Repatriation Commission v Green

Proceeding before the Tribunal 9 In an affidavit filed in the Tribunal and sworn on 15 October 2001, the respondent deposed to having lived with the Veteran before their marriage, and that she and the Veteran had a daughter, born on 21 April 1989. 10 In a letter dated 9 September 2002, the contents of which were reproduced in an affidavit sworn on 13 September 2002, the respondent stated that the Veteran's death had been "mainly due" to an incident during the war when a bullet grazed his face, and left a permanent scar on the right side of his face, and to working with chemicals in a toxic-polluted atmosphere in the RAAF which "affected his lungs, throat and voice, which developed into a malignancy and late a cancerous threat [sic]. Years later, when they were married, had personally witnessed his bitterness and desperation, the pain and physical weakness he suffered. He was diagnosed several times with a malignant tumour in the neck." The respondent further stated that she had "closely nursed in his illness and observed his reactions and behaviour, particularly during his last few days." 11 The respondent's next-door neighbour, Mansueto Campos, in an affidavit sworn on 14 January 2003, deposed that, in 1988 or 1989, the pain in the Veteran's neck "became eminent" and she helped the respondent attend to the Veteran's needs whenever necessary. Ms Campos stated that she was always at the respondent's side, "especially when the pains became intermittent and up to the time that he was brought in and out of the hospital for his frequent medication and treatment", and that he had suffered "painful attacks" daily. 12 At the hearing before the Tribunal, the respondent's advocate stated that the Veteran had never been diagnosed with malignant cancer, and that when contact was made with Dr Laigos, who was by then residing in California, he could only remember treating the Veteran in the early 1980s for chronic laryngitis. The respondent told the Tribunal that she had been with the Veteran from 1982, that, at first, he had thought that he had only a sore throat, and that she had bought him Amoxicillin and Strepsil. She said that he had suffered from his sore throat since 1988 and that Dr Laigos was the last doctor whom he had seen. 13 After the hearing, a statement to the Tribunal dated March 2005 was submitted on behalf of the respondent, which responded to the assertion of Dr Laigos that the Veteran was a heavy smoker. The respondent contended that the Veteran had not been a heavy smoker and that "he was no longer smoking long before his death… exposure for seven years, 1949 to 1956, to the toxic fumes in the airbase of the RAAF, was enough to burn his lungs and throat, silently, undetected, until the toll shows its effect 36 years later, too late, irreversible, and finally fatal". It was submitted that the Veteran's suicide was "caused by intense depression, prolonged agonising pain, and hopeless reality of his service-related illness." 14 In an affidavit sworn on 23 July 2005, the respondent deposed that the Veteran had reduced his consumption of cigarettes while he was serving with the RAAF as aircraftsmen were prohibited from lighting cigarettes in the airplane hanger. When she first met the Veteran in 1979 he was smoking "something like a pack a day". She stated that he had reduced the amount that he smoked when they started living together, and had stopped several times, abstaining completely a few years before he died. 15 The Tribunal at [1] of its reasons summarised the respondent's claim as being that the Veteran "was suffering from throat cancer which caused intense depression, prolonged agonising pain, and the feeling that there was no hope of recovery, which finally caused him to take his own life." At [6] of its reasons, the Tribunal accepted that the Veteran had "committed suicide by cutting his own throat", but did not make any finding as to whether the Veteran had been suffering from cancer of the throat at the time of his death. 16 The Tribunal went on to refer to the relevant sections of the VE Act and to the steps set out by a Full Court of this Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (at 97-98), and to the material before it, including the respondent's claim that the Veteran's work as an engine fitter in the RAAF had caused him to work in an atmosphere with chemicals and toxic substances that "affected his lungs, throat and voice [so] that, finally, he developed cancer of the throat." 17 The Tribunal found, at [16], that the material was "adequate for [it] to find that there was a hypothesis connecting [the Veteran's] death with the circumstances of his operational service." The hypothesis, which it articulated at [17], was; '… experiencing a severe psychosocial stressor or stressors within the two years immediately before the suicide or attempted suicide'. where - '… severe psychosocial stressor' means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury in a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.' 18 The Tribunal referred to the Statement of Principles ("SoP") in respect of Suicide and Attempted Suicide and implicitly found that factor 5(h) of that SoP was relevant to the hypothesis. The Tribunal stated at [18] of its reasons that the hypothesis was reasonable because "the material before [it] suggests the possibility that [the Veteran] suffered from a malignant neoplasm of the larynx or some other severe illness." 19 The Tribunal at [19] recognised a connection between the Veteran's war service and the putative malignant neoplasm of the larynx had to be supported by application of the SoP appropriate to malignant neoplasm of the larynx. The Tribunal acknowledged at [20] the Commission's concession that the Veteran had a smoking habit caused by his operational service which would satisfy the smoking element in that SoP. However, the Tribunal held that it was first required to find that the Veteran suffered from a malignant neoplasm of the larynx. 20 After citing Repatriation Commission v Cooke (1998) 90 FCR 307, the Tribunal concluded at [23] that it was bound to determine on the balance of the probabilities whether the Veteran "suffered from a malignant neoplasm of the larynx or from some other severe illness" and observed that the "medical evidence as to whether the veteran suffered from a malignant neoplasm of the larynx is not readily available." 21 The Tribunal concluded at [33]-[34] of its reasons that, on the balance of probabilities, the Veteran did suffer from a severe laryngeal condition immediately before his suicide. The Tribunal reasoned at [34] that; '… [e]ven if [the Veteran] suffered from another form of chronic laryngeal disease such as those described by Dr Morgan, because there is no SoP in existence for those diseases, and the Repatriation Medical Authority has not given notice under s 120A(2), it is open to me to find that, on the balance of probabilities [the Veteran] suffered from a severe illness which was smoking related. This would satisfy a reasonable hypothesis connecting [the Veteran's] death with his war service.' 22 The Tribunal was not satisfied beyond reasonable doubt that there was no sufficient ground for determining that the Veteran's death had been war-caused. The Tribunal therefore set aside the decision of the Commission, and remitted the matter to the Commission to calculate the pension payable to the respondent.

