Repatriation Commission v Perrot, Marjorie [1984] FCA 139

i The corrigendum issued cn 29 June 1984 was incorrect. Pege 10, lines Il, 12 and 13 of the Judgement of the Court of 29 May 1384 snould read as follows:

"the onus of proof shall '1¢ on the person or authority who contends that the

claim, applhieation, ov appeal should nr t be granted or allowed to tne full

_oW SOUTH WALES DISTRICT REGISTRY ) No G 170 of 1983 " GENERAL DIVISION )

On appeal from the Repatriation Review Tribunal constituted by PJ Moore, Deputy

President, RA Osborn, Services Member, and PM Healy, Services Member

Amendment to the judgment of the Court of 29 May 1984.

Page 10, line 11: After the word 'proof', delete 'shall' and replace it with 'should not'.

REPATRIATION - pension payable to dependent widow -- death of former member of the Forees from carcinoma of unknown asetiology - onus of proof - tribunal required to be satisfied beyond reasonable doubt of a negative -- nature and intention of statutory process - two stage process rejected.

APPEAL - question of law - whether no tribunal could come to conclusion - proof of negative and alternative rational possibilities.

ADMINISTRATIVE LAW - obligation to give reasons for decision - sanetion for failure - adequacy of reasons - special circumstances.

EVIDENCE - onus of proof - uncontradicted evidence - rejection to be explamed - special circumstances of statutory onus of proof -- approach to evidence in such

LAW REFORM - standard repatriation documentation - costs and delays of numerous repatriation reviews and appeals.

Repatriation Act 1920 ss 47(2), 101, 107VH(2Xa), 107VG(b), 107VK(1), 107VZZH THE REPATRIATION COMMISSION v MARJORIE PERROT

i "> NEW SOUTH WALES DISTRICT REGISTRY ) No G 170 of 1983

On appeal from the Repairiation Review Tribunal constituted by PJ Moore, Deputy

President, RA Osborn, Services Member, and PM Healy, Services Member

KIRBY J: This is yet another appeal under the provisions of the Repatriation Act 1920 (the Act*) involving the entitlement to a pension of the widow of a serviceman who died

of cancer. As chance would have it, the matter was argued on the day that the Full

Courl delivered its yet unreported decision in O'Brien v The Repatriation Commission

(unreported, 11 April 1984) in which the principles to be apphed in these cases were

William Henry Perrot ('the deceased") was the husband of Marjorie Perrot, the respondent to this appeal. He was born in 1921. At the age of 20 years, he enlisted as a private in the Australian Army on 5 November 1941. He offered for service in Australia and abroad. On enlistment, the deceased was single. He married the respondent in October 1942. As diselosed by the medical history sheet at the time he was marched in he enjoyed rude good health. He saw service until he was discharged on 15 December 1945. During that service he suffered two periods of hospitalisation. These were related to malaria and varicose veins. The malaria arose as a result of his service at Milne Bay, whence he was sent in the dangerous days of March 1943. Inevitably, the reeords of medical difficulties during war service are fragmentary, although in October 1945 there was some discussion

of early symptoms of hypertension. He was discharged fit.

Malaria continued to trouble him, as did varicose veins which he

attributed to marching. Liability was accepted for these conditions for pension purposes,

In November 1966 he told a doctor in Newcastle that since discharge he had been 'emotionally unstable and a worrier'. At that time he smoked eight cigarettes a day and reported that his mother had died from cancer, his father at age 55 from a

coronary occlusion. His psycho-neurosis was considered 'very mild'. However, his doctor

considered that 'the origin of his emotion instability seems to date from war service'.

