Mason v Repatriation Commission

The factual background 10 Mr Mason was born on 22 March 1925 and served in the RAAF from 27 April 1943 to 25 February 1946. That service was "operational service" within s 6 of the VE Act. On 13 May 1996 Mr Mason lodged a claim for pension under Part II of the VE Act, nominating four conditions claimed to be war-caused: anxiety state, stomach problems, back problems and eye problems. 11 On 17 December 1996, following medical examinations, the Commission decided that one condition covered by Mr Mason's claim (gastro-oesophageal reflux) was war-caused and that five conditions covered by that claim, including lumbar spondylosis, were not war-caused. 12 On 5 June 1997 the Commission reviewed its earlier decision under s 31 of the VE Act and decided that Mr Mason's generalised anxiety disorder was war-caused. It declined to review other aspects of its decision of 17 December 1996, as there was no evidence of any of the factors prescribed by the relevant SoP. 13 The Veterans' Review Board on 17 September 1997 affirmed the Commission's decision of 17 December 1996, as varied by the Commission on 5 June 1997. On 19 November 1997 Mr Mason applied to the AAT for review of the decision rejecting his claim for lumbar spondylosis. 14 On 21 August 1998, Mr Mason's representatives and the Commission agreed on the terms of a decision to be made by the AAT under s 42C of the AAT Act, and lodged a request for such a decision with the AAT. The intention of the parties by that agreement, it seems, was to leave the question of Mr Mason's lumbar spondylosis (and cervical spondylosis) for the AAT to decide. Subsequently, Mr Mason withdrew the application in relation to cervical spondylosis, leaving lumbar spondylosis as the only outstanding issue. 15 Mr Mason gave the following evidence before the AAT: · While serving for 9 months in Mildura refuelling aircraft, he repeatedly jumped from the wings of aircraft to the ground (about 3 feet), jarring his back, which sometimes resulted in a "bit of pain", or "a dull sort of an ache", which was treated by "taking Aspros". He could not recall how long the pain lasted. · While travelling in an aircraft between Balikpapan and Morotai, he was "thrown around" when the aircraft suddenly "dropped 900 feet", but he could not recall suffering any pain or soreness afterwards. · While serving for 4 months in Darwin laying concrete floors, he lifted heavy bags of cement, which "probably aggravated it a little". · None of the effects suffered by Mr Mason stopped him from carrying out his duties and he did not seek (or could not recall seeking) any medical assistance or report sick on duty. · Mr Mason could not recall any incident in which he injured or hurt himself in the course of his duties. · Following discharge from the RAAF he would often get spasms, but his back became "chronic" in the 1970s. 16 Mr Neil Cullen, an orthopaedic surgeon, prepared a report for Mr Mason's solicitors in which he noted the following: · Mr Mason's lumbar spondylosis was "more likely to be age-related than due to specific injury and would not be an unexpected finding in Mr Mason at the age of 72 years. Indeed, one would expect these changes to have been developing slowly over a period of 20 or more years". · There was no record of a specific injury to his neck or lower back during his war service. · The "short period of heavy work" undertaken by Mr Mason during his war service "would not have significantly affected the underlying degenerative changes". Rather, the "development of spinal problems…would be more consistent with the natural age-related aetiology". · None of the factors listed in Item 5 of the SoP for lumbar spondylosis "would appear to relate to this gentleman". · Mr Cullen concluded, "it is therefore my opinion that this gentleman's condition is not related to war service or injuries sustained during the course of war service". 17 By contrast, Mr Paul Dumbrell, also an orthopaedic surgeon, had earlier expressed the opinion that the "history of heavy work during his time in service…would be sufficient to cause trauma to the spine…initiating lumbar spondylitic changes which have progressed during the period of his subsequent life", so that "his claim for…lumbar spondylosis should therefore be accepted".

