Repatriation Commission v Hill

STATUTORY FRAMEWORK 6 Section 13(1) of the VE Act provides that the Commonwealth is liable to pay a pension to the dependents of a veteran whose death was 'war-caused'. Section 8(1) of the VE Act describes the circumstances in which a veteran's death is to be taken as 'war-caused' and includes the circumstances where the 'death of the veteran arose out of, or was attributable to, any eligible war service': see s 8(1)(b). 7 The standard of proof to be applied to determine whether a veteran's death is 'war-caused' is stipulated in s 120(1) and (3) of the VE Act which relevantly provides: (1) Where a claim under Part II for a pension in respect of…the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine…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.

(3) In applying subsection (1) or (2)…in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

…if the Commission, after consideration of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the…death with the circumstances of the particular services rendered by the person

8 The operation of such statutory provisions was summarised by Buchanan J in Byrne v Repatriation Commission (2007) 242 ALR 620. At [26] his Honour said: Subsection (3) of s 120 therefore contains a statutory direction that the Repatriation Commission (or, in this case, the AAT) is to be satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that an injury was a war-caused injury if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the veteran. By the use of that statutory direction the legislation fastens upon an opinion that no reasonable hypothesis is available and directs that it satisfy the onus of proof beyond reasonable doubt. In these circumstances the claim will be rejected.

9 In Bushell v Repatriation Commission (1992) 175 CLR 408 Mason CJ, Deane and McHugh JJ, said (at 413): Notwithstanding the submission of counsel for the Commission, s. 120(3) is not exhaustive of the content of s. 120(1). Sub-section (3) is concerned with whether "the material" raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of sub-s. (3), as demonstrated by its terms and its history, is to ensure that a claim to which s. 120 applies is not met unless there is some material which raises the relevant causal hypothesis.

10 At 414 their Honours said: The material will raise a reasonable hypothesis within the meaning of s. 120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.

11 At 415 their Honours said: If the material does raise a reasonable hypothesis of a connexion between the service and the injury, disease or death, the claim must be dealt with in accordance with s. 120(1). That is to say, the commission must determine that the injury, disease or death was war caused "unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination."

12 Section 120(1) and (3) are affected by s 120A. Section 120A applies in respect of claims made under the VE Act on or after 1 June 1994. Section 120A and ss 196A to 196ZP were introduced in order to establish a more certain basis for the finding of a medical hypothesis and to ensure that 'medical opinions supported by little or no medical-scientific evidence do not prevail over the carefully developed mass of medical-scientific opinion' (see Explanatory Memorandum to the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994). Such changes allow for the creation of a Statement of Principles ('SoP') to be determined by the Repatriation Medical Authority ('the Authority') which establish the relevant relationship between service and the death claimed by applicants for pensions. 13 Section 120A(3) of the VE Act relevantly provides that a hypothesis connecting, inter alia, the death of the person with the circumstances of any particular service rendered by the person is reasonable only if there is a SoP that upholds the hypothesis. Section 196B(1) authorises the Authority to formulate SoPs for the purpose of the VE Act. Section 196B(2) relevantly provides: (2) If the Authority is of the view that there is sound medical‑scientific evidence that indicates that a particular kind of… death can be related to:

the Authority must determine a Statement of Principles in respect of that kindof… death setting out: (d) the factors that must as a minimum exist; and

(e) which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting[a]… death of that kind with the circumstances of that service. 14 In Repatriation Commission v McKenna (1998) 52 ALD 72 at 80 Goldberg J described the operation of an SoP as follows: For the purposes of s 120A(3) of the Act the hypothesis which has to be upheld by a Statement of Principles is the hypothesis which connects the disease suffered by a veteran with the circumstances of his service. So stated, the hypothesis has to point to a connection which starts with the disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a Statement of Principles and, if need be, by more than one Statement of Principles.