In September 1969 he suffered a probable myocardial infarction whieh he attributed to the aecepted war disability of hypertension. Liability was declined but a subsequent appeal resulted in his rate of pension being significantly increased to 80% disability due to war service. His war pension was inereased to 100% rate from 8 May

In June 1980 at the Prince of Wales Hospital, Sydney, the deceased was diagnosed as suffering from metastatic carcinoma of the liver, with a primary site apparently in the stomach. Thereafter he received treatment for terminal carcinoma. Hts last period of admission to hospital was on 6 October 1980. He died on 17 October 1980. The final diagnosis was metastatie adenocarcinoma 'presumably of the gastro-intestinal tract!. The respondent lodged a claim for benefits under the Act claiming that the deceased's death was due to his war service. This claim was considered by the applicant. The result of that consideration is found in a form (Form D.2063) whieh contains the only medical evidence that was before the Repatriation Review Tribunal ('the Tribunal') relevant to the aetiology of the deceased's terminal condition. As reproduced, this document is unsigned. It was apparently completed by a medical practitioner. Once again, it is necessary for this Court to appeal for an improvement in the standard documentation

The form, after attributing the cause of death to 'disseminated

adenocareinoma' contains the following observations:

Carcinoma of the stomach is the most common neoplasm of the GI Tract. it is twice as common in men as women. It tends to occur in the age

groups over 45 years. Nothing 1s known of its aetiology though there is a striking hereditary influence in certain families. There also appears to be a clear association between blood group A° and eancer of the stomach. Attempts have been made to discover a pre-cancerous lesion of the

stomach, and there is evidence that chronic atrophic gastritis precedes

gastric carcinoma. The member died at the age of 59 from widespread

cancer and thus he was in the usual cancer age group. The exact aetiology is unknown, however the course of the disease was rapid, he died on 17.10.80. ie 18 months after he first presented to his LMO feeling unwell.

The time lapse between war service and recurrence of malignancy precludes any causal relationship between X/M's fatal disease and his service. I note that X/M's hypertension and his psychoneurosis were well

controlled throughout his illness and were not related to his cause of

In response to the instruction of the form to set out 'whether in your opinion the

incapacity from which the veteran has died, arose out of, or is attributable to his eligible

period of service' the unidentified medical officer of the applicant repled: NO. Not due to service in any way. Death was due to a rapidly fatal malignancy (cancer of the stomach with metastases) occurring in a man in

In response to the question whether the incapacity from which the veteran died had been 'eontributed to in any material degree or has been aggravated by the conditions of his eligible period of service' the response was hkewise in the negative, it being declared 1 have studied the records relating to the veteran'. A large file of records was produced to

the Court and apparently was before each level of the earlier decision-making process.

The respondent's claim was rejected by the Repatriation Board which

In the absence of any contrary medical opinion, the Board accepts the opinion expressed by the Departmental Medieal Officer as to the cause of disseminated adenocarcinoma. That opinion is accepted as providing a reasonable explanation of the cause of the condition to the exclusion of factors relating to the member's war service. The Board is satisfied beyond reasonable doubt, that there are insufficient grounds for allowing the claim by the widow that the member's death was due to his war

The respondent appealed from the Board to the Repatriation Commission, the present applicant. The Commission on 8 April 1981 disallowed the appeal, concluding that it was satisfied that 'a causal relationship between the member's war service and the cause of his death has been excluded beyond reasonable doubt'. From this decision the respondent appealed to the Repatriation Review Tribunal persisting with her claim that

'eonditions of war service contributed to my husband's death'. Specifically, she asserted that 'prior to war service my husband was a quiet type of man who did not smoke'. The matter came before the Repatriation Review Tribunal and was determined in favour of the respondent on 25 May 1983. A pension was awarded to the respondent in accordance with Division 1 of Part III of the Act to have effect on and from 18 October 1980 being

After observing the well known fact that the Act provides in subsection 47(2) and paragraph 107VH(2)(a) a 'governing provision in identical terms that imposes a

high responsibility of disproof on the applicant, the Tribunal, in a unanimous decision,

Section 107VH(2Xa) of the Act as interpreted by the Iligh Court of Australa in The Repatriation Commission v Naney Law (1981) 36 ALR p 411, creates a presumption of entitlement by providing that the Tribunal

must grant a claim unless the Repatriation Commission ean satisfy it

beyond reasonable duubt, that all of the possible relationships between war service and death or incapacity have been excluded. In other words, a relevant relationship in terms of s101 1s deemed to be present if the Commission fails to prove its absence beyond reasonable doubt ... The Tribunal is unable to accept the proposition that if nothing is known of the aetiology of a fatal disease then all the relationships have been excluded beyond reasonable doubt. Therefore the Tribunal concludes that the burden of disproof has not been discharged and therefore it is not satisfied, beyond reasonable doubt, that all the relevant considered relationships arising pursuant to s101 of the Act have been excluded.