The AAT's decision 18 On 21 August 1998, the AAT stated its intention to affirm the Commission's decision that Mr Mason's lumbar spondylosis was not war-caused. The AAT gave oral reasons for its decision, in accordance with s 43(2) of the AAT Act. 19 On 25 August 1998 the AAT responded to the parties' request for a decision under s 42C of the AAT Act. The decision relevantly provided: "…THE TRIBUNAL DECIDESthat the decision of the Repatriation Commission of 17 December 1996 and the Veterans' Review Board decision of 17 September 1997 be varied as follows: 1. Chronic conjunctivitis of both eyes is a war-caused disability within the meaning of s 9 of the Veterans' Entitlements Act 1986 with effect from 13 February 1996. 2. Pension is payable at sixty percent (60%) of the general rate from the date of effect. 3. In all other respects the Board's decision is affirmed." 20 Also on 25 August 1998 the AAT made the following decision in writing, as required by s 43(1) of the AAT Act: "For the reasons given orally at the conclusion of the hearing IT IS DECIDED that the decision under review in so far as it relates to lumbar spondylosis is affirmed." 21 The AAT did not provide written reasons for its decision. No request was made to the AAT, pursuant to s 43(2A) of the AAT Act, that it provide written reasons for its decision.

1. Ground d - written reasons for decision 22 The hearing of the application commenced before me on 31 July 2000. The first issue that arose related to the fourth ground of appeal, namely whether the AAT was wrong in law in failing to give adequate and proper reasons for its determination. 23 At the commencement of the hearing on that date Mr De Marchi, on behalf of Mr Mason, submitted that attempts had been made to obtain from the AAT reasons for its decision of 25 August 1998 within 28 days, as provided by s 43(2A) of the AAT Act. That section relevantly provides: "(2A) Where the Tribunal does not give reasons in writing for its decision, a party to the proceeding may, within 28 days after which a copy of the decision is served on that party, request the Tribunal to furnish to that party a statement in writing of the reasons of the Tribunal for its decision, and the Tribunal shall, within 28 days after receiving the request, furnish to that party such a statement." 24 Mr De Marchi submitted that, at the relevant time, he was under the impression that the Commission had sought written reasons from the AAT. Mr De Marchi contended that the Commission had, in any event, made a request for written reasons by telephone on 1 or 2 October 1998. However, the correspondence in relation to this matter shows that the AAT did not have any record of a request for reasons being made by either party until 21 January 1999. 25 In any event, neither the telephone request, assuming it was made, nor the written request by the applicant, was made within the requisite 28 days, and consequently the AAT was not obliged to provide written reasons for its decision. 26 A major difficulty facing the applicant at the hearing was that there were not before me any reasons of the AAT, out of which the errors of law allegedly made by the AAT were said to arise. Mr De Marchi sought to overcome this difficulty by having included in the appeal book a document purporting to be a transcript of the oral reasons given by the AAT. 27 Mr Hanks QC, on behalf of the Commission, objected to the admission of the transcript as evidence of the reasons of the AAT, on the basis that the transcript had not been reviewed by the AAT or certified as a true copy of the AAT's written reasons. Mr Hanks submitted that Mr Mason had not proved, in accordance with s 43(4) and (5) of the AAT Act, that the transcript accurately recorded the AAT's reasons. Those subsections provide: "(4) Without prejudice to any other method available by law for the proof of decisions or orders of the Tribunal, a document purporting to be a copy of such a decision or order, and to be certified by the Registrar or a Deputy Registrar to be a true copy of the decision or order, is, in any proceeding, prima facie evidence of the decision or order. (5) Subsections (3) and (4) apply in relation to reasons given in writing by the Tribunal for its decision as they apply in relation to the decision." 28 Mr De Marchi sought to have the transcript of the hearing before the AAT admitted on the basis of a certificate, which he sought to tender, from the transcript writers, Auscript. That certificate certified that the transcript was a true copy of what was on the tapes which recorded the hearing. Mr Hanks objected to this method of proof on the basis that it did not accord with the procedure specified in s 43(4). 29 Mr Hanks submitted that the transcript was hearsay. He referred to s 64 of the Evidence Act 1995 (Cth) which creates an exception to the hearsay rule and provides that the hearsay rule does not apply to oral evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence. Mr Hanks also referred to s 67 of the Evidence Act which states that before a party intends to rely on such hearsay evidence, that party must give reasonable notice in writing to the other party. It was submitted that no such notice had been given in this case in respect of the transcript. 30 In the circumstances, I considered it appropriate that I adjourn the matter in order to give Mr De Marchi an opportunity to prove the transcript formally as a true and accurate record of what was said by the AAT. 31 The matter resumed before me on 21 August 2000. On that day Mr De Marchi called as a witness Mr Hall, who had appeared as an advocate for the Commission at the hearing before the AAT, to give evidence in relation to the accuracy of the transcript. Mr De Marchi adopted this course as the tapes of the AAT proceeding were no longer in existence. Mr Hall gave evidence that to the best of his recollection, the transcript accorded with what was said by the AAT on 21 August 1998. 32 As a result of Mr Hall's evidence, Mr Hanks very fairly conceded that the evidence of the transcript was now sufficiently proved for the purpose of exposing the reasons of the AAT to scrutiny to see whether some error of law was disclosed. Mr Hanks imposed a caveat on this concession to the effect that the general inhibition that this Court observes against reading too closely the reasons of a decision-maker would be all the more applicable by reason of the fact that before me was a copy of what had only loosely been proved to be a transcript of reasons, and not a certified copy of those reasons. 33 As a consequence of these events Mr De Marchi abandoned ground (d) of the appeal.