15 Section 120A(4) of the VE Act provides that s 120A(3): …does not apply…if the Authority has neither determined a Statement of Principles under s196B(2), nor declared that it does not propose to make such a Statement of Principles in respect of… the kind of death met by the person…

RELEVANT STATEMENTS OF PRINCIPLES 16 Accordingly, the first enquiry the Tribunal should have made is whether a SoP had been made in respect of the 'particular kind of…death' suffered by the veteran. 17 An instrument entitled 'Revocation and Determination of Statement of Principles concerning Ischaemic Heart Disease' (No. 53 of 2003 as amended by No. 9 of 2004) ('the IHD SoP'), now replaced by No. 89 of 2007, was operative at the date of the Commission's decision. The replacement is not relevant, since the Commission was required to consider the IHD SoP in accordance with the SoP prevailing at the date of its decision: see Repatriation Commission v Gorton (2001) 110 FCR 321. In all relevant respects, the 2004 and 2007 IHD SoPs are identical. 18 Paragraph 8 of the IHD SoP provided that '"death from ischaemic heart disease" in relation to a person includes death from a terminal event or condition that was contributed to by the person's ischaemic heart disease'. Paragraph 2(b) of the IHD SoP provided: For the purposes of this Statement of Principles, "ischaemic heart disease" means a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis or vasospasm of the coronary arteries.

19 Paragraph 8 of the IHD SoP defined 'terminal event' as follows: "terminal event" means the proximate or ultimate cause of death and includes:

'Condition' is not defined. 20 The respondent contended before the Tribunal that paragraph 5(f) of the IHD SoP applied. Paragraph 5 provided: The factors that must exist before it can be said that, on the balance of probabilities, ischaemic heart disease or death from ischaemic heart disease is connected with the circumstances of a person's relevant service are:…

A list of factors followed. Subparagraph (f) thereof relevantly relates to the smoking of cigarettes prior to the onset of IHD. 21 At the date of the Tribunal's decision the Authority had also determined a SoP entitled 'Determination of Statement of Principles Concerning Mesangial IgA Glomerulonephritis' being Instrument No. 63 of 2001 as amended by No. 75 of 2002 ('the GN SoP'). Glomerulonephritis is a renal disease characterised by inflammation of the glomeruli, or small blood vessels in the kidneys.

THE TRIBUNAL'S DECISION 22 The Tribunal, in setting aside the decision of the Veterans' Review Board dated 13 April 2006, found that the veteran's death was 'war-caused' as defined in s 8(1) of the VE Act. 23 The Tribunal considered the 'particular kind of…death' (see s 196B(2)) suffered by the veteran as referred to in s 120A(2) of the VE Act. It referred to the medical evidence, which was not in dispute, that the veteran developed acute focal necrotising glomerulonephritis, a kidney disease, in 1993 and almost simultaneously developed hypertension in consequence of such condition. In February 1996 the veteran's renal function was mildly impaired and in November 2000 there was moderate renal dysfunction which deteriorated markedly in 2002. The veteran also suffered a myocardial infarct in 1999. An angiogram revealed triple vessel disease necessitating coronary artery bypass surgery. The veteran suffered cardiac failure in June 2002 associated with a chest infection and deterioration of renal function. The veteran encountered difficulties with his memory from approximately 2000 and by August 2002 he was diagnosed as suffering from a type of Alzheimer's dementia. 24 Professor O'Rourke, a cardiologist, attributed the veteran's heart failure at the time of death to glomerulonephritis which caused the veteran's hypertension and renal failure and maintained that there was no evidence of IHD being a factor in his death. Professor O'Rourke believed that following the veteran's successful by-pass surgery in 1999 the veteran had made a complete recovery from IHD. 25 Dr Butler, a consultant physician, opined that the effects of the previous myocardial infarct had contributed to heart failure and that there was a likelihood of approximately twenty per cent that the veteran had IHD at the time of his death. 26 The Tribunal made the following finding (at [39]): On the evidence, including that of Professor O'Rourke and Dr Butler, we find that there were two kinds of death: heart failure and kidney failure. We do not consider that either dementia or IHD was a "kind of death". There is no SoP for either of the kinds of death we have found.