Therefore the application to set aside the Commission's decision succeeds.

It 1s from this decision, and this approach to the Tribunal's task, that the Repatriation Commission appeals to the Court. It is worth pausing to observe once again the time-consuming and costly procedures of review provided under the Act. Including the primary decision-maker, there are no few than five levels of review as the decision progresses from the clerk to the Board, from the Board to the Commission, from the Commission to the Tribunal and, in this case, from the Tribunal to the Court. Whilst these facilities for review are doubtless protective of veterans and their families, as the course of this case discloses, they necessarily involve diversion of very considerable and expensive pubhe resources. They raise the issue of whether this is, with diminishing numbers of veterans, the most cost-effective approach to the national recognition of the

service of veterans. See Keely and Fitzgerald JJ in O'Brien v The Repatriation Commision

(unreported, 11 April 1984, 52). In the circumstances of the number of cases proceeding languidly through the numerous levels of the repatriation appeal hierarchy, causing anxiety to an inevitably diminishing and generally aged group of the population specially worthy of generous treatment by the Commonwealth, consideration should be given to

whether the Act and its administration requires reform.

In this case, the Tribunal adopted an approach which, if correct, might, without more, obviate the necessity of significant legisative or administrative change. Its approach was simple. Once eligibility by war service and relationship to the deceased were established and death proved to result from a disease of unknown aetiology, the requisite proof beyond reasonable doubt excluding a link between the fatal disease and wer service was virtually impossible. If the aetiology of the disease is unknown, that would, in normal compensation litigation, prevent the proof of entitlement, the obligation to establish which normally falls upon the claimant for a benefit. But this is not normal eompensation litigation. The Parliament has not only reversed the onus of proof. It has also expressed the onus in terms of the high standard of satisfaction beyond reasonable doubt. In default of such a satisfaction, the Tribunal's obligation under paragraph 107VH(2Xa) 1s to set aside the decision and to substitute for that decision a decision in accordance with the Aet. Obviously, if the approach adopted by the Tribunal in the present case is the correct one, the implications for repatriation cases of diseases of unknown aetiology, such as cancer, will be significant. Because the Repatriation Commission could rarely, if ever, exclude beyond reasonable doubt the possibility of causal relationships, precisely because of the lack of present medical knowlege as to the causative factors of cancer, the statutory process required by the Act would, in most eases, certainly on short evidence such as was available in the present matter, result with virtual inevitability in a failure to discharge the onus. From this conclusion the award of the pension would necessarily follow. The essential question for determination is,

therefore, whether the Tribunal's simple approach was correct, sanctioned by

The applicant contested the approach taken by the Tribunal. Appeals le from the Tribunal to the Court only on questions of law. Two questions of law were

proposed and to these the applicant sought to add a third at the hearing. Although the

respondent objected to Llus course, it is convenient to admit the additional ground of appeal which essentially restates the central question for determination. The questions of

(a) whether it was open to the Tribunal on the material before it to conclude

that 1t was not satisfied beyond reasonable doubt that there insufficient grounds for granting the claim; (b) whether the Tribunal in causing to be prepared a written statement of its

decision, comphed with the obligations imposed on it by subsection

107VK(1) of the Act; and (e) whether the Tribunal properly construed and apphed paragraph 107VH(2)(a) of the Act.

The unusual provision in the Act which deals with the approach to be taken by the Tribunal in cases such as this is to be found in section 107VH. The section accompanied the creation of the Repatriation Review Tribunal by amendments to the Act inserted by the Repatriation Acts Amendment Act 1979. In substanee, the provision

repeated the beneficial language of section 47 of the Act already applying to the Board

and the Commission. Relevantly, the section provides:

107VH (1) In a proceeding on a review, the Tribunal shall have regard to the evidence that was before the Commission or a Board when the decision the subject of the review was made...

