonable doubt' standard laid down in s 120(1) of the VE Act."
Conclusion 39 It follows from the above authorities that the Tribunal is required, in determining whether the material before it raises a reasonable hypothesis, to consider all of the relevant material before it, whether or not that material is favourable or not to the hypothesis. Secondly, it is clear that the Tribunal is not to determine the correctness or otherwise of facts raised whether those facts are in favour of or contrary to the hypothesis. Thirdly, in determining whether an hypothesis is reasonable the Tribunal makes a finding of fact which this Court may not overrule unless the finding is so unreasonable that it could not properly be made. 40 In the present case the raised facts were that Mr Hardman did not display depressive symptoms until after he was removed from his ship for the purposes of the operation. He did upon his return to the ship. From these raised facts it may be inferred, it was said, that the depressive symptoms which he thereafter suffered arose from the removal and subsequent operation which took place while he was on operational service. 41 The fact, if it be a fact, that Mr Hardman, at the time he joined the ship, was happy and relaxed but that after he returned from the operation he was withdrawn, may both be said to be raised facts relevant to the hypothesis. However, in the material which was before the Tribunal there were other matters which if true, might go to disproving the hypothesis, namely that the alcohol questionnaire and subsequent medical reports made no reference to depression. It was not for the Tribunal to determine whether these matters were or were not correct as a matter of fact. However, with respect to the submissions, it is not at all clear from the Tribunal's reasons that it did so. It was required to determine, whether on the basis of all the material before it there was raised the relevant hypothesis claimed to be reasonable. It was for the Tribunal to determine whether the raised facts did indeed ground the hypothesis that there was a connection between the depressive disorder from which Mr Hardman claimed to suffer and his operational service. In my view, it was open to the Tribunal to determine by reference to all the material before it, including the reports, that the raised material did not ground the hypothesis (and this was particularly the case because the Tribunal found that there was nothing in the available material which suggested that Mr Hardman received or required "ongoing management" by 1967 which was a requisite component of the Statement of Principle). Accordingly the applicant has not shown that the Tribunal erred in law. Particularly, in my view, the applicant has not shown that at this, the third stage in the Deledio sequence, the Tribunal engaged in fact finding. Rather it did what it was obliged to do, namely consider all of the material before it in determining whether the material before it raised a reasonable hypothesis. It found it did not. 42 It follows that the application so far as it relates to the depressive symptoms, must be dismissed with costs. As the claims in respect of the other illnesses are determined by reference to the rejection of the depression claim it follows that the application must be dismissed with respect to all claims. 43 Mr Hardman must pay the Commission's costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.
Associate: Dated: 14 September 2004 Counsel for the Applicant: C Colborne
Solicitor for the Applicant: Legal Aid Commission
Counsel for the Respondent: N Williams SC & J Jagot
Solicitor for the Respondent: Australian Government Solicitor
Hardman
Repatriation Commission
(1998) 83 FCR 82
(2001) 188 ALR 156
(1985) 155 CLR 422
(1992) 175 CLR 408
(1993) 177 CLR 564
(1996) 70 ALJR 904
(2001) 188 ALR 756
(1961) 106 CLR 292