27 Believing that there was no applicable SoP, the Tribunal then considered whether there was a reasonable hypothesis connecting the veteran's death with his service (at [40]): As there is no SoP, we therefore proceed according to the principles outlined in Bushell and Byrne. Section 120 (3) of the Act provides, inter alia, that, for there to be no sufficient ground for determining Dr Walker's death was war caused, the material before us must not raise a reasonable hypothesis connecting the injury, disease or death with the service rendered by Dr Walker…

28 The Tribunal concluded that a hypothesis was established. That hypothesis was that the veteran developed a heavy smoking habit during and in consequence of his service which caused IHD and that IHD was one cause of his death. The Tribunal found that such hypothesis was reasonable and that it was not satisfied beyond a reasonable doubt that any element of the hypothesis had been disproved beyond reasonable doubt.

APPLICATION OF PRINCIPLES 29 In Repatriation Commission v Deledio (1998) 83 FCR 82 the Full Court explained the method of the application of s 120(1) and (3) at page 91 where the Court said: The method of applying s 120(1) and (3) is now well established:

(1) One commences with subs (3). The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact.

(2) The second step under subs (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the 'raised facts') and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision-maker must identify the facts said to point to it.

(3) Whether a hypothesis is reasonable is a question of fact. The decision-maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point.

(4) If the decision-maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.

See also Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571. 30 Deledio also determined (at 97) that if no SoP were in force, the hypothesis will not be taken to be reasonable and in consequence the application must fail. Such observation has subsequently been disapproved: see Bull v Repatriation Commission (2001) 188 ALR 756 at [14]; Woodwood v Repatriation Commission (2003) 131 FCR 473 at [55]; and Repatriation Commission v Hancock (2003) 37 AAR 383 at [10]. 31 In Repatriation Commission v Codd (2007) 95 ALD 619 Gordon J observed (at [20]) that the Deledio methodology is subject to three qualifications. Firstly, the methodology is not to be applied mechanistically; secondly, if no SoP is in force reference must be had to s 120A(4) of the VE Act which provides that s 120A(3) does not apply in certain circumstances; and thirdly there are two preliminary steps to the Deledio analysis as expounded by Selway J in Hancock. Such steps were identified at [11] as follows: (a) First, the AAT was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out...

(b) Next, the AAT was required to determine on balance of probabilities what "kind of death" [the veteran] had suffered. This involved the identification, on balance of probabilities, of any and all [SoP] and/or determinations under s 180A(2) of the Act and any other "kinds of death" which were applicable to that death.

(c) If one or more [SoP] were applicable, then the methodology in Deledio is applicable in relation to those "kinds of death"...

32 It follows that where a SoP is in force concerning the 'kind of death', unless the decision maker is provided with material which points to a hypothesis which satisfies a template of the relevant SoP, the claim that the death is related to operational service cannot succeed. As was explained by the Full Court in Repatriation Commission v Hill (2002) 69 ALD 581 at [57]: The result is that, where it applies, the SoP prescribes the essential content of what is a reasonable hypothesis, for s 120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of a veteran's particular service. In order to satisfy ss 120(3) and 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable.

33 Accordingly, where no relevant SoP exists, an evaluation is to be made under s 120(3) to determine whether any hypothesis is reasonable, unaffected by s 120A(3): see s 120A(4).