2. Other grounds of appeal 34 Grounds (a) to (c) of the appeal are concerned with whether the AAT was "wrong in law" in determining that lumbar spondylosis was not war-caused, in its application of ss 120 and 120A of the VE Act, and in its application and interpretation of the SoP. Although these matters overlap somewhat, I will consider separately the three main issues as they were developed during the hearing before me.

(a) Consideration of existence of a "reasonable hypothesis" 35 The applicant submitted firstly that the AAT fell into error in failing to recognise that the first step of the decision-making process was to see whether the material before the AAT raised a reasonable hypothesis, in accordance with s 120(3) of the VE Act. In determining that question, it was submitted, the AAT was permitted to assume that the trauma had taken place during Mr Mason's service. Moreover it was not entitled to reject the hypothesis merely because there were some factors set out in the SoP which may not fully have been met. Put another way, the applicant submitted that in considering whether there was a reasonable hypothesis raised by the material, the AAT erred in undertaking that consideration by superimposing onto the factors which pointed to that hypothesis the opposing factors that were against the hypothesis. In substance, the submission was that those opposing factors should have been disregarded at that stage. 36 In support of this submission the applicant relied on the decision of the Full Federal Court in Repatriation Commission v Stares (1996) 66 FCR 594. Their Honours said at 601: "Nor do we understand the High Court in [Byrnes v Repatriation Commission (1993) 177 CLR 564] to say that an assumption is only permissible at the stage of determining whether or not an hypothesis is reasonable and we see no good reason why the permissible use of an assumption should be confined to that stage in the process. The question s.120(3) requires to be asked is whether all or some of the facts raised by the material before the decision-maker gave rise to a reasonable hypothesis connecting the veteran's injury with war service: see Byrnes' Case at 571. An affirmative answer to that question is not necessarily dependent upon the hypothesis being free from assumptions about a particular fact or facts. Whether the circumstance that a particular fact is assumed leads to the conclusion that the material before the decision-maker does not give rise to a reasonable hypothesis connecting a disease with the circumstances of the particular war service must depend upon all the circumstances of the case in question." 37 The applicant submitted that the approach taken by the AAT in the present case was contrary to that outlined by the Full Court of this Court in Repatriation Commission v Deledio (1998) 83 FCR 82. In that case their Honours summarised the course to be taken by the AAT in respect of s 120 of the VE Act as follows (at 97-98): "1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved." 38 The applicant submitted that the AAT erred in failing to consider, at the initial stage, whether on the material before it a reasonable hypothesis was raised, without challenging that hypothesis by having regard to matters contrary to that hypothesis. That is, it applied s 120(1) before deciding whether there was a reasonable hypothesis, and had engaged in "fact finding" before it was appropriate to do so. By taking this 'short cut', the applicant submitted, the first step of the process identified by Deledio had not been undertaken and accordingly the decision ought not be permitted to stand. Importantly, Mr De Marchi submitted, "[t]hat [initial] step - unless, of course, we accept that it rolled everything into one - wasn't done".