The Commission's submissions 23 The Commission appealed under s 44(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). That section limits an appeal to a question of law, and the Commission listed fourteen questions of law in its notice of appeal dated 5 June 2006. The Commission's notice of appeal also listed the following eighteen grounds of appeal; '3.1 The Tribunal erred in law, in that it failed to ask and answer the questions posed by s 120(3) and s 120A(3) of the VE Act when it found that the material before the Tribunal "suggests the possibility that Mr Green suffered from a malignant neoplasm of the larynx or some other severe illness" and that the hypothesis of a connection between Mr Green's death from suicide and his operational service was therefore reasonable. 3.2 The material before the Tribunal was incapable of supporting a finding: (a) on the standard prescribed by s 120(4) of the VE Act, or (b) on the standard prescribed by s 120(3) of the VE Act, That Mr Green was suffering from a malignant neoplasm of the larynx or another severe laryngeal condition immediately before his suicide on 29 May 1992. 3.3 In finding that Mr Green's suicide was war-caused, the Tribunal:

(a) erred in its construction of the term "severe psychosocial stressor" in the SoP; (b) failed to consider whether the whole of the material before the Tribunal pointed to Mr Green experiencing an identifiable occurrence which evoked feelings of substantial distress; (c) failed to consider whether the whole of the material before the Tribunal pointed to Mr Green having a "severe illness" (as opposed to a chronic disease) that evoked feelings of substantial distress within the two years immediately prior to his death. 3.4 The Tribunal denied the Commission procedural fairness by:

(a) relying on information found from internet sources in reaching its findings of fact; and/or (b) relying on information found from internet sources in finding that "all of these conditions [which included laryngeal papillomatosis] have smoking as one of the possible causes"; and/or (c) relying in its decision on information found from an internet source to contradict or impugn the opinion of Dr Morgan; and/or (d) relying on information from an internet source in reaching its finding that the symptoms for chronic infections such as TB and Candida do not match the symptoms described by the Respondent; and/or (e) relying on information from an internet source in coming to the view that TB and Candida infections were unlikely to have been the cause of Mr Green's problems. 3.5 It was not open to the Tribunal, on the evidence before it, to find that:

(a) "all of these conditions" on non-cancerous growths in the voice box, laryngeal papillomatosis, vocal nodules and laryngitis "have smoking as one of the possible causes"; (b) chronic infections such as TB and Candida "although an 'outside possibility' are unlikely to have been the cause of Mr Green's problem"; (c) "Mr Green did suffer from a severe laryngeal condition immediately before his suicide"; (d) "Mr Green suffered from a malignant neoplasm of the larynx or another severe laryngeal condition"; (e) "even if Mr Green suffered from another form of chronic laryngeal disease such as those described by Dr Morgan", he "suffered from a severe illness which was smoking related"; 3.6 Section s 119(1)(h) of the VE Act did not require or permit the Tribunal to find that: (a) the Respondent "did not have the money to take Mr Green to a specialist in order to allow a diagnosis to be made and for treatment to be undertaken"; (b) "Mr Green was treated at the Martinez Maternity and Lying-in Hospital in San Fernando City, La Union, Philippines"; (c) the Martinez Maternity and Lying-in Hospital "could not produce any medical records of Mr Green's treatment" in the sense that the hospital had not made or retained such records.' 24 The orders sought by the Commission, as set out in the notice of appeal, were as follows; '2.1 That the appeal be allowed. 2.2 That the decision of the Tribunal be set aside and the decision under review by the Tribunal (that the death of Mr Green was not war-caused) be affirmed. 2.3 Alternatively, that the decision of the Tribunal be set aside and the matter be remitted to the Tribunal, differently constituted, for hearing and determination according to law. 2.4 Such further orders as the Court sees fit.' 25 In its outline of submissions dated 10 May 2007 the Commission sought the following orders; '101.1.The appeal is allowed; 101.2. The matter is remitted to the Tribunal, differently constituted, for hearing and determination according to the law; 101.3. The Respondent pay the Applicant's costs of the appeal.' 26 By way of letter dated 2 April 2008, the solicitor for the Commission advised that the Commission no longer sought the order in relation to costs and submitted instead that if the appeal were allowed, the appropriate order would be that there be no order as to costs. 27 In its written submissions, the Commission outlined the details of its grounds of appeal. In relation to Ground 3.1, it was submitted that the Tribunal had failed to ask the proper question. The Commission submitted that the Tribunal implicitly found that the Veteran's death had been caused by suicide, and therefore the question to be asked pursuant to ss 120(3) and 120A(3) of the VE Act was whether the whole of the material raised a hypothesis which was upheld by the Suicide SoP. According to the Commission, for a hypothesis to be reasonable, the whole of the material must point to the facts on which the hypothesis depends; see East v Repatriation Commission (1987) 16 FCR 517 at [42]. The Commission submitted that it is not enough that the material leaves open the hypothesis; see Whitworth v Repatriation Commission [2003] FCA 1530, and that it is impermissible merely to assume or assert the facts said to found the hypothesis; see Blair v Repatriation Commission [2005] FCA 1035 at [25]. 28 As the Tribunal considered that clause 5(h) of the Suicide SoP was relevant, the question posed by ss 120(3) and 120A(3) of the VE Act became whether all of the material pointed to the Veteran's having experienced an identifiable occurrence which would have evoked feelings of substantial distress in an individual. To answer that question, the Tribunal was required to consider whether the occurrence relied on was objectively capable of evoking substantial distress and subjectively did, in fact, evoke such substantial distress in the Veteran; see White v Repatriation Commission [2004] FCA 633 at [30]. 29 The Tribunal, it was contended, had erred in asking whether the material suggested the possibility that the Veteran had suffered from a malignant neoplasm of the larynx or some other severe illness. That error was said to have occurred, first, because a person who suffers a serious illness does not necessarily experience a "severe psychosocial stressor"; see White at [28], and secondly, because the Tribunal had asked itself whether the material suggested a "possibility" rather than whether the material "pointed" to the facts on which the hypothesis was founded. 30 In relation to Ground 3.2, s 5D(1)(a) of the VE Act defines a "disease" as "any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)". The Commission submitted that whether or not a person suffers from a disease, the time of clinical onset of a disease, and whether or not there has been a clinical worsening of a disease are all matters susceptible of being answered only by an expression of medical opinion; see Repatriation Committee v Cooke (1998) 90 FCR 307 at 312; Repatriation Commission v Cornelius [2002] FCA 50 at [26]; Repatriation Commission v Milenz [2006] FCA 1436 at [33]-[35]. 31 According to the Commission, apart from the unsworn, hearsay evidence given to the Veterans' Review Board by the respondent's advocate that she had spoken to Dr Laigos and that "in the early 1980s" Dr Laigos "started treating the [Veteran] for chronic laryngitis", there was no evidence that any medical practitioner had ever diagnosed the Veteran as suffering from malignant neoplasm of the larynx, or any "severe laryngeal condition." 32 In relation to Ground 3.3, the Commission contended that the Tribunal had misconstrued the term "severe psychosocial stressor" in the Suicide SoP, had failed to consider whether the whole of the material pointed to the Veteran's having experienced an identifiable occurrence which evoked feelings of substantial distress, and had failed to consider whether chronic laryngitis was a severe illness which evoked feelings of substantial distress within the two years immediately before the Veteran's death, all of which "infected" the Tribunal's finding that the Veteran's death had been war-caused. 33 In support of Ground 3.4, it was submitted on behalf of the Commission that an appeal from a decision of the Tribunal on the grounds of a denial of procedural fairness raises a question of law within s 44(1) of the AAT Act; see Lawrence v Centrelink [2005] FCA 1318 at [20]. Section 39(1) of the AAT Act requires that; '… the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.' 34 "Document" is not defined in the AAT Act. However, s 25 of the Acts Interpretation Act 1901 (Cth) defines a "document" as including "any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device", and defines "writing" as including any mode of representing or reproducing words, figures, drawings or symbols in visible form. Accordingly, it was submitted, images and writings found on the Internet are "documents" for the purposes of s 39(1) of the AAT Act. The Commission submitted that it was not given an opportunity to inspect and make submissions on several documents retrieved from Internet sites of CancerHelp UK, Cornell University and InteliHealth, on which the Tribunal relied in finding at [31] that; (a) non-cancerous growths in the voice box, laryngeal papillomatosis, vocal nodules, laryngitis, tuberculosis and candida "are unlikely to have been the cause of [the Veteran's] problem"; (b) contrary to the opinion of Dr F J Morgan, the Veteran's symptoms as described by the respondent were not "consistent with chronic laryngeal conditions such as non-malignant tumours … and chronic infections" and did point to a specific laryngeal condition; (c) the symptoms for chronic infections such as tuberculosis and candida do not match the symptoms described by the respondent; (d) tuberculosis and candida infections were unlikely to have been the cause of the Veteran's problems. 35 This denial of procedural fairness, it was submitted, deprived the Commission of the possibility of a successful outcome. The Commission indicated that, if it had been so obliged, it would have been able to "positively establish that, absent the unfair process, [it] would have taken a different course, and that the process has resulted in practical injustice" in relation to the Intelihealth information regarding tuberculosis and the Cornell University information regarding vocal cord disorders, but not in respect of the information from the CancerHelp UK website. 36 In relation to Ground 3.5, the Commission contended that, although the Tribunal, by virtue of s 33(1)(c) of the AAT Act and s 119(1)(f) of the VE Act, is not bound by the rules of evidence, it had committed an error of law by making a finding of fact for which there was no evidence; see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, at 355-356 and Citicorp Life Insurance v Smith [2005] FCAFC 102, at [11]. 37 In essence, the Commission's submissions were that; (a) there was no information on the Cornell University website to indicate that smoking is a cause of any particular type of vocal cord disorder, and no information on the CancerHelp UK website regarding non-cancerous growths in the voice box; (b) there was no material to contradict Dr Morgan's opinion that the Veteran's symptoms were consistent with tuberculosis and candida; (c) there was no medical opinion before the Tribunal that the Veteran was suffering from a "severe laryngeal condition immediately before his suicide"; (d) there was no medical opinion before the Tribunal that the Veteran "suffered from a malignant neoplasm of the larynx or another severe laryngeal condition"; and (e) there was no medical opinion or other material before the Tribunal that "a chronic laryngeal disease such as those described by Dr Morgan" was "a severe illness", let alone a severe illness "which was smoking related". 38 Finally, in relation to Ground 3.6, the Commission submitted that s 119(1)(h) of the VE Act is merely a procedural provision and cannot be relied upon to remedy a deficiency in a hypothesis of connection between a veteran's death and the operational service; see Repatriation Commission v Bey (1997) 79 FCR 364 at 373. In particular, it was submitted that s 119(1)(h) did not permit the Tribunal to find at [32] that; (a) the respondent lacked the financial means to take the Veteran to a specialist for diagnosis and treatment before his death. (b) the Veteran had been treated at the Martinez Maternity and Lying-In Hospital in San Fernando City, La Union, Philippines; and (c) the reason for the Martinez Maternity and Lying-In Hospital's inability to produce any medical records of the Veteran's treatment was a failure to make or retain records of such treatment.