SUBMISSIONS 34 The Commission submits that the Tribunal was required, when characterising the 'kind of death' met by the veteran, to have regard to the characterisation of such death as provided by the IHD SoP. The veteran must have met a death with which that SoP is concerned in order to link such death with his war service: see Lees v Repatriation Commission (2002) 125 FCR 331 at [16]. 35 The Commission submits that the Tribunal erred in its finding that the 'kind of death' sustained by the veteran was heart failure and kidney failure, and that such finding conflates the medical cause of death with the actual death of the veteran. The Commission referred to paragraph 8 of SoP No. 89 of 2007 which defines 'death from [IHD]'to include'death from a terminal event or condition that was contributed to by the person's [IHD]'. As mentioned earlier, this was not the applicable SoP, however, the relevant wording is identical to the SoP that was in force. 'Terminal event' is defined in the IHD SoP and includes cardiac arrest. The Commission contends that the Tribunal's finding did not consider the cause of heart failure or kidney failure. Instead the Tribunal wrongly made its finding on the 'kind of death' based upon the proximate cause or terminal event. 36 The Commission also submits that given that the Tribunal found that IHD was not a 'kind of death', it follows that the Tribunal must, as a consequence of that decision, have not been satisfied, on the balance of probabilities, that IHD had contributed to the veteran's death. That is, the Tribunal's hypothesis connecting the veteran's death to his service was erroneous because it was premised on IHD contributing to the veteran's death. 37 Further, by the finding that IHD was not a cause of death of the veteran, but that glomerulonephritis was such cause, the Commission submits that the Tribunal should have concluded that the GN SoP was applicable. However, the application of the GN SoP would not have assisted the respondent because the GN SoP did not include cigarette smoking as a cause of glomerulonephritis. 38 The respondent submits that the determination of the 'kind of death' was a question of medical causation and as such comprised a factual finding which could not be the subject of an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 ('the AAT Act'); that the factual finding was open to the Tribunal since there was evidence that heart failure occurred; and that heart failure was a cause of the veteran's death. 39 The respondent also submits that there is no SoP applicable where heart failure 'constituted a kind of death'. The respondent submits that the correct interpretation of a 'terminal event or condition' as contained in the IHD SoP comprises the 'terminal event or terminal condition.' Any finding that the veteran's heart failure was the 'proximate' or 'ultimate' cause of death or that the IHD was the 'underlying' or 'contributing' 'medical cause of death' was a factual consideration made on the medical evidence before the Tribunal. 40 The respondent submits that if the Tribunal made a factual finding to the effect that the heart failure sustained by the veteran was the proximate or ultimate cause of death, and was therefore a terminal event or terminal condition as defined in the IHD SoP, the SoP would have been applicable to the 'kind of death' sustained by the veteran. 41 The respondent submits that no party made any submission to the Tribunal that a 'kind of death' of the veteran was mesangial IgA glomerulonephritis and that no party referred to the GN SoP.

Question of fact or of law 42 It is convenient to first consider the preliminary question raised by the respondent, namely whether the Tribunal's finding as to the cause of the veteran's death is a question of fact or of law. If it be the former, no appeal would lie to this Court because s 44(1) of the AAT Act provides: A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

43 In Comcare v Etheridge and Others (2006) 149 FCR 522, Branson J considered the determination of question of fact and question of law. Her Honour, adopting the reasoning of Gummow J in TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (1988) 82 ALR 175 at 178-179, said at [13]: …where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of law.

44 In Collector of Customs v Pozzolanic Enterprises Pty Ltd; Collector of Customs v Pressure Tankers Pty Ltd (1993) 43 FCR 280 the Full Court considered such question. At 287 the Full Court distilled five propositions which emerged from previous authority relating to such question. Relevantly, the fourth proposition states: The effect or construction of a term whose meaning or interpretation is established is a question of law: Life Insurance Co of Australia v Phillips…

45 In the present proceedings the 'kind of death' to be determined involves the question whether such words should be given their ordinary meaning or some technical meaning. Accordingly, this question of construction raises a question of law. The Full Court in Pozzolanic stated the fifth proposition as follows (at 287): The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law: Hope v Bathurst City Council (1980) 144 CLR 1 at 7 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) at 379 (Sheppard and Burchett JJ).

46 The Amended Notice of Appeal raises questions of statutory interpretation and of the application of the provisions of the IHD SoP, and whether the facts support the claim. As such, questions of law are pivotal to the appeal. Accordingly, the Court rejects the contention that the Tribunal's finding concerning the cause of death of the veteran was a finding only of fact.