(b) Interpretation of the Statement of Principles 39 Secondly, the applicant submitted that the AAT failed to apply the facts of Mr Mason's case to the template in the SoP to see if the material raised a reasonable hypothesis, in accordance with the third step set out in Deledio. That is, the AAT failed to interpret correctly the language of the SoP. 40 The applicant submitted that on the evidence of Mr Mason the AAT was permitted to infer that the factors identified in the SoP were made out. The evidence given by Mr Mason that, inter alia, he suffered twinges of pain and that rest and aspirin relieved the pain, permitted the AAT to infer that it was acute pain, in accordance with the relevant factor of the SoP. Similarly, the evidence of repeatedly jumping from the wings of an aeroplane in boots and of twisting and pulling heavy hoses to fill the aircraft was sufficient to allow the inference that he suffered from a trauma to the lumbar spine within the definition of that phrase in the SoP, and in particular the first part of that definition: "…an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent …". 41 In support of this contention the applicant relied upon s 119 of the VE Act and in particular subsections (g) and (h). Those subsections provide that in making a decision or determination under the VE Act, the Commission shall act according to substantial justice and shall take into account the various difficulties associated with the passage of time. He submitted that the AAT erred by virtue of its disregard for or incorrect interpretation of that section. The AAT should have taken into account the fact that the events that caused the applicant's injuries occurred over 50 years ago, and it was impossible for him to recall the specific events in detail. He submitted that s 119 enabled the AAT to infer that the applicant suffered from acute pain or that the length of the period of pain might have met the requirement in the SoP. It was submitted that the AAT instead had incorrectly approached the matter by saying, "we cannot utilise the section to fill gaps required by the legislation", and that it had thereby ignored "the spirit" of the legislation.

(c) Standard of satisfaction adopted by the AAT 42 Finally, the applicant submitted that if one or more of the disputed facts was a component of the SoP, then the Commission was required to disprove that fact beyond reasonable doubt before the AAT could reject the hypothesis as reasonable. The applicant submitted that the AAT had erred in not following this course. 43 In support of this submission the applicant drew attention to the wording used by the AAT: "we can't be satisfied that those injuries amount to an injury to the lumbar spine"; "we can't be satisfied and we are not satisfied on what we have heard that the symptoms complained of fit within the wording of the definition of "trauma to the lumbar spine"; and "we could not find as a fact that the symptoms were acute." He submitted that the language used by the AAT did not accord with the requirement of s 120(3) of the VE Act that the AAT be satisfied beyond reasonable doubt that the facts relied upon were disproved. The AAT, therefore, had erred in law. 44 The applicant also submitted that the language used by the AAT indicated that contrary to s 120(6) of the VE Act the AAT had imposed upon the applicant an onus of proof rather than simply assessing whether there were factors that pointed to the hypothesis. Subsection 120(6) provides: "(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on: (a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or (b) the Commonwealth, the Department or any other person in relation to such a claim or application; any onus of proving any matter that is, or might be, relevant to the determination of the claim or application." 45 The applicant submitted that the AAT incorrectly imposed an onus of proof on the applicant at the initial stages of its investigation, when deciding whether an hypothesis was raised. He referred in particular to the following words of the AAT in its oral reasons for decision in support of this submission: "Applying those symptoms to the definition of trauma to the lumbar spine, we can't be satisfied that those symptoms amount to an injury to the lumbar spine which is caused by, using the words of the definition:…"

