Counsel and Solicitors M.J. Beazley QC with R.M. Henderson

Solicitor

Counsel and Solicitors J.P Hamilton QC with A.L. Hill

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The Repatriation Commission ("the Commission") appeals from an order of a judge of the Court dismissing an "appeal" from a decision of the Administrative Appeals Tribunal ("the Tribunal") under s.44 of the Administrative Appeals Tribunal Act 1975 on a question of law. The Tribunal set aside a determination of the Commission refusing the claim of Stella Margaret Hughes, the respondent, for a war widow's pension under the Veterans' Entitlement Act 1986 ("the Act") in respect of the death of her husband, Russell Robinson Hughes ("the deceased").

2. The present claim was made by virtue of s.8(1) of the Act. It provides, relevantly, that the death of a veteran shall be taken to have been war-caused if it "arose out of, or was attributable to, any eligible war service". It is common ground that the service of the deceased was "operational service" for the purposes of the Act. By s.120(1) of the Act, where a claim for a pension in respect of the death of a veteran relates to the operational service rendered by the veteran, the Commission shall determine that the death of the veteran was war-caused unless it is satisfied beyond reasonable doubt, that there is no sufficient ground for making that determination. By s.120(3), in applying s.120(1) in respect of the death of a person, related to service by that person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death was war-caused, if the Commission, after the consideration of the whole of the material before it, is of the opinion that the material does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the person.

3. In order to understand the contentions advanced on this appeal on behalf of the parties, it is necessary to refer in some detail to the Commission's determination and to the proceedings before the Tribunal.

4. The Commission's statement of reasons for its determination may be summarised as follows.

5. The deceased, who was born in 1919, served, in operational service, in the Air Force in World War II. He died in 1976 from carcinoma of the pancreas. Under the Act, the claim to a pension is to be granted unless the Commission is satisfied beyond reasonable doubt that there was no sufficient ground for determining that the death of the deceased was war-caused. Section 120 of the Act requires that the Commission shall be so satisfied if the material before the Commission fails to raise a reasonable hypothesis connecting his death and the circumstances of his war service. The connection required "is causal, but it need only be partial or indirect". With reference to the possibility that the deceased's smoking may have been a risk factor in the development of his cancer, the evidence showed that he commenced smoking in 1933 and ceased smoking on various occasions between 1969 and 1974. The Commission was satisfied that the deceased commenced smoking prior to his war service and that his war service had no influence on the continuance or severity of his habit. The deceased suffered from asthma, with emphysema, for which he was treated with cortico-steroids and for which he was granted a pension. The Commission was satisfied that these conditions, and this treatment, did not contribute to the cancer. The Commission was "satisfied beyond reasonable doubt that there (was) no sufficient ground for determining that (the deceased's) death was war-caused".

6. The proceedings before the Tribunal took the following form. Mr Hill, who appeared for Mrs Hughes, opened by referring the Tribunal to certain statements in the documentary material before the Tribunal with respect to the history of the deceased's smoking habits. Mr Hill indicated that these statements were disputed. Mr Hill tendered medical reports and the deceased's war diaries. Mr Palma, who appeared for the Commission, tendered further documentary material, including medical reports. Mrs Hughes then gave oral evidence with respect to the deceased's smoking habits. Ronald Edward Hughes, the deceased's brother, and Ethel Clayton, the deceased's sister, also gave oral evidence on this question.

7. In his address, Mr Hill submitted that the real issue in the application was "whether or not the smoking - the habit the deceased had was induced by his war service." Mr Hill contended that, although the deceased may have smoked occasionally before his enlistment, he did not then have a smoking habit. Mr Hill submitted, by reference to the war diaries, that the deceased had been subjected to stress both during his operational service and during air raids on Darwin and that this stress induced in the deceased the habit of smoking. For his part, Mr Palma argued that the evidence left open the question whether the deceased had developed a habit of smoking prior to his enlistment. He further submitted that, although there was evidence of individual incidents which might have induced stress in the deceased, there was "no evidence of on-going stress". Reference was made to the circumstance that in 1968 the Commission accepted that the deceased was entitled to a pension in respect of his asthma but it was common ground first, that the cause of the death of the deceased was cancer of the pancreas and, secondly, that there is "a strong association" between smoking and that cancer.

8. The following exchanges then took place between Mr Perrignon, the senior member of the Tribunal, and Mr Palma:

"So the only question is whether the smoking was a habit which he

acquired during war service; is that right? The only real

question, the only real issue; is that right?

MR PALMA: Well, Mr Hill has not canvassed the other issue that is

raised by Professor (Kune) and that is the longterm immuno

suppressive effects of the cortico steriods that he was taking for

his accepted disability. Professor (Kune) raises that as a

theoretical consideration at this stage. There is no evidence - and

both doctors agree on this - that the longterm administration of

those cortico steriods can lead to carcinoma of the pancreas.

HON. MR PERRIGNON: Yes, so what you say is that the - you say the

real issue is whether the smoking was a war-caused habit?

MR PALMA: I think we would both agree that that has been narrowed

down to that issue, yes.

HON. MR PERRIGNON: Well, I do not know. We might hear from Mr

Hill about that later.

MR PALMA: Because if there are any other issues, if that is not the

case I can make submissions on the other issues.

HON. MR PERRIGNON: Well, all right. Well, we will just - I think

we had better hear from Mr Hill after you finish now - - -

...

MR PALMA: Yes, Basically, my submission is - I mean, you do not

require me to give submissions on what constitutes a reasonable

hypothesis do you, sir?

HON. MR PERRIGNON: I do not want to restrict you at all in your - - -

MR PALMA: No. I think it has been well established in this - - -

HON. MR PERRIGNON: - - - submissions. You make such submissions to

me - to us - as you see fit.

MR PALMA: I think it has been well established in this tribunal

what constitutes a reasonable hypothesis - - -

HON. MR PERRIGNON: Yes.

MR PALMA: - - - and the only decision that I will mention that I

would like the tribunal to take note of is the decision in Gilbert - - -

HON. MR PERRIGNON: Gilbert?

MR PALMA: Yes.

HON. MR PERRIGNON: What is the reference to that?

MR PALMA: I am getting to that. It is, I believe at this stage

still - it is a decision of Justice Hill in the Federal Court.

HON. MR PERRIGNON: Yes....

MR RUSSELL: This is all about reasonable hypothesis; that is the

point you are making, not any other aspect?

MR PALMA: No, that is correct, Mr Russell.

HON. MR PERRIGNON: You say there is no reasonable hypothesis - - -

MR PALMA: Well - - -

HON. MR PERRIGNON: - - - connecting the smoking with the war service?

MR PALMA: No. That is not correct, sir. I am saying that on the

basis of that there is no reasonable hypothesis connecting the

cortico steriods with the carcinoma of the head of the pancreas.

HON. MR PERRIGNON: Yes.

MR PALMA: There is, of course, a hypothesis - a reasonable

hypothesis - that the cause of death - the carcinoma of the head of

the pancreas, one of the risk factors is the smoking.

HON. MR PERRIGNON: Yes.

MR PALMA: Of course, the only question left open now is the

influence of the war service on the veterans smoking habit.

HON. MR PERRIGNON: You say that is the only question; the

only real issue in the appeal?

MR PALMA: Yes.

HON. MR PERRIGNON: Is that right?

MR PALMA: That is right. I think that the other part of it can be

ruled out. It is only a theoretical consideration at this stage and

it can be totally ruled out, and that is the only issue left open.

And I would say that the paucity in the evidence leaves it open for

the tribunal to find that the veteran commenced smoking before

service and there is no evidence of what actually happened on

service in regard to his smoking habit, and then from the late 40s

to 1969 the evidence from Mrs Hughes is that he was smoking two

ounces of tobacco a week, and two ounces, I guess, depending on how

you roll cigarettes, can be anywhere from 50 to 100 cigarettes a

week, and that did not change.

So, there is a gap in the evidence, and my submission is that it is

open to the tribunal to say that the smoking habit commenced prior

to service..."

9. Mr Palma then made submissions with respect to the evidence on the question whether the deceased had developed a smoking habit before his enlistment. He then said:

"MR PALMA: I would say there is a conflict (in the evidence) and

to say that war service was the cause of his smoking or increased

his smoking habit is nothing more than speculation.

HON. MR PERRIGNON: Yes. All right. Well, is that what you

wanted to say to us?

MR PALMA: I have no other real point to make, no."

10. In its reasons, the Tribunal first described the history of the deceased's smoking habits. The Tribunal then said:

"10. There was no dispute between the parties that there was a

causal relationship between the veteran's smoking habit and his

death from carcinoma of the head of the pancreas. Therefore, the

only issue between the parties was whether he developed his

smoking habit before or after his enlistment.

11. The evidence establishes to our reasonable satisfaction that

the veteran had developed a smoking habit at least prior to his

discharge from the RAAF in May 1945. Firm evidence was given by

his widow, the applicant, that he was a smoker when she first met

him in 1944 and that he continued that habit, with some attempts

to discontinue it, until about 1971. Evidence to the same effect

was given by his brother, Ronald. The real question is whether he

was a regular smoker before he enlisted.

12. Mr Ronald Hughes stated positively in evidence that his

brother was definitely not a regular smoker before his enlistment.

He agreed that if he ever had a cigarette before his enlistment,

it would have only been with a peer group on social occasions and

away from home."

11. The Tribunal next considered other evidence with respect to the deceased's smoking habit and said:

"14. Considering the whole of the evidence we are reasonably

satisfied that the veteran did not form the habit of smoking until

after he had enlisted in the RAAF.

15. We are therefore of the opinion that the decision appealed

against should be set aside and that there be substituted in lieu

thereof a decision that the death of (the deceased) was war-caused..."

"Three errors of law have been proposed. It is said that the

Tribunal posed the wrong question to be answered, or more strictly

that it posed as the question to be answered only a part of that

question; secondly, that the Tribunal stated no reasons in

relation to that part of the issue which it did not discuss; and

thirdly, that in relation to that part of the issue which the

Tribunal did not discuss, there was no evidence to justify the

Tribunal's finding.

In its reasons for decision, the Tribunal made no reference to the

statutory provisions which governed the substantive right to a

pension or to the standard of satisfaction which the Tribunal was

required to reach. Moreover, the Tribunal did not fully state the

substantive issue before the Tribunal for, accepting that Mr

Hughes' smoking habit had contributed to his death from carcinoma,

it did not discuss whether his smoking habit was attributable to

his war service, merely whether it developed before or during his

war service."

13. The judge referred to the duty of the Tribunal "to deal with the substantive issues upon which the decision turned" and considered the operation of s.8(1) and s.120(1) and (3) of the Act in the present context. The Judge said:

"The Tribunal accepted that, prior to enlistment in the R.A.A.F in

1941, Mr Hughes was a non-smoker or not a regular smoker and lived

with his family in a house in which smoking did not occur, as

alcohol and tobacco were not permitted by the mother. Mr Hughes

became a regular smoker during the period of his war service. The

Tribunal found that 'the veteran had developed a smoking habit at

least prior to his discharge from the R.A.A.F. in May 1945. Firm

evidence was given by his widow, the applicant, that he was a

smoker when she first met him in 1944.' There was no direct

evidence as to when or in what circumstances Mr Hughes acquired

the smoking habit during his war service.

The Tribunal did not itself analyse what were the issues to be

resolved but appears to have dealt with the matter solely on the

basis presented by the representatives for the parties,

particularly the representative for the Commission."

14. His Honour then cited passages from the transcript which are set out above and said:

"On this basis, the Tribunal posed the question for decision in

these terms:-

'Therefore, the only issue between the parties was whether

he developed his smoking habit before or after his enlisment.'

As the standard of proof was that applicable to operational

service, that is, as specified in s.120(1) and (3) of the Act,

this was a sufficient description of the issue. The evidence was

strong that the smoking habit which Mr Hughes had developed

contributed to the carcinoma of the pancreas. Therefore, the

question was whether war service contributed in a causal way to

the development of that habit. It seems to me that clearly there

was a reasonable hypothesis."

"But if a serviceman commences smoking during war service, then a

hypothesis will readily arise that the development of the smoking

habit was causally related to the war service. The connection

will be pointed to by the facts of the particular serviceman's

case. Proof as to precisely how and in what circumstances smoking

commenced and was continued is not required. A reasonable

hypothesis is sufficient."