Misapplication of IHD SoP 47 The application of the statutory provisions to the claim required the Tribunal to consider separate stages. The first step was to determine what the 'kind of death' was. As was observed by Selway J in Hancock at [9], such identification is a critical step in the analysis. Next, the Tribunal was required to determine whether s 120A applied, that is whether a SoP existed which addressed the question of the reasonableness of the hypothesis concerning the connection between the 'kind of death' and service of the veteran. If a relevant SoP existed, the Tribunal was, pursuant to s 120A of the VE Act, required to determine the claim in respect of the death in accordance with the template contained in the SoP. By satisfying the template, a reasonable hypothesis linking the veteran's service with the death would thereby be established. 48 If no relevant SoP existed, s 120A(3) had no application by virtue of s 120A(4). In this event, the Tribunal was required to assess the claim having regard only to s 120(3) of the VE Act. 49 In Codd Gordon J said at [31]: The phrase "kind of death met by the person" in s 120A(4) asks a causative question. It is not a question about whether the death was slow, fast or the like. It asks "questions of medical causation" about the cause of death and does so in a particular context - the VE Act and, in particular, Pt VIII of the VE Act: see also explanatory memorandum to the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 (Cth) pp i-ii.

50 At [36] Gordon J said: The "kind of death met by the [veteran]" that is to be identified requires examination of the causal connection between the death and the circumstances of the service. In particular, it requires examination of the relevant hypothesis that is said to provide the causal link between death and service.

51 At [39] her Honour said: On the proper construction of the VE Act, consistent with its evident statutory purpose and existing authority, the "kind of death met by the [veteran]" that is to be considered is the question of medical causation or the kind of death, being a medical cause of death, including the contributing or underlying medical cause of death.

52 Both Professor O'Rourke and Dr Butler confirmed that heart failure is a condition and not a disease. It follows from such evidence that the Tribunal's conclusion that the veteran's death resulted from 'heart failure and kidney failure' ignored the causes of such failures and conflates the 'terminal event or condition' with the medical cause of the veteran's death. 53 By failing to appreciate the underlying nature of the disease but directing its attention to the consequence of the disease, namely heart failure, the Tribunal failed to direct its attention to the circumstances leading to the 'kind of death'. Instead, the Tribunal had regard to the proximate or ultimate cause of death and committed an error of law of a similar kind referred to in Codd where the Tribunal found that the 'kind of death' met by the veteran was by road accident. 54 The IHD SoP had been made, and it was directly relevant to the respondent's claim which contended that the veteran's 'kind of death' (heart failure) was caused by IHD. Accordingly, the Tribunal was required to consider the IHD SoP in accordance with the SoP prevailing at the date of its decision: see Gorton. Applying the IHD SoP, the critical issue for the Tribunal's determination was the identification of the cause of the IHD, as itemised in the IHD SoP.

Purported application of s 120(3) 55 Having determined that there was no applicable SoP for heart failure or kidney failure, the Tribunal then applied ss 120(1) and 120(3) of the VE Act and had regard to the observations of the High Court in Bushell to determine whether there was a reasonable hypothesis that established the veteran's cigarette smoking habit was connected to his death. Having observed that there was evidence that the veteran's tobacco consumption had been between 30 and 50 pack years as estimated by Dr Butler, the Tribunal found that the hypothesis raised by the respondent linked the veteran's service with his death from heart failure. 56 In such deliberation the Tribunal noted the evidence of Dr Butler that the requirements of the IHD SoP in respect of the veteran's tobacco consumption would be met. The Tribunal also observed at [52]: Given the terms of s 196B we accept that the existence of the SoP for IHD, which includes smoking as a factor, is a relevant matter in respect of this element of the hypothesis.