(a) Consideration of existence of a "reasonable hypothesis" 46 The respondent submitted that the AAT correctly followed the required decision-making process and that no error of law could be said to have arisen. It contended that Deledio suggests that the decision-maker is to go through the stages of the process as if each one was discrete and insulated from the other. However, the reality of the process is that the question which inevitably would be in the mind of the decision-maker when looking at the material and trying to determine whether the material raises an hypothesis is, "What sort of hypothesis am I looking for?" 47 In East v Repatriation Commission (1987) 16 FCR 517, the Full Court of this Court considered the introduction of the "reasonable hypothesis" concept. Their Honours said at 533: "A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities." 48 It was necessary for the hypothesis raised by the material before the AAT to include the elements prescribed by the SoP. The SoP prescribed the essential content of what is a reasonable hypothesis, for s 120(3) purposes, capable of connecting lumbar spondylosis with the circumstances of Mr Mason's service. Because the existence of one of the factors specified in clause 5 of the SoP was an essential ingredient of that hypothesis, the material before the AAT must point to one of those factors. It is this consideration which is central to the decision-making process of the AAT under s 120. 49 The respondent submitted that, contrary to the applicant's assertion, the AAT did not apply s 120(1) of the VE Act before deciding whether there was a reasonable hypothesis. The respondent submitted that the AAT's decision had been inevitable, given the requirements of the SoP and the applicant's evidence. 50 In any case, if the AAT had fallen into that error, then no practical consequences would flow from it. If the AAT was satisfied beyond reasonable doubt that the factual foundation required to support a reasonable hypothesis (the foundation prescribed by the SoP) was not made out, then the claim was bound to fail - even if a reasonable hypothesis was raised on the material. The AAT's decision would not have been different if the error had not occurred. 51 The respondent disputed the applicant's submission that the AAT was permitted to assume that the trauma to the lumbar spine had taken place during war service in order to find that the evidence pointed to or raised an hypothesis. The respondent noted the applicant's reliance on Byrnes and referred to the decision of Kenny J in Connors v Repatriation Commission [2000] FCA 783. Her Honour made the point that it is now essential that the material before the decision-maker must point to one of the factors prescribed by the SoP, and that an hypothesis must be supported by evidence pointing to each individual element in the SoP for the hypothesis to be reasonable. Her Honour said (at par 19): "..there is nothing in Byrnes, [Bushell v Repatriation Commission (1992) 175 CLR 408] , or [Repatriation Commission v Bey (1997) 79 FCR 364] that would lead me to accept the proposition that a hypothesis need not be supported by evidence pointing to each individual element of it in order to be reasonable for the purposes of s 120(3). As Byrnes at 571-2 shows, if a hypothesis assumes the existence of a fact and is reasonable, then the assumption must be one that is pointed to by the material before the decision-maker." 52 The respondent submitted that when regard is had to the evidence before the High Court in Byrnes (which was that the applicant had injured his neck in a diving accident and had been hospitalised for several days; the High Court found that it was proper for the AAT to assume that the injury was a serious one), it can be seen that the reference to an "assumption" is in truth a reference to an inference which is open on and pointed to by the evidence. This is in contrast to the case of Mr Mason where there was simply no evidence allowing any such inference to be drawn.