(2) On the completion of 1ts consideration in a proceeding on a review

(a) where the decision the subject of the review was a decision refusing a claim or application for a pension - the Tribunal shall set aside the decision unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application ...

(3) Where the Tribunal sets aside a decision the subject of a review, it

shall substitute for that decision such decision as the Tribunal

By section 107VG, the Tribunal is instructed that in conducting a proceeding or the hearing of a proceeding or in making a decision in a proceeding on a review it is not bound by technicalities, legal forms or rules of evidence and it is to act according to substantial justice and the merits and all the circumstances of the case. Specifically the Tribunal 1s

107VG(b) ... without lmiting the generality of the foregoing, shall take into aceount any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter cause or circumstance, including any reason attributable to -

(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; or

(ii) an absence of, or a deficiency in, relevant official records ...

It is instructive, in considering the legislative intent as to the approach to be taken to the statutory standard of proof, to have regard to the legislative history, certain statements made in Parliament explaining the legislation, and the very fact that on its face the

legislation adopts an approach that is, to say the least, unusual.

As for the legislative history, the predecessor to paragraph 107VH(2)(a) which governed the Tribunal in the present case was subsection 47(2) of the Act. As

47(2) It shall not be necessary for the claimant, applicant or appellant to furnish proof to support his claim, application or appeal but the Commission, Board, Appeal Tribunal or Assessment Appeal Tribunal determining or deciding the claim, application or appeal shall be entitled to draw, and shall draw, from all the circumstances of the case, from the evidence furnished and from medical opinions, all reasonable inferences in favour of the claimant, applicant or appellant, and m all cases whatsoever the onus of proof shall he on the person or authority who contends that

the claim, application or appeal shall be granted or allowed to the full

This provision, already beneficial to veterans, was not, however, considered sufficiently

protective of their rights. In 1977 the Act was amended (by Act No 56, s12(1)) to insert the new section 47 in the terms in which the provision presently appears and which is

repeated, in the ease of the Tribunal, in paragraph 107VH(2)(a) of the Act.

Explaining the 1977 amendment to section 47, the Minister delivering Second Reading Speech (Mr Newman) indicated that the changes arose out of the independent inquiry mto repatriation conducted by Justice Toose as well as recommendations received from a large number of veterans' organisations. After citing

various extracts from Justice Toose's report, the Minister went on:

The Bill also sets out to deal with one of the most important, yet one of

the most controversial, provisions in the Repatriation Act, section 47. That section sets out the principles to be applied by determining authorities under the Act in the hearing and determination of claims, applications or appeals under the Act. Mr Justice Toose reported that there was before his inquiry a considerable amount of evidence that the present section 47 had caused much dissatisfaction and frustration and he concluded that the present provisions of section 47 had proved most unsatisfactory and should be amended. He went on to analyse various provisions in other countries and recommended some major amendments to section 47. The government has examined this question in great depth and is concerned that the provision should be east in its simplest possible form, while still preserving to a veteran the maximum advantage that should be allowed. The Bill provides for the repeal of the present section 47 and for the insertion in its place'of a much simpler section which will provide that determining authorities : Are not bound by technicalities, legal forms or rules of evidence; and shall act accordingly to substantial justice ... The determining authorities will be required to grant a claim or applieation or allow an appeal unless they are satisfied beyond reasonable doubt that there are insufficient grounds for granting that claim or application or allowing that appeal.

Commonwealth Parliamentary Debates (House of Representatives) 31 May

When the decision was made in 1979 to establish the Tribunal, the then

Minister for Veterans' Affairs (Mr Aderman) explained in his Second Reading Speech to Parliament the decision to apply, in respect of the Tribunal, the same concepts underlying

The amendments which have been made to this section are only necessary in order to encompass the new Tribunal within their framework and require the new Tribunal to apply the same prinerples as are applied by

the other determining authorities under the Act. The amendments do not in any way change the original concepts underlying section 47. Commonwealth Parllamentary Debates (House of Representatives) 1

What is to be inferred from this legislative material? From the Second World War a beneficial provision favouring claimants for repatriation benefits had existed in the Act. But the decision was taken by Parliament in 1977, following a major independent inquiry, to make the provision significantly more beneficial. As stated by one Member of Parliament the aim was to 'hft a great cloud' from the process of determination (See

Commonwealth Parliamentary Debates (House of Representatives) 1 June 1977, 2370).