57 Later in its decision the Tribunal observed (at [54]): As we understand the evidence of Dr Butler and Professor O'Rourke, they agreed that there was no evidence of damage as a result of ischaemia within the two weeks before Dr Walker's death, but previous damage could have contributed to heart failure. Further, Dr Butler said that there was 10 or 20 per cent likelihood of systolic failure on the basis of IHD. Professor O'Rourke also said that there was a less than 10 per cent probability that IHD played a role in Dr Walker's death. That is evidence from both doctors of a likelihood of a contribution from IHD to Dr Walker's death.

58 The Tribunal then concluded at [57]: The hypothesis is therefore that Dr Walker developed a heavy smoking habit during and as a consequence of service, which continued until his bypass surgery in 1999, and which caused IHD, which in turn was a cause of his death. We find that hypothesis is reasonable.

59 Since the IHD SoP existed, it was not open to the Tribunal to attempt to find a reasonable hypothesis otherwise than in accordance with that SoP. As was held by the Full Court in Woodwood at [100]: Once an [sic] SoP is determined in relation to a particular condition, it covers the field in relation to that condition.

Accordingly, the Tribunal erred by determining that a reasonable hypothesis existed, pursuant to ss 120(1) and 120(3) of the VE Act, linking the veteran's service to his death.

Standard of proof 60 The evidence provided to the Tribunal established, at its highest, that there was a possibility that IHD was a component in the veteran's death. Dr Butler rated such possibility as a ten or twenty per cent chance and Professor O'Rourke assessed such possibility as probably less than ten per cent. This possibility was found by the Tribunal to be sufficient to find that the hypothesis connecting service to the veteran's death was reasonable in assessing the claim under s 120(3) of the VE Act: In our view the material before us points relevantly to one cause of Dr Walker's death being IHD. [53]

61 In assessing what the veteran's 'kind of death' was, the Tribunal was required, by s 120(4), to be satisfied on the civil standard of proof, that is, on the balance of probabilities. In Repatriation Commission v Smith (1987) 15 FCR 327, Beaumont J said at 335: Even if the Tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation.

62 Given that the Tribunal found that IHD was not a 'kind of death', it must be assumed that the Tribunal was not satisfied on the balance of probabilities that IHD was the 'kind of death' met by the veteran. However, failure to satisfy a balance of probabilities test does not lead to the conclusion that IHD cannot have had any contribution whatsoever to the veteran's death. That is, it does not follow that such conclusion has the consequence that IHD could not have contributed to the veteran's death, as the Commission has submitted. The Tribunal's finding only establishes that the contribution has not been sufficient to satisfy the high standard found in s 120(4) of the VE Act. 63 In finding that the veteran's 'kind of death' was heart failure (erroneously, as has been discussed) the Tribunal found that the possibility of IHD contributing to the veteran's death was sufficient to find that it was a cause of the veteran's 'kind of death' and thus ground a reasonable hypothesis under ss 120(1) and 120(3) of the VE Act. While based on a misapplication of the VE Act regarding the 'kind of death', from the Tribunal's perspective it was logical (though again, erroneous) for it to consider the IHD SoP as providing a grounding for a reasonable hypothesis, namely that cigarette smoking caused the veteran's IHD which in turn was a cause of heart failure. The Tribunal has not 'subverted the standard of proof prescribed by s 120 of the VE Act'. 64 It is understandable that the Commission wishes to prevent the Tribunal using the methodology it adopted in the proceedings before it to subvert the purpose of the SoP scheme. However, the mischief in this instance arose not because the Tribunal subverted the correct standard of proof, but rather because the Tribunal reached an incorrect answer to the 'kind of death' involved. Provided that the Tribunal correctly interprets the phrase 'kind of death', such that it accords with the meaning of that phrase as judicially determined, the risk of the misapplication of the SoP scheme will be minimised.