16. His Honour was of the opinion that, in the present case, the hypothesis required by s.120(3) will be pointed to by the facts if evidence is given that the veteran acquired a smoking habit while on war service away from home, when boredom, stress or the mere pressure of his peers may have encouraged him to do so. The Judge said:

"Notwithstanding that the reasons of the Tribunal did not

expressly deal in full with the connection between Mr Hughes'

smoking habit and his war service, I could not conclude that the

Tribunal had not addressed itself properly to the only question

seriously in issue."

17. On behalf of the Commission, it is now submitted that the primary Judge erred in holding that (a) in this case there was a reasonable hypothesis; (b) if a serviceman commences smoking during war service, a hypothesis will readily arise that the development of the smoking habit was causally related to the war service; (c) the determination of whether the causal connection between the war service and the incapacity or death is tested under s.120(1); and (d) the facts must be found in the veteran's favour unless the contrary is established beyond reasonable doubt; in failing (e) to hold that a reasonable hypothesis must be one which is grounded in facts or pointed to by the known facts; by assuming (f) that there were facts to ground the causal connection, or failing to require that there be facts which grounded or pointed to the causal connection; and in holding (g) that it could not be concluded that the Tribunal did not expressly deal in full with the connection between the deceased's smoking habit and his war service.

Did the parties, in the proceedings before the Tribunal, agree to tender for decision by the Tribunal any particular issue or issues?

18. As has been seen, at the commencement of the proceedings before the Tribunal, several potential issues were canvassed by the representatives of the parties. However, as the proceedings progressed, the parties' representatives came to appreciate that only one matter was seriously in contention between them. This issue was the time at which the deceased developed his smoking habit. In the course of their final addresses, the parties, by their representatives, agreed that this was the only matter for determination. The issue was, of course, a question of fact and it was perfectly proper and appropriate that the parties, with the benefit of professional advice, should inform the Tribunal that only that question remained for its determination. It is hardly necessary to say that parties should be encouraged to tender for determination by the Tribunal only those questions which are, in truth, contentious.

19. As has been said, the Tribunal posed for determination the only relevant question that remained at the end of the proceedings. It is not, and could not be, suggested that the Tribunal erred in law or in any other relevant respect in determining this straight-forward issue of fact.

20. When the reasons of the primary Judge are read as a whole, it is clear that his Honour was of the view that the Tribunal correctly stated the only issue for decision. With respect, we agree with the primary Judge. It is true that, in his reasons, his Honour also made some observations with respect to the construction and operation of s.120. It is really in respect of these comments only that the Commission now seeks to appeal. But, as we understand his reasons, the remarks made by his Honour were not necessary for his decision. In these circumstances, it is not necessary that we address them.

21. In our opinion, the Commission has failed to demonstrate any error in the approach taken by the Tribunal. In the result, the appeal must fail.

22. We propose that the appeal be dismissed, with costs.

I have had the benefit of reading the draft reasons for judgment and orders proposed by Justices Beaumont and Hill. Whilst I agree with what their Honours have written and their conclusions for the appeal, I should prefer to base my decision slightly differently. In my opinion Justice Davies was perfectly entitled to take the view expressed in his reasons for judgment. Like his Honour, I have no doubt that a reasonable hypothesis of causation between the deceased's smoking habit and his war service was raised by the evidence before the Tribunal. The fact that the Tribunal did not spell out in words, quite as comprehensively as it might have done, the facts needed to found the causative nexus does not invalidate in law its conclusion to this effect. Nor is Justice Davies' judgment vitiated because his Honour gleaned and extracted what the evidence made obvious were the factual foundations for the reasonable hypothesis correctly detected by the Tribunal.

2. Indeed, as it seems to me, that is precisely why the case was conducted and crystallised before the Tribunal as Justices Beaumont and Hill have so clearly brought out in their judgment. The Commission's agreement, which led to the parties' joint invitation to the Tribunal, to limit and litigate the single issue identified by Justices Beaumont and Hill was not, I believe, taken for tactical or forensic reasons; nor was it made in error by an inexperienced or mistaken advocate. It was fixed by the undisputed facts of the case as proved by the evidence before the Tribunal. It was taken because there was no point in trying to argue anything else. I agree with Justice Davies that this approach and the conclusion drawn by the Tribunal on the issue presented to it for resolution are unarguably correct.