However that may be, accordmg to the Minister it was to simplify the provision and preserve 'the maximum advantage that should be allowed! to the veteran. True it 1s, some preconditions had still to be fulfilled such as the establishment of war service and, in the death case, the relevant relationship with the deeeased former servicemen. But once these formal preconditions were established the onus was to be upon the Commonwealth authority to establish beyond reasonable doubt that there were insufficient grounds for granting the claim. In part, this beneficial reversal of the burden of proof ordinarily imposed upon those who claim benefits arose from a recognition of the inadequacy of formal medical and other records during the busy time of war. In part, it was simply a reflection of the policy of offering special and virtually unique advantages to those who had served the nation in its Defence Forees and their dependants. Clearly, where Parhament has amended and re-enacted such a deliberately generous provision, it 1s not for the courts to cireumseribe it with narrow constructions that frustrate the intention of

Parliament to effect a national _ policy of high moral content.

On the contrary, the provision should be given the generous and beneficial construction

which that policy plainly intended and justified. Such has not always been the approach of

There are two further reasons for adopting this approach. The first is to be found in the language of the Act itself. The duty in subsection 47(2) and in the equivalent provision binding the Tribunal (paragraph 107VH(2)a)) 1s east in imperative terms. The Tribunal is instructed that it 'shall set aside' an adverse decision unless it reaches the satisfaction, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application. The legislation is unusual in three respects. First, it reverses what would normally be the obligation of proof which, in our system of law, usually falls upon the person who asserts. Secondly, it requires the Commonwealth authority to prove a negative, namely that there were 'insufficient grounds for granting the claim or application'. It is often difficult to establish negative propositions. It is difficult where, as in the present case, the serviceman is dead and hence is not available to give detailed evidence about his war service and medical history. It is also difficult in the present case because of the current state of knowledge about the causes of cancers

such as the one that resulted in the death of the deceased.

The third unusual provision 1s that the legislation not merely reverses the onus and requires those disputing the claim to prove the negative. It requires them to do so beyond reasonable doubt', a provision normally restricted to the proof of criminal offences and hence a very high standard because of the role it plays, normally defensive

The second consideration 1s the state of legal authority. There has been a burgeoning jurisprudence about the approach to be taken to the beneficial provisions on the standard of proof under the Act. The High Court of Australia clarified the provision in

Law v Repatriation Commission (1981) 147 CLR 635, to which the Tribunal

-~ 14 - adverted. Specifically, the Court made it clear that section 107VH of the Act required that, in relation to any fact necessary to establish entitlement, the Tribunal (and by inference other relevant Commonwealth authorities) must be satisfied beyond reasonable doubt that the fact does not or did not exist linking the disease and war service before it could refuse an application or dismiss an appeal by a claimant. Murphy J drew attention to

the function of, and approach to be taken by, the repatriation authorities:

The role of the Commission and of the Tribunal should not be misunderstood. Their function was to decide a question of fact or of mixed fact and law. They were not, on the evidence, bound in law to find for the claimant. Even where experts differ, as here, it is open to the Tribunal to be satisfied beyond reasonable doubt that there were insufficient grounds. A conflict of testimony (expert or otherwise) does not require that a claim be upheld (any more than in a criminal trial it would require an acquittal) although often it would have that result. Nevertheless it was not enough that the Tribunal prefer the evidence (ineluding opinion evidence) which tends to disprove the claim. Even if it rejects the evidence in favour of the claim, the claimant is entitled to sueceed unless the Tribunal is satisfied beyond reasonable doubt that

Aickin J (with whose reasons Gibbs CJ, Stephen and Mason JJ agreed) pointed out that, when the matter reached the Tribunal, the opinion of the Commission was no longer material. There, the only questim was whether the Tribunal was satisfied beyond

reasonable doubt of the negative propositions that there were not sufficient grounds for

granting a pension. Specifically, Aickin J rejected the notion of a 'two-stage process:

[T]he submission that »107VH is not an 'evidentiary provision' should be rejected. I am satisfied that the operation of that section does not involve a two-stage process and that it requires that, in relation to any fact necessary to establish entitlement, the Review Tribunal must be satisfied beyond reasonable doubt that the fact does not, or did not, exist before it

ean refuse an application or dismiss an appeal by a claimant.