Cause of death of veteran 65 The Commission submits that glomerulonephritis was the cause of the veteran's death, and that the Tribunal erred in finding that there was no SoP for death arising from kidney failure. 66 As referred to earlier, the Tribunal found that the veteran suffered two 'kinds of death', namely heart failure and kidney failure. Paragraph 8 of the GN SoP contains the following definition: "Death from mesangial IgA glomerulonephritis" in relation to a person includes death from a terminal event or condition that was contributed to by the person's mesangial IgA glomerulonephritis;

"Terminal event" means proximate or ultimate cause of death and includes: … (c) cardiac arrest

67 The Tribunal said at [25]: Professor O'Rourke attributed Dr Walker's heart failure at the time of death to glomerulonephritis which caused hypertension and renal failure. He maintained that there was no evidence of IHD being a factor in his death. Professor O'Rourke acknowledged that Dr Walker had IHD, with clinical onset in September 1999, but said that he had no symptoms attributable to coronary artery disease following his successful coronary artery by-pass graft in 1999. That is, following the successful surgery in 1999, Dr Walker had made a complete recovery from IHD, and did not suffer from that condition at the time of his death.

68 The Tribunal also observed at [37]: In summary, we understood both doctors to accept that Dr Walker died of renal failure and heart failure and both accepted that the heart failure was a consequence of Dr Walker's hypertension caused by the glomerulonephritis. The difference of opinion was the extent to which IHD contributed to the heart failure.

69 The Tribunal found that IHD was not a 'kind of death' on its apparent acceptance of the evidence that glomerulonephritis caused the veteran's hypertension and renal failure. Following such conclusion, the Tribunal should have asked itself whether glomerulonephritis was a 'kind of death' in respect of which a SoP existed. 70 Having established that the GN SoP had been made, it would have been necessary for the respondent to satisfy the Tribunal that any claim in respect of death by glomerulonephritis was caused by a disease referred to in the SoP, which resulted in renal failure. That is, the Tribunal should have then asked itself whether the hypothesis of a connection between the veteran's death and his operational service was upheld by the GN SoP. 71 The Tribunal overlooked inquiring whether a SoP for glomerulonephritis existed, resulting in the Tribunal's failure to apply the GN SoP template, as was required by s 120A(3) of the VE Act. Further, the finding of the Tribunal that the veteran died of kidney failure erroneously conflated a 'terminal event or condition' with the underlying cause of the veteran's death. Such misinterpretation caused the Tribunal to make an error of law by treating the veteran's kidney failure (the proximate or ultimate cause of death) as a 'kind of death' instead of having regard to the cause of that failure. 72 As such, the provisions of the GN SoP were circumvented in the same manner as the IHD SoP was circumvented. 73 The Commission submits that no new hypothesis can be formulated to connect the veteran's death to his operational service through his glomerulonephritis and claimed 'war-caused' smoking habit since smoking is not a cause of glomerulonephritis recognised by the GN SoP. The Commission refers to the fact that the veteran's nephrologist, Dr Johnson, rejected smoking as a cause of the veteran's glomerulonephritis and renal failure. The Commission therefore submits that it would be futile to remit the matter to the Tribunal. 74 The GN SoP identifies several causes of such disease, but cigarette smoking is not included as a cause of glomerulonephritis for the purpose of the SoP hypothesis. Accordingly, it is arguable that the respondent's claim could not have succeeded because there was no reasonable hypothesis prescribed by the SoP, and therefore as a matter of law, linking the veteran's smoking to his renal condition. Such question however was not the subject of any submissions to the Tribunal and the Court will decline to exercise its power under s 44(7) of the AAT Act to determine that the veteran's death was not 'war-caused'.

CONCLUSION 75 The Tribunal has erred in its finding that the kidney failure and heart failure were the 'kinds of death' suffered by the veteran. It has erred in misapplying the IHD SoP to support a reasonable hypothesis under s 120(1) and (3). It has erred in failing to find that the GN SoP is relevant to the 'kind of death' suffered by the veteran, and it may be that any claim under the GN SoP could not succeed. However, since no submission before the Tribunal dealt with the GN SoP, and since the Tribunal did not consider such issue, the Court will remit the matter to the Tribunal, differently constituted, to enable the respondent's application to be heard and determined in accordance with the law.