(b) Interpretation of the Statement of Principles 53 The respondent submitted that it was a question of fact for the AAT as to whether the material before it raised or pointed to Mr Mason suffering a physical injury of the kind defined in clause 7 of the SoP during his service. Bearing in mind that the SoP required an injury to the lumbar spine resulting in acute symptoms and signs of pain, tenderness, and altered mobility or range of movement, within 24 hours of the injury, and lasting for at least a week, the AAT's conclusion that the history given by the applicant did not satisfy that requirement, or did not "fit the template of the SoP", was the only decision open on the evidence. 54 In interpreting the language of the SoP, the respondent referred to the decision of Finn J in Harris v Repatriation Commission [2000] FCA 873. That case involved consideration of SoP No. 105 of 2000 (which, for present purposes, is in the same terms as No. 165 of 1996), and in particular the meaning of "trauma to the lumbar spine" as defined in that SoP. His Honour said at par 32: "The requirement, then, that there be "signs and symptoms" of each of the three stipulated matters [ie. pain; tenderness; and altered mobility or range of movement] necessitates that there be an indication of, or phenomenon evidencing, each: see eg definition II of "sign" and that of "symptom" in the Shorter Oxford English Dictionary ("SOED"). Moreover, given the requirement that the signs and symptoms must be "acute" - ie that they be sharp or act "keenly on the senses": SOED, "acute"; there would need to be significant manifestations, variously, of pain, of tenderness and of altered mobility etc. As the respondent contends, the definition contemplates a significant injury." 55 The respondent submitted that in the definition the word "acute" modifies the words "signs and symptoms" such that there must be acute signs and symptoms of pain, acute signs and symptoms of tenderness and acute signs and symptoms of altered mobility or range of movement where those acute signs and symptoms last for a period of at least one week. This means that if one has acute signs and symptoms of pain but the person's mobility or range of movement is not is not acutely altered, then one does not fall within the template of the SoP. The extent of the altered mobility or range of movement is not specified in quantifiable or percentage terms in the SoP, but it is clear that it has to be significant, because it must be an acute sign and symptom of altered mobility. 56 The AAT's reasoning, the respondent submitted, is in line with this approach. Having reviewed the evidence of Mr Mason, all of which it fully accepted, and having focussed on the word "acute", the AAT was entirely justified in arriving at the decision it did. Indeed, the respondent submitted that this decision was inevitable. The AAT explained that it was satisfied beyond reasonable doubt that the factor did not exist. It explained that it was not satisfied, after considering the whole of the material, that any reasonable hypothesis was raised (necessarily, of the kind required by the SoP). 57 The respondent submitted that even if the applicant's evidence could meet the requirements of the first part of the definition of "trauma to the lumbar spine", that is if the AAT could find that Mr Mason's jumping from the wings of an aeroplane and twisting and pulling heavy hoses to fill the aircraft indicated the "force of an extraneous physical or mechanical agent", then this was not enough to satisfy the SoP. 58 The respondent submitted that the definition is a composite definition and that the SoP requires the decision-maker to approach the matter in the way of a checklist. If one part of the definition is missing then there cannot be trauma to the lumbar spine as defined in the SoP. Even if the AAT misunderstood the part of the definition that refers to injury caused by the force of an extraneous physical or mechanical agent, that would not be an error which vitiated the AAT's decision because there would remain the other elements which were not raised or pointed to by the material. 59 In respect of the applicant's attempt to invoke s 119 of the VE Act, the respondent noted and adopted the submission of the applicant in respect of s 119(1)(h), in as much as the applicant submitted that the AAT correctly stated, "Well, we can't utilise that particular section of the act to ground entitlement". Nor does s 119(1)(h) authorise or require a decision-maker to ignore the evidence before it and decide the case on the basis of quite different evidence. 60 The respondent submitted that one must approach the construction of provisions such as s 120 of the VE Act according to their ordinary language, taking into account the history, general context and purposes of the Act. The respondent conceded that if any ambiguity were to arise, then one would resolve that ambiguity in favour of the applicant, given that the VE Act is beneficial legislation. Nevertheless, it was submitted, it is beneficial legislation that closely defines the categories of person to whom, and the circumstances in which, benefits are being made available.

(c) Standard of satisfaction adopted by the AAT 61 In response to the applicant's submission that the AAT had erroneously imposed on the applicant an onus of proof, the respondent submitted that the AAT's language of "satisfaction" was entirely appropriate in the context of making the decision required by s 120A(3) of the VE Act. The decision under that section (that is, is the hypothesis, as raised by the material, upheld by the relevant SoP?) is not a determination to which s 120(1) of the VE Act applies - a determination under s 120(1) would follow an affirmative decision under s 120A(3). The decision under s 120A(3) is a decision in respect of a matter arising under the VE Act. Therefore, pursuant to s 120(4), the matter is to be decided to the AAT's "reasonable satisfaction". 62 In Lodkowski v Comcare (1998) 53 ALD 371, Goldberg J considered whether the use of similar language by the AAT vitiated error. Here the objection was to the following underlined words: "The tribunal cannot be satisfied, on the balance of probabilities, that, after 6 July 1995, Mrs Lodkowski continued to suffer an ailment or injury caused by the accident in 1990." 63 His Honour noted at 386 the submission that the notion of onus of proof had no part to play in proceedings before the AAT. His Honour went on to say that it was apparent that the AAT was not satisfied of the matter referred to. The AAT's reference to the civil standard of proof, which his Honour described as "language appropriate to an onus of proof analysis", did not show that the AAT had misapprehended the matters on which it had to be satisfied. 64 The respondent submitted that if use of that composite phrase, "cannot be satisfied, on the balance of probabilities", did not indicate that the AAT had imposed an onus of proof on a party, how can the use of the expression, "cannot be satisfied", in the present case, demonstrate the imposition of such an onus? 65 The respondent submitted that the AAT was required to place the hypothesis, as raised by the material before it, against the template of the SoP. The AAT was then required to make a decision - did the hypothesis fit the template? The AAT, it was submitted, could only answer that question by forming an opinion or reaching a state of satisfaction. 66 The respondent submitted that when the decision of the AAT is read as whole it is clear that the AAT concluded that: (a) it was satisfied (beyond reasonable doubt) that the factor prescribed by par 5(g) in the SoP did not exist. Indeed, it used those words in response to a question by the Commission's advocate, Mr Hall, during the hearing; (b) no reasonable hypothesis, consistent with the SoP, existed on the evidence; and (c) it was not satisfied that any reasonable hypothesis was raised by the whole of the material connecting injury with service rendered by the applicant. 67 The respondent submitted finally that, in any event, the AAT's finding that Mr Mason's evidence did not bring him within the template of the SoP is a finding of fact and is not reviewable by this Court under s 44 of the AAT Act.

Findings 68 In arriving at a decision in respect of all of the matters raised by the applicant, it is important to bear in mind that the reasons for decision given by the AAT were delivered orally. It is also important to observe the general injunction against over-zealously scrutinising the manner in which reasons of administrative bodies such as the AAT are expressed, particularly when those reasons are delivered orally: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

(a) Consideration of existence of a "reasonable hypothesis" 69 In respect of the applicant's initial submission that essentially the AAT confused the steps to be taken, as outlined in Deledio, I accept that strictly speaking this error did occur. It is clear that the AAT did not approach the manner precisely as set out in Deledio, in that it did not separately determine each of the four steps in that order. In this regard, it appears that the AAT did take a short cut, as submitted by the applicant, and that it did not formally determine or state whether a hypothesis was raised or pointed to on the material, in accordance with the first step identified by Deledio. 70 For present purposes, I do not need to decide whether or not such a strict process need be adhered to. What is clear, however, is that the AAT approached the matter by asking whether after a consideration of the whole of the material a reasonable hypothesis was raised or pointed to. For the hypothesis to be reasonable, it was necessary for the AAT to find that the hypothesis included the elements of the SoP - see Repatriation Commission v Gosewinckel [1999] FCA 1273. This is what the AAT was required to do and this is what it has done. Having done so, it concluded that it should answer that question in the negative. 71 In this sense, then, although the process may not strictly have accorded with that outlined in Deledio, I am satisfied that the AAT arrived at its decision in a properly reasoned manner, albeit in a manner that did not delineate, as clearly as it should have done, between the various steps in the process. The decision made by the AAT encapsulated both the examination of a reasonable hypothesis and a dismissal of that hypothesis as not being reasonable. It did so concurrently with an examination of the SoP, which revealed that the requisite factors were not present. 72 In arriving at this decision, I take into account the fact that this decision was made by the Veterans' Appeal Division of the AAT, a specialist body which deals constantly with the provisions of the VE Act. It is clear from a reading of the oral decision that it was aware of its obligations under the legislation; at the end of its decision the AAT stated unequivocally, "…and just applying the words of the introduction to factor 5 of the instrument, we cannot be satisfied that factor 5G does exist as a minimum and it follows therefore that it cannot be said that a reasonable hypothesis has been raised connecting lumbar spondylosis with the circumstances of service." (emphasis added) 73 Although I accept in part the applicant's submission on this ground, for the reasons stated above I do not accept that this error resulted in the AAT arriving at a decision which is legally flawed, and which should be set aside. I would therefore dismiss this ground of appeal.

(b) Interpretation of the Statement of Principles 74 The AAT's finding that Mr Mason's condition did not fall within the definition of the SoP is a finding of fact that is not reviewable by this Court. I am satisfied that the AAT correctly interpreted the definition of the SoP, consistent with the approach of Finn J in Harris. The applicant, however, wishes to invoke s 119(1) in order to allow an inference to be drawn that Mr Mason did suffer a trauma to the lumbar spine, within the definition of that term in the SoP. 75 Both parties noted that it is not the function of s 119(1) to fill in gaps, where the evidence does not assist the applicant's case. This is of course correct. The function of s 119(1) is set out in Repatriation Commission v Bey (1997) 79 FCR 364 where four judges of a five-judge Court said at 373-4: "…in order for the hypothesis advanced by the respondent to be reasonable, there must be material pointing to a connection between his disease and war service. The material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119(1)(g). The requirement to act according to substantial justice does not replace the Tribunal's obligation to act in accordance with law. Paragraph (h) of s 119(1) is a provision of the same character as par (g): see the words which introduce it - "without limiting the generality of the foregoing". Thus, like par (g), it does not authorise the Tribunal to depart from the meaning of provisions of the Act as expounded by judicial decisions." (footnotes omitted, emphasis added) 76 I am satisfied that the applicant cannot rely on s 119(1)(g) or (h) in establishing that the AAT erred in its decision. In the AAT's view, Mr Mason's evidence simply did not point to a connection between his lumbar spondylosis and war service, as required by the SoP. The role of s 119 is not to invent evidence which may serve to establish that connection. Inevitably cases of this type will involve problems of remembering details of events, and s 119(1)(h) is designed to ensure that those matters are taken into account. Those matters are not, however, to prevail over the structure and text of the remaining provisions of the VE Act. 77 I therefore reject the applicant's submission on this ground.

(c) Standard of satisfaction adopted by the AAT 78 The applicant submitted that the AAT had imposed on him an onus of proof, in contravention of the VE Act, and that this was plain from the language used in the oral reasons for decision given by the AAT. It is beyond question that no such onus can be imposed by the AAT in cases such as this. In Bushell v Repatriation Commission (1992) 175 CLR 408 at 424, Brennan J said that s 120 of the VE Act: "…is not concerned with an onus of proof. Sub-section (6) says so expressly, It is concerned with a standard of satisfaction to which the administrative decision-maker must attain in finding the relevant facts…". 79 His Honour's reference to "a standard of satisfaction" echoes the discussion by the AAT in Re Dell and Repatriation Commission (1986) 9 ALD 596 at 600: "The first problem arises in relation to the question of the so-called "onus of proof". That is a term now frowned upon, and abandoned in the VE Act, except that in s 120(6) of that Act the existence of 'any onus of proving any matter' on any party is negatived. What is now referred to is the "standard of proof". How can there be a "standard" of proof in a vacuum, unrelated to a proposition that use of the word 'proof' means that something has to be proved and thus somebody has to prove it, is something that mystifies a person trained in evidentiary and forensic concepts. Perhaps the expression 'standard of satisfaction' would have been preferable." 80 The AAT went on to say: "The substantive provisions of [s 120] speak in terms of the Commission being "satisfied, beyond reasonable doubt" and of deciding a matter "to its reasonable satisfaction". But it is we think prudent to bear in mind that it is administrative satisfaction that is in question, and that to speak of "proof" can be misleading." 81 In the present case, the AAT used expressions such as "we cannot be satisfied", on several occasions. The respondent submitted that this was merely the language of decision-making, and that the AAT could just as easily have used the words, "we decide", or "we find", and that nothing material turns on the words that were used in this case. 82 It is clear that the AAT concluded that no reasonable hypothesis of the type required was demonstrated after having considered all of the material before it. It made one finding of fact, which was that the applicant's case did not fit the SoP. The AAT followed the wording of the legislation by saying, "In making the decision that we did, we were mindful of the operation of section 120(3) of the Veterans' Entitlements Act. We were not satisfied after consideration of the whole of the material before us, that any reasonable hypothesis connecting injury with the service rendered by Mr Mason. It follows from that by the force of operation of section 120(1) that because we could not be satisfied beyond reasonable doubt that there was no sufficient ground for making the determination, that no reasonable hypothesis could be said in the circumstances to exist." 83 I am of the opinion that the AAT was well aware of its obligations under the legislation, and that it correctly followed the decision-making process set out in s 120 of the VE Act. The AAT was entitled to arrive at its decision, and I do not believe that it did so via an erroneous method. It must be remembered that the AAT delivered only oral reasons. This may go some way to explaining its use of the language of "satisfaction". That language may, in some cases, reflect error. It may demonstrate that an administrative body has impermissibly had recourse to the concept of an onus of proof. I am of the view, however, that no such error occurred in this case. I do not accept this ground of appeal. 84 I therefore dismiss the appeal. I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate: Dated: 10 October 2000 Counsel for the Applicant: Mr D. De Marchi

Solicitors for the Applicant: De Marchi and Associates

Solicitor for the Respondent: Australian Government Solicitor

Dates of Hearing: 31 July 2000 & 21 August 2000