The reference to the rejection of a 'two-stage process! is important. Such is the typicality of imposing upon those who claim benefits the duty of establishing that claim, that it may be difficult for the legal mind to escape from its customary approach and to impose upon itself the process of thought required by the novel evidentiary provisions of the Repatriation Act. Yet, certainly before the Tribunal, this is what must be done. Once certain basie facts as to qualification for entitlement are established, paragraph 107VH(2)(a) requires, in mandatory language, that the claim is to be granted or the appeal allowed. The only disqualification from that entitlement exists when the Commonwealth authorities discharge, on the high standard of proof imposed upon them by the Parliament, the burden of establishing the negative proposition so that the Tribunal is led to a positive satisfaction that insufficient grounds for granting the claim or appeal have been established. What Aickin J was referring to in rejecting a 'two-stage process' was the notion that, in the face of the mandatory duty imposed by the legislature upon the Tribunal, the legislative history, the plain statutory policy and the duty to construe such a

provision beneficially, the claimant had first to establish a positive evidentiary link

between war service and the disease giving rise to the claim. This notion Aickin J

In the Law case, there was expert medical evidence, unchallenged as to standing or quality, that suggested a link between the cancer which caused the veteran's

death and the smoking which arose out of or was attributable to his war service. Both

~16- Murphy J and Aickin J expressed the view that in such a situation 1t was difficult to see how the Tribunal could have properly been satisfied beyond reasonable doubt that the reports favourable to the applicant were wrong. Indeed, Murphy J described the decision of the Tribunal in those circumstances as 'astonishing'. It 1s true that some of the observations of Aickin J might, in isolation, suggest the obligation on a claimant to prove that the carcinoma from which her husband died was caused by smolang which in turn had arisen out of or was attributable to his war service. In the present case there was no medical evidence favourable to the respondent widow. There was no significant case made out of war service smoking nor any medical evidence to link any such smoking and the carcinoma which led to the deceased's death. There was no evidence otherwise linking that carcinoma with war service in a positive way at all. Accordingly, in this case the issue 1s more starkly posed than in the Law case as to whether a threshold must first be reached by a claimant, which goes beyond mere proof of formal matters, such as war service and relationship to the deceased and requires at least some established, rational link between the disease and war service to be established before the claimant can succeed. Aickin J specifically denied such a 'two-stage process'. Murphy J in terms warned that the duty of the Repatriation Commission and the Tribunal was to 'implement the onus of proof section, not to frustrate 1t'. Yet a series of decisions of this Court, following the Law case, suggested that a claim had to be rejected unless there was something in the material pointing to a 'real' possibility of a link between the disease and war service. See Toohey J in Repatriation Commission v Bishop (1983) 48 ALR 461, 468; Northrop J in

Repatriation Commission v Evans (1984) 49 FCR 45, unreported judgment, 21 December

1983; Toohey J in Repatriation Commission v_ Comptom, unreported judgment, 20

February 1984. This suggestion has now been considered by the Full Court m the case of

O'Brien, the judgment in which, as I have said, was providentially handed down on the day

this appeal was heard. The Court on that occasion comprised Sweeney, Keely and Fitzgerald JJ. The Court was unanimous as to the result. The case was one of essential hypertension. There was conflicting medical evidence as to whether there was a

relationship between the applicant's wartime stress or anxiety state and this condition.

Sweeney J expressed the view that the Tribunal's decision was 'best left in

words the Act itself fuses], so that: the Tribunal should pose for itself the question whether it is satisfied beyond reasonable doubt that there are insufficient grounds for granting

Sweeney J cited the helpful observations of Windeyer J in Commonwealth v Butler (1958)

102 CLR 465, 479 where Windