Repatriation Commission v Compton, Betty Evelyn [1984] FCA 16

Federal Court of Australia|1984-02-20|Before: Toohey J

Repatriation - war widow's pension - death of former member of Armed Forces from motor neurone disease - aetiology of disease unknown - whether death arose out of or was attributable to war service - onus of proof - real or rational possibility of relationship between war service and death - effect of decision of single

WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

JUDGE MAKING ORDER 3 Toohey J. DATE OF ORDER 3 20 February 1984 WHERE MADE 3 Perth THE COURT ORDERS THAT:

IN THE FEDEPAL COURT i OF AUSTRALIA , WESTERN AUSTRALIA ' DISTRICT PEGISTRY ! GENEPAL DIVISION

The operation of certain provisions of the Repatriation

This appeal concerns the entitlement to a pension under

Division 1 of Part III of the Act of Betty Evelyn Compton, the

respondent. Mrs. Compton's husband, Cecil Frank Compton, who was

a member of the Forces as that term is defined in the Act, died on

A medical report, furnished by Dr. A. J. Berman pursuant to s.48 of the Act, identified as Mr. Compton's cause of death

"The consensus of expert modern medical opinion is that motor neurone disease 1s a degenerative disorder of unknown aetiology".

On 19 July 1982 a Repatriation Board refused Mrs. Compton's claim for a pension on the ground that it was "satisfied, beyond reasonable doubt, that there are insufficient

grounds for allowing the claim that the member's death was related

Mrs. Compton appealed to the Repatriation Commission against the decision of the Board and on 16 November 1982 the Commission dismissed that appeal. The decision of the Commission

was in fact the decision of its Delegate who concluded his reasons

"As Delegate of the Commission I am satisfied, beyond reasonable doubt, that

there are insufficient grounds for allowing the widow's appeal. As required by Section 47 of the Act the appeal is therefore disallowed".

In accordance with Part IIIA of the Act Mrs. Compton sought a review of the decision of the Commission by the

Repatriation Review Tribunal established by the Act. The Tribunal

set aside the decision of the delegate and substituted its own

oe on and from 16 April 1982, and ple suant to Section Lol ot the Fepatriation Ack, che Commonwealth 1s liable to pay ta Khe dependants of Cecil Frank COMPTON, sncluding the Applicant, Betty Evelyn COMPTON. the pension payable under Division 1 of Part III of the Repatriation Act, on the death of a

This appeal is brought by the Repatriation Commission pursuant to s.107VZZH of the Act. I have, in an earlier decision (Law v. Repatriation Commission (1980) 29 ALR 64), commented on the "unsatisfactory situation of such a chain of review

procedures" (at p.67). It is unnecessarily consuming of time and

An appeal to the Federal Court from a decision of a Repatriation Tribunal is, by reason of s.107VZZH(1), on a question of law. The respondent did not challenge the proposition that the appeal was on a question of law and there can be no doubt, having regard to the reasons for decision of the Tribunal, that the appeal concerns the meaning and effect of certain sections of the Act and the import of decisions of this Court and of the High

Although it is the decision of the Repatriation Review Tribunal and not of the Delegate that 1s challenged in this appeal, some reference must be made to the latter if only because of the Tribunai''s criticism of the reasoning that led the Delegate

to disallow Mrs. Compton's claim. It should be noted that

although the proceedings cefore the Delegate were by way of appeal

against a det nation of a Fepatriation S&oard, Division III of

Fart [LIA of rhe Act tonterred on the Repatriation Review Tribunal power to "review" the decision of the Commission. Section 107VH obliged the Tribunal c-o have regard to the evidence that was before the Commission "and to any further evidence before the Tribunal in the proceeding that was not before the Commission ... but would have been relevant to the making of a decision in the proceeding before the Commission ...". In the present case there was material before the Tribunal, in the form of medical literature, that was not before the Board and not before the Delegate. The Tribunal found it unnecessary to consider this

material. As will appear from these reasons, I also find it

In essence, the Delegate's approach was to look at the medical evidence, to note that motor neurone disease 15 a progressive disease of the spinal cord (the actual cause of which remains unknown though it is considered a deqenerative condition),

and to conclude that a review of the records "failed to locate

anything which might suggest any causal association with the

member's service". I should add one other passage from the

"T am firmly of the view that a reasonable doubt cannot stem from possibilities which are so remote as to be unreal. Having been unable to locate anything which might suggest even a tenuous association with the deceased's

service. I consider that Mrs. Comptan's suagested assoec1raticn 1s toa tenuous to eptertaia".

In my view, the Tribunal's trenchant criticism of the Delegate's reasons shows a misunderstanding of the way 1n which the Delegate approached the matter. That is not to say that the Delegate was necessarily correct in his conclusion; it is simply to say that the Tribunal''s attack on the approach he took was

illfounded. The relevance of these matters for this Court lies in the appellant's submission that the Tribunal was thereby led into

In dealing with the Delegate's statement that the Act required him to be satisfied beyond reasonable doubt that there was no connection between Mr. Compton's service and his death, the Tribunal commented that this proposition "fails to emphasise that

it is for the Repatriation Commission unconditionally to establish

the absence of such a connection beyond reasonable doubt".

I am not sure what is meant by "unconditionally" in this passage but I can find nothing to criticize in the Delegate's proposition, taken on its own or in context. However the Tribunal's stricture is itself open to criticism, particularly when read with certain other passages in its reasons for decision. It is apparent from remarks such as "unless the Repatriation Commission demonstrates beyond reasonable doubt, by evidence

placed before the Tribunal ... " and "if the Commission fails by

evidence toa discharge the onus ..."" that the Tribunal was of

the view that 1t could be satisfied beyond reasonable doubt that there were ainsutficrent grounds for granting the ciaim tthe language of s.lO7VH(2)(a)) and that the Commission could discharge the onus cast upon it by the Act. only by evidence led on behalf

That 1s not the situation under the Repatriation Act.

In Repatriation Commission v. Bishop (1983) 48 ALR 461 at p.468 I

discussed the scheme of the Act for dealing with claims. I shall not repeat what is said there, except to emphasise that the process is not an adversary one. Rather, the Board is obliged to investigate all the material available to it. As a result of its investigation the Board may be satisfied beyond reasonable doubt that there is no connection between the death of a member of the Forces and his war service. From the same material, the Commission (on appeal) or the Tribunal (on review) may reach the

same conclusion. Of course the Board may not be so satisfied.

The fact that the cause of death is unknown does not

affect that approach though it may call for a particular analysis

Again, the Tribunal seems to have misunderstood what was said in Bishop's case, particularly with reference to the judgment of the Full Court of the Federal Court in Repatriation Commission

v. Law (1980) 31 ALR 140 and the decision of the High Court in

Repatriation Commission v. Law (1981) 36 ALR 411. The Tribunal

see zter statement in the Federal Court's decision in Bishop that a statement appearing in the majority judgment in Law was to be interpreted as saying that an Applicant had to lead evidence of a 'real or rational possibility'".

That 15 not what was said in Bishop's case. No mention was made of an applicant having to lead evidence. Indeed [I

"The applicant was at pains to avoid any suggestion that before a Board, the Commission or the Tribunal any onus, legal or evidential, lay upon a claimant. Any such suggestion must be rejected, having regard to ss. 47(2) and 107VH of the Act as considered in Law's case".

What I sought to do in Bishop's case was to examine certain decisions of this Court and of the High Court with a view to explaining that in the material before the particular tribunal there must be something pointing to a possibility, real as opposed to fanciful, of a connection between death and war service. If there is not, the tribunal is likely to conclude that it is

satisfied beyond reasonable doubt that there was no relationship

between the war service and the death. Where there is evidence to support a connection between death and war service, the onus cast

by the Act upon the Commission would ordinarily lead to a

eonclusion that tne onus had noc been satisfied "unless the

eointinag to a cannection between death and war service

Where the aetiology of a disease is unknown the same principle 15 1n operation but its application may be somewhat different. Where the cause of the disease from which an ex-serviceman died is unknown, it does not follow as a matter of law that the tribunal cannot be satisfied beyond reasonable doubt that the disease was not attributable to war service. In many cases that, no doubt, will be the conclusion reached. But ina particular case the tribunal may decide that the evidence is against the disease having its origin as early as the war years or against it having an origin having anything to do with war service or any circumstances connected therewith. A conclusion by a tribunal that it is satisfied beyond reasonable doubt that the disease was not attributable to war service may, in the particular circumstances, be a proper conclusion. See Lennell v.

Beaumont J. in Repatriation Commission v. Morcombe (unreported

decision delivered 19 September 1983) and by Northrop J. in

Repatriation Commission v. Evans (unreported decision delivered 21

Part IIIC of the Act deals with references and appeals from the Pepatriration Review Tribunal to the Federal Court. References and appeals are conditioned by the existence of a

question of law but it is the clear intention of the Act that where an appeal is ona question of law the Tribunal 1s bound by

the decision of the Court. When there is a decision of a single

judge of this Court relevant to a matter before the Tribunal, it

is the responsibility of the Tribunal to give effect to that decision unless 1t has been overruled, expressly or impliedly, by a decision of the Full Court of the Federal Court or by a decision of the High Court. If this is not done there will be added to the system of review procedures under the Act the further ogre of

In my view, 1n the present case the Tribunal not only failed to apply Bishop's case but misunderstood the import of that decision. The question remains however - did the Tribunal, in exercising its function of reviewing the decision of the Delegate, reach a decision in accordance with the Act? The appellant argues that the Tribunal failed to do so and seeks an order that the matter be remitted to the Tribunal for rehearing in accordance

As I said earlier in these reasons, the scheme of the Act for appeals and reviews is complex and time consuming. I am reluctant to add to that complexity by remitting a matter to the

Tribunal but in the present case I feel obliged to do so. The

Tribunal's approach was so conditioned by its view that the Commission must lead evidence to discharge the onus cast upon it and by ats misunderstanding of Bishop's case that 1t 1s not possible to say with certainty that it would have reached the same

Claims before the Commission are not to be determined by

the mechanical application of some formula. It is necessary to examine all the evidence available and then to determine whether, on that evidence, the Repatriation Board or other tribunal concerned 1s satisfied beyond reasonable doubt that the death of the member of the Forces was not attributable to war service. If the tribunal 1s not so satisfied the claim must be allowed. In

making that determination the tribunal should have regard to

In the circumstances the appeal must be allowed and the matter remitted to the Repatriation Review Tribunal for rehearing

I certify that this and the nine preceding pages are a true copy

of the Reasons for Judgment herein of his Honour Mr. Justice Toohey

At a glance

Court

Decision date

Before

Source

Judgment (83 paragraphs)

Cases Cited (4)