Respondent's submissions 39 In her revised outline of submissions filed on 12 September 2007, the respondent submitted in relation to Ground 3.1 that, the Tribunal had asked itself the correct question using the test set out in Deledio. The Tribunal had expressly set out the requirements of the applicable Suicide SoP, and made a finding at [18] that; '… the material … suggests the possibility that [the Veteran] suffered from a malignant neoplasm of the larynx or some other severe illness. Therefore, it is clear that the hypothesis fits within the template and is…a reasonable one.' 40 The respondent further submitted that the Tribunal, in making this finding, had considered the objective symptoms of a malignant neoplasm of the larynx and the subjective symptoms experienced by the Veteran. The Tribunal had accepted the respondent's evidence that, before his suicide, the Veteran was always complaining about his throat and that she had "personally witnessed his bitterness and desperation, the pain and the physical weakness he suffered", in finding that the Veteran suffered a severe psychosocial stressor within the meaning of factor (h) of the Suicide SoP. 41 In relation to Grounds 3.2 and 3.3, it was submitted on behalf of the respondent that the authorities cited by the Commission did not establish a legal principle that a decision-maker is precluded from making a factual finding regarding the medical condition of a veteran under the VE Act, without expert medical evidence to support that finding. According to the respondent, a fact-finder has a broad discretion to make a finding as to the existence of a medical condition: see Cavenett v Commonwealth [2007] VSCA 88. Therefore, the respondent submitted, the Tribunal was justified in first identifying the relevant symptoms from medical authorities and then considering those symptoms in light of the factual material before it in reaching its conclusion that the Veteran "did suffer from a severe laryngeal condition immediately before his suicide" and "suffered from a malignant neoplasm of the larynx or another severe laryngeal condition": at [33]-[34]. 42 Counsel for the respondent pointed out that the Commission had been provided with the primary medical authorities utilised by the Tribunal and, in turn, had provided those authorities to its medical expert, Dr Morgan, who agreed that the symptoms described by the respondent were consistent with throat cancer and other chronic laryngeal conditions. Thus, the respondent submitted, the Tribunal's decision that the symptoms described by the respondent were consistent with throat cancer and other chronic laryngeal conditions was a determination of fact, which it is not appropriate for this Court to overturn without good and sufficient cause. 43 In relation to Grounds 3.4 and 3.5, the respondent contended that the fact that the Veteran had suffered from another form of chronic laryngeal disease as identified by Dr Morgan would not have altered the Tribunal's decision because the existence of another reasonable hypothesis did not preclude one reasonable hypothesis that the causative factor was malignant neoplasm of the larynx. The respondent further submitted that the Tribunal's reasoning that there was a reasonable hypothesis that the Veteran suffered from a malignant neoplasm of the larynx or another severe laryngeal condition, either of which constituted a "severe illness" and thereby a "severe psychosocial stressor" within the meaning of the Suicide SoP, was "considered and evidence-based". Finally, the respondent denied that the Commission had been deprived of the possibility of a successful outcome or an opportunity to advance its case. 44 In relation to Ground 3.6, the respondent submitted that the Tribunal had applied s 119(1)(h) as required by the VE Act, and that the primary basis for its findings was not a lack of evidence cured by that provision but rather its acceptance, at [32]-[33], as was reasonably open to it, that the Veteran's symptoms had been as reported by his widow. 45 Accordingly, the respondent sought the following orders; 'a. That the appeal be dismissed; b. That the Applicant pay the Respondent's costs of the appeal.'

Consideration 46 The relevant requirements of the VE Act may be stated shortly. A veteran's surviving spouse is entitled to compensation for the war-caused death of the veteran. So far as is relevant, s 8 of the VE ACT provides: '(1) Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war caused if: (a) the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service; (b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; … (d) in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or … (f) the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war caused injury or a war caused disease, as the case may be.' 47 It is clear that in the present case the death of the Veteran resulted from a self-inflicted wound or suicide. There is in force a relevant the SoP concerning "Suicide or Attempted Suicide". The SoP contains the following statements; 'Basis for determining the factors

3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that suicide or attempted suicide can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces. Factors that must be related to service