COSTS 76 The respondent submits that in the event that the Court upholds the appeal and remits the matter to the Tribunal for reconsideration, she is entitled to receive a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) ('the Costs Act'). Such Act relevantly provides: (1) Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.

(3) The certificate that may be granted under subsection (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent in respect of:

(a) the costs incurred by the respondent in relation to the appeal; and

(b) any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates.

77 The respondent submits that an opinion of the Court directing the Attorney-General to issue a costs certificate is justified since many of the issues raised before this Court had not been previously raised before the Tribunal. By way of example, the respondent relies upon the fact that no reference was made to the GN SoP during the Tribunal hearing. It was also submitted that the cause of death put to the Tribunal by the Commission was 'renal insufficiency' which the respondent contends was not clearly articulated as being different from the finding of renal failure made by the Tribunal. 78 The application for a costs certificate is opposed by the Commission. The Commission submits that such certificate should not issue and relies upon Repatriation Commission v Cornelius (2002) 35 AAR 345. 79 In Cornelius, Branson J found that an application to the Court from a decision by the Tribunal constituted an 'appeal' from a decision of the Tribunal. It followed that the proceeding constituted a 'Federal appeal' within the meaning of the Costs Act. This Court, adopting such finding, determines that it has a discretion to award the relevant certificate. 80 In Cornelius Branson J observed at [11] that costs certificates are 'intended to advance a more specific public interest'. Her Honour continued: That public interest would seem to be the alleviation of the costs burden that can fall on an individual who appropriately and successfully institutes a proceeding before the Administrative Appeals Tribunal or a federal court yet thereafter finds himself or herself a respondent to a successful "appeal" on a question of law or as to the amount of damage awarded at first instance.

Branson J had evidence that the Legal Aid Review Committee had not been satisfied that the unsuccessful respondent in those proceedings had reasonable prospects of success in the application before the Tribunal. Accordingly, the respondent was made aware that her claim was weak. In the present proceedings, no such consideration arises. 81 The issue determined before this Court concerns the interpretation by the Tribunal of both statutory provisions and of SoPs. The Tribunal was not referred by the Commission to the GN SoP in respect of which numerous submissions have now been made by the Commission and which were not raised before the Tribunal. The arguments of the Commission involved a degree of complexity, and the errors of the Tribunal have arisen from a misapplication of the law. The position is not dissimilar to that in Repatriation Commission v Codd [2005] FCA 910. 82 The Court has an unfettered discretion with regard to the award of a certificate, provided that the discretion is exercised judicially: see Bullock and Others v Federated Furnishing Trades Society of Australasia and Others (No. 2) (1985) 5 FCR 476 at 478. Whilst there is no presumption that an unsuccessful respondent is entitled to a certificate, in Repatriation Commission v Milenz [2007] FCA 50, Finn J said at [4]: Given the beneficial purpose of the Veterans Entitlement legislation but accepting the appropriateness of the Repatriation Commission seeking to ensure that administrative decisions made under the Veterans Entitlements Act are made according to law, I consider it appropriate that the burden of making a respondent such as Mr Milenz bear the costs of the appeal in such circumstances undercuts the public interest served by the Federal Proceedings (Costs) Act: see Cornelius at [11]. I would emphasise that in granting a certificate I do take account of Mr Milenz' status as a war veteran though I do not consider it to be of decisive significance.

83 The Court considers that the same considerations apply in the present circumstance. The correction of the Tribunal's reasoning provides sufficient justification of the issue of a certificate. 84 In these circumstances, and taking into consideration the fact that the Commission's submissions have been upheld, the Court considers it appropriate that a costs certificate should issue in respect of the unsuccessful respondent's costs, and the costs of the Commission that the respondent must pay. I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 30 March 2009 Counsel for the Applicant: Ms MacDonnell

Solicitor for the Applicant: Australian Government Solicitor