4. The factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person. Factors

5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting suicide or attempted suicide or death from suicide or attempted suicide with the circumstances of a person's relevant service are: (a) being a prisoner-of-war before suicide or attempted suicide; or (b) suffering from depression at the time of suicide or attempted suicide; or (c) suffering from post traumatic stress disorder at the time of suicide or attempted suicide; or (d) suffering from psychoactive substance abuse or dependence involving alcohol at the time of suicide or attempted suicide; or (e) suffering from schizophrenia at the time of suicide or attempted suicide; or (f) suffering from borderline personality disorder at the time of suicide or attempted suicide; or (g) having experienced, witnessed, or been confronted with a traumatic event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, within the two years immediately before suicide or attempted suicide; or (h) experiencing a severe psychosocial stressor or stressors within the two years immediately before the suicide or attempted suicide.' 48 The definition of "severe psychosocial stressor" as used in par 5(h) of the SoP has been amended by Instrument No 177 of 1996 dated 9 December 1996 and, for present purposes, was in these terms: '"severe psychosocial stressor" means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury in a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.' 49 The Tribunal correctly identified that it was required to approach its resolution of the respondent's claim by taking the four steps identified by a Full Court of this Court in Repatriation Commission v Deledio (1998) 83 FCR 82, where it was observed, at 97-98; '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:

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.' 50 However, the Tribunal did not, in terms, articulate the hypothesis which was said to be pointed to by the material before the Tribunal and which connected the veteran's death with his war service. As I understand it, the material was said to point to a hypothesis that, as a result of either or both exposure to toxic fumes as an engine fitter in the RAAF, or, having commenced to smoke whilst in the Army during 1942, the veteran contracted cancer or some other serious disease of the throat which eventually became so painful that it precipitated his suicide. 51 The material to which the Tribunal had regard in taking the first of the Deledio steps consisted of assertions by the Veteran's widow and friends and neighbours based partly on their own observations and partly on what they said the Veteran had told them of matters, including his war service, which had occurred before he began cohabiting with the respondent in 1979. The material also included hearsay evidence from Dr Laigos that he had treated the Veteran for "chronic laryngitis", mainly by prescribing painkillers, that the veteran had been a heavy smoker consuming approximately 200 cigarettes a week and that Dr Laigos had recommended that the Veteran consult a specialist. 52 There was no evidence of any medical opinion which supported or negatived the hypothesis proposed at [50] of these reasons. Nevertheless, the Tribunal concluded, at [16] of its reasons, that the material which it had summarised "is adequate for me to find that there is a hypothesis connecting Mr Green's death with the circumstances of his operational service." 53 The Tribunal correctly observed that the third of the Deledio steps required it to find, as there was in force an SoP under sub-s 196B(2) or (11) of the VE Act, whether the proposed hypothesis fitted, or was consistent with, the template provided by the relevant SoP. The Tribunal also correctly understood that the SoP to which it was required to have primary regard was that concerning "Suicide or Attempted Suicide", the relevant extracts from which are reproduced at [47] and [48] above. However, the Tribunal apparently considered that all that was necessary for the Veteran's death to fit within the template afforded by the Suicide SoP was the "possibility" that he suffered from a malignant neoplasm of the larynx or some other severe illness. That reasoning is made clear by this paragraph from the Tribunal's reasons: '18. Given that I have found that the material before the Tribunal points to a hypothesis connecting Mr Green's death with the circumstances of his operational service, and that there is in force a SoP under s 196B(2) or (11) of the VE Act, I am required to form an opinion as to whether the hypothesis raised is a reasonable one. As was stated in Deledio, the hypothesis will be reasonable if it fits or is consistent with the template to be found in the SoP. The hypothesis raised must contain one or more of the factors which the Repatriation Medical Authority has determined to be the minimum which must exist and be related to the person's service. The material before me suggests the possibility that Mr Green suffered from a malignant neoplasm of the larynx or some other severe illness. Therefore, it is clear that the hypothesis fits within the template and is therefore a reasonable one.' (emphasis added) 54 The template afforded by the SoP concerning "Suicide" is not self-contained in that it does not enumerate each of the matters on which a positive finding of fact must be made in order for a part of the template to apply to a particular veteran. Instead, it recites in a general way, in clause 4; 'The factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.' 55 That means, in my view, that the Tribunal was required to find, on the balance of probabilities that, in addition to having affected the Veteran at the time of or within two years of the suicide, at least one of the factors enumerated in paragraphs (a) to (h), was related to relevant war service of the Veteran. If that were not the correct interpretation of the SoP concerning "Suicide" a finding, for example, that a veteran was suffering from depression at the time of the suicide would satisfy the third Deledio step even if the depression were demonstrably attributable solely to events unrelated to the veteran's war service. 56 The Tribunal seems to have been conscious that more was required for this case to fit within the template provided by the Suicide SoP than the "possibility" that the Veteran at the time of his death suffered from a malignant neoplasm of the larynx or some other severe illness. That recognition is implicit in the Tribunal's recourse to the SoP concerning malignant neoplasm of the larynx. That SoP, so far as is relevant for present purposes, stipulated; 'Kind of injury, disease or death

3.(a) This Statement of Principles is about malignant neoplasm of the larynx and death from malignant neoplasm of the larynx. (b) For the purposes of this Statement of Principles, "malignant neoplasm of the larynx" means a primary malignancy arising from the mucosa of the larynx, which extends from the lower border of the hypopharynx to the upper border of the trachea. This definition excludes soft tissue sarcoma, carcinoid tumour, non-Hodgkin's lymphoma and Hodgkin's lymphoma. (c) Malignant neoplasm of the larynx attracts ICD-10-AM code C32. (d) In the application of this Statement of Principles, the definition of "malignant neoplasm of the larynx" is that given at paragraph 3(b) above. Basis for determining the factors 4. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that malignant neoplasm of the larynx and death from malignant neoplasm of the larynx can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA). Factors that must be related to service 5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person. Factors 6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the larynx or death from malignant neoplasm of the larynx with the circumstances of a person's relevant service is: (a) smoking at least 2.5 pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of malignant neoplasm of the larynx, where smoking commenced at least five years before the clinical onset of malignant neoplasm of the larynx; or (b) being in an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 5000 hours before the clinical onset of malignant neoplasm of the larynx, where the first exposure to a visible tobacco smoke haze commenced at least five years before the clinical onset of malignant neoplasm of the larynx; or (c) being exposed to mustard gas at least five years before the clinical onset of malignant neoplasm of the larynx; or (d) inhaling respirable asbestos fibres in an enclosed space for a cumulative period of at least 1000 hours before the clinical onset of malignant neoplasm of the larynx: (i) at the time material containing asbestos fibres was being applied, removed, dislodged, cut or drilled; and (ii) the first inhalation of asbestos commenced at least five years before the clinical onset of malignant neoplasm of the larynx; or (e) inhaling smoke from the combustion of biomass or fossil fuels whilst in an enclosed space for at least 5000 hours before the clinical onset of malignant neoplasm of the larynx, where inhaling such smoke commenced at least five years before the clinical onset of malignant neoplasm of the larynx; or (f) drinking at least 250 kilograms of alcohol before the clinical onset of malignant neoplasm of the larynx, where drinking alcohol commenced at least five years before the clinical onset of malignant neoplasm of the larynx; or (g) being: (i) on land in Vietnam, or (ii) at sea in Vietnamese waters, or (iii) on board a vessel and consuming potable water supplied on that vessel, when the water supply had been produced by evaporative distillation of estuarine Vietnamese waters, for a cumulative period of at least thirty days, at least five years before the clinical onset of malignant neoplasm of the larynx; or (h) inhaling, ingesting or having cutaneous contact with a chemical agent contaminated by 2,3,7,8-tetrachlorodibenzo-para-dioxin (TCDD) for a cumulative period of at least thirty days, at least five years before the clinical onset of malignant neoplasm of the larynx; or (i) inability to obtain appropriate clinical management for malignant neoplasm of the larynx.' 57 The Tribunal's discussion of the application of the SoP concerning malignant neoplasm of the larynx is to be found in these paragraphs of its reasons: '19. Because it is said that Mr Green suffered from a malignant neoplasm of the larynx, and a SoP is in existence concerning that illness, it is apparent that in order to connect Mr Green's war service with his illness, it must be necessary for Mrs Green to establish the existence of one of the factors set out in paragraph 1 of the SoP. The SoP dealing with a malignant neoplasm of the larynx may be called a sub-hypothesis as it was in McKenna v Repatriation Commission (1999) 86 FCR 144 where the Full Court of the Federal Court said, when dealing with two hypotheses relied upon by the veteran, that neither of those hypotheses could be said to be upheld unless the sub-hypothesis was also upheld (at 152).

20. In this matter, the Commission has indicated that, due to Mr Green's smoking habit, it was prepared to accept that the smoking was related to his operational service and that Mr Green would meet the smoking factor set out in paragraph 1 of the SoP. However, that does not resolve Mr Green's problem because the Tribunal must first find that, as a minimum, Mr Green suffered from a malignant neoplasm of the larynx.'

58 The Tribunal considered that the SoP concerning malignant neoplasm of the larynx was applicable to what it called a "sub-hypothesis" because the primary hypothesis which attracted the application of the SoP concerning Suicide was that the Veteran had, within the two years immediately before his suicide, experienced a severe psychological stressor being "a malignant neoplasm of the larynx or some other severe illness". That consideration led the Tribunal to observe in the concluding words of [20] of its reasons that it "must first find, that, as a minimum, Mr Green suffered from a malignant neoplasm of the larynx." Despite that observation, the Tribunal did not, in terms, make a finding, as a minimum or otherwise, to that effect. 59 The Tribunal correctly identified that it was required to determine on the balance of probabilities that the Veteran had suffered from the claimed disease by whatever name it may have been called in the claim. It then noted that, if it were to find that the Veteran had suffered from neoplasm of the larynx, the Repatriation Commission would concede that he had a war-related smoking habit which would make reasonable a hypothesis connecting the neoplasm of the larynx with his war service. However, the Tribunal went on to record, as well, also at [23] of its reasons, the submission on behalf of the Commission that; '… in the absence of medical records or evidence of a medical diagnosis having been made, the material before the Tribunal does not raise a reasonable hypothesis that Mr Green suffered from cancer of the larynx or any other kind of cancer.' 60 The Tribunal criticised that submission as conflating the need to establish the existence of the disease with the need to connect that disease, if found to exist, with the Veteran's war service. However, the Tribunal clearly understood that the Commission was contending that it was not open on the evidence to find on the balance of probabilities that the Veteran had been suffering from malignant neoplasm of the larynx. It proceeded to observe at the end of [23] of its reasons: '… A hypothesis is reasonable for the purposes of s 120(3) of the VE Act if there is in force a SoP dealing with the claimed disease which upholds the hypothesis (s 120A(3)). As I understand the Commission's position, provided that the existence of a malignant neoplasm of the larynx can be established on the balance of probabilities, then the connection between that disease and Mr Green's war service is conceded as a consequence of his war-related smoking habit.' 61 Despite that understanding the Tribunal, as I have already pointed out, did not go on to make a finding on the civil standard of proof whether the Veteran had been suffering from malignant neoplasm of the larynx. It noted at [24] the "possibility" that; '… Mr Green suffered from some other severe illness which affected his throat. This possibility arises because of the nature of Mr Green's suicide. In my opinion, there is, on the face of it, a strong connection between the fact that Mr Green cut his own throat and that he suffered from severe pain in his throat for three or four years prior to his suicide.' 62 The Tribunal then noted that "it appears that Mr Green was never diagnosed with any malignant cancer." It recounted his treatment by Dr Laigos "for a throat problem" and the respondent's explanation of the symptoms which she had witnessed to be evident just before the Veteran's death. After observing that there was nothing in the VE Act which requires a diagnosis to be made by a medical practitioner, the Tribunal expressed the view that the absence of such a diagnosis "does not … preclude the possibility that a disease existed." The Tribunal then quoted as follows from the reasons of a Full Court of this Court in Repatriation Commission v Budworth (2001) 116 FCR 200; 'The expression "as claimed" in s 19(7) to which Whitlam J drew attention in the passage from Benjamin which we have just cited, qualifies the whole clause to which it is attached, namely, "that the veteran suffered the injury or contracted the disease". This means, we consider, that the decision-maker has to identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contracted. .... Once the decision-maker has identified, to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved by imposing on the Commission the reverse onus of proof on the criminal standard in accordance with s 120(1) as qualified by s 120(3).' 63 The sentences which the Tribunal omitted from that extract are important as illuminating the fact-finding process in which a decision-maker is required to engage in taking the third Deledio step. Those sentences were: 'It is not a matter of nomenclature or attaching a traditional medical label to the collection of symptoms. That, as the conflicting expert psychiatric evidence of Dr Knox and Dr Dent on the one hand and Dr Spragg on the other, shows in relation to the label "Post Traumatic Stress Disorder", may turn on questions of causation or aetiology.' 64 That means that the decision-maker is required to review the collection of symptoms disclosed by the evidence and determine whether or not it fits within the template afforded by any SoP considered applicable. That is to be done whether or not the claimant or any witness has ascribed to the collection of symptoms a label such as "malignant neoplasm of the larynx" which is to be found in the SoP under consideration. The task for the decision-maker is to find whether, on the balance of probabilities, the veteran suffered from a condition specified in the SoP, in this case, "malignant neoplasm of the larynx" and whether at least one of the factors set out in cl 6 of the SoP was related to the veteran's war service. In the present case, it seems that the Tribunal was relieved from the need to make the latter finding by the Commission's concession that factor (a) in cl 6 of the SoP existed in respect of the Veteran and was related to his war service. However, that concession was dependent on an affirmative finding that, at the time of his death, the Veteran was suffering from malignant neoplasm of the larynx. 65 Faced as it was with the absence of any medical opinion that the Veteran's symptoms, as found by the Tribunal, made it more probable than not that he was suffering from malignant neoplasm of the larynx, the Tribunal consulted a medical textbook and an "Intelihealth website" and provided those authorities to the Commission for its comments. As well, the Commission extracted from the same authorities certain "general comments" about malignant neoplasms of the larynx and noted that "other symptoms of throat cancer" include nine specified symptoms which the Tribunal apparently identified from the authorities to which it had referred. The Tribunal then made this finding about the extent to which the symptoms which it identified from the medical authorities had been exhibited by the Veteran; '29 Although Mrs Green did not use the terminology used in the medical authorities, it is abundantly clear that the symptoms which she described are all symptoms of throat cancer. I have no reason to doubt that Mrs Green was being absolutely forthright and accurate in describing the symptoms of which she witnessed.' 66 It was next noted in the Commission's reasons that the Repatriation Commission had consulted Dr F J Morgan "regarding the authorities provided to it dealing with malignant neoplasm of the larynx." The actual text of Dr Morgan's report (if any) was not in evidence before the Tribunal but the substance of his opinion was conveyed to the Tribunal by this letter dated 13 April 2006, a copy of which was forwarded to the respondent: 'I refer to the letter from the District Registrar of the Tribunal dated 30 March 2006, inviting submissions on two attached papers, taking into account the symptoms Mrs Green said she observed in her husband immediately prior to his death.

The respondent has sought advice from the DVA Senior Medical Officer (Appeals), Dr F J Morgan, who has advised that the two articles may be relied on by the Tribunal in respect of throat cancer. Mrs Green's descriptions of her husband's symptoms may be summarised as:

• in the 1980's Mr Green continually complained of a sore throat;

• in the early 1980's Dr Laigo(/s? - Local Medical Officer?) suggested consultation with a specialist, a suggestion not followed up;
• Mrs Green says that during the marriage she personally witnessed her husband's pain and physical weakness. Dr Morgan further advised that the symptoms are consistent with throat cancer, but also with other chronic laryngeal conditions such as non-malignant tumours (e.g. laryngeal nodules, squamous papillomas) and chronic infections such as TB or candida. They do not point to any specific laryngeal condition. The respondent submits that the material as to Mr Green's signs and symptoms is not sufficiently specific to point to or raise a reasonable hypothesis that he suffered from throat cancer (larynx or pharynx).' 67 The Tribunal summarised Dr Morgan's opinion as being that "the symptoms described by Mrs Green are consistent with throat cancer" but are also consistent with other, non-malignant, chronic laryngeal conditions and "did not point to any specific laryngeal condition". However, the Tribunal considered that Dr Morgan's opinion did not end the matter and recited further information which it had gleaned from the internet sites of Cancer Help UK and Cornell University about certain of the non-malignant conditions postulated by Dr Morgan and observed at [31] of its reasons: 'All of these conditions have smoking as one of the possible causes. No SoP exists for these diseases and the Repatriation Medical Authority has not given notice under s 120A (2) that it does not intend to make a SoP for these diseases.' 68 In my view, the non-existence of an SoP for those diseases did not absolve the Tribunal from the need to make a finding as to whether it was more probable than not that the Veteran suffered from one or other of them rather than from malignant neoplasm of the larynx. 69 In respect of the other possible conditions postulated by Dr Morgan, the Tribunal concluded (at [31]): 'As for chronic infections such as TB and Candida, the symptoms which are described on the InteliHealth website do not match the symptoms so graphically described by Mrs Green. I have therefore formed the view that these infections, although an "outside possibility", are unlikely to have been the cause of Mr Green's problem. 70 After referring to the latitude extended to fact-finding by s 119(1)(h) of the VE Act, the Tribunal reached this conclusion at [33] of its reasons; 'Despite the lack of medical records, the symptoms described by Mrs Green in her own words bear such a close resemblance to those described in the medical authorities to which I have referred that I have come to the conclusion, on the balance of probabilities, that Mr Green did suffer from a severe laryngeal condition immediately before his suicide.' 71 In the penultimate paragraph [34] of its reasons the Tribunal expressed itself as "satisfied, on balance, that Mr Green suffered from a malignant neoplasm of the larynx or another severe laryngeal condition". It went on to repeat that, in the event of a finding that the Veteran had suffered from a malignant neoplasm of the larynx, the Commission would concede that he had "a war-caused smoking habit sufficient to meet the SoP factor for malignant neoplasm of the larynx". Despite that repetition, the Tribunal did not go on to make a specific finding as to whether or not the Veteran suffered from malignant neoplasm of the larynx. It apparently regarded itself as able to make only the undifferentiated finding recounted at [70] above that the Veteran had suffered from "a severe laryngeal condition". It may be that the Tribunal considered that it was relieved from the need to be more specific because it regarded each of the various severe laryngeal conditions from which the Veteran may have suffered as a "severe illness" within the meaning of "severe psychosocial stressor" as defined in the SoP concerning Suicide or Attempted Suicide. This speculation receives some support from the concluding part of [34] of the Tribunal's reasons where, after noting the Commission's concession, it observed: 'Even if Mr Green suffered from another form of chronic laryngeal disease such as those described by Dr Morgan, because there is no SoP in existence for those diseases, and the Repatriation Medical Authority has not given notice under s 120A (2), it is open to me to find that, on the balance of probabilities, Mr Green suffered from a severe illness which was smoking related. This would satisfy a reasonable hypothesis connecting Mr Green's illness with his war service. It follows, in my opinion, given that the sub-hypotheses support the hypothesis linking Mr Green's death with his operational service, the hypothesis must be reasonable. In the circumstances, I cannot be satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Green's death was war-caused.' 72 That observation overlooked the fact that the Commission's concession was expressly conditioned on a finding of malignant neoplasm of the larynx. If the Tribunal was unable to make a finding as specific as that, it remained under the necessity, in the absence of an appropriately widened concession, of determining whether the more generalised condition which it was able to ascribe to the Veteran was a "severe illness" evoking feelings of substantial distress in the Veteran within the definition of "severe psychosocial stressor" in the SoP concerning "Suicide or Attempted Suicide". The Tribunal was also obliged to find on the balance of probabilities that whatever "severe illness" it did find was related to the Veteran's war service either by the "war-caused smoking habit" which the Commission had been prepared to concede in the event of a finding of malignant neoplasm of the larynx or by some other link such as exposure to toxic fumes for which the respondent had contended in the alternative. 73 The Tribunal's failure to ask the questions necessary to make at least the findings of fact which I have just indicated was, in my opinion, an error of law in the construction and application of the relevant sections of the VE Act and the two SoPs in issue. It follows that the appeal must be allowed and the decision of the Tribunal of 8 May 2006 be set aside. The respondent's application for review of the decision of the Veterans' Review Board will be remitted to the Tribunal to be heard and determined according to law. 74 In light of the conclusion just reached, it is unnecessary to resolve the further question agitated on the appeal of whether the Tribunal denied the Commission procedural fairness by having recourse, without notifying the Commission, to material on the internet sites of Cancer Help UK and Cornell University. However, it is appropriate to observe that not a few of the difficulties in this case appear to have arisen because the Tribunal decided it "on the papers". Doubtless that was seen to be desirable because of the respondent's residence in the Philippines and her inability to be represented when oral submissions could have been received. Nevertheless, it denied the Tribunal the facility to receive assistance from the Commission about the findings available on the evidence including that derived from the internet and whether it was prepared to extend its concession of a war-caused smoking habit to a finding other than one of malignant neoplasm of the larynx. 75 It is also not necessary, for reasons already indicated, to determine whether it was open on the material before the Tribunal for it to find that the Veteran, immediately before his suicide, had suffered from "malignant neoplasm of the larynx or another severe laryngeal condition" or from "a severe laryngeal condition". 76 As agreed by the Commission there will be no order as to the costs of the appeal. I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate: Dated: 30th October 2008 Counsel for the Appellant: Ms J MacDonnell

Solicitor for the Appellant: Australian Government Solicitor

Counsel for the Respondent: Dr I Freckleton SC with Ms M Karagiannakis

Solicitor for the Respondent: Russell Kennedy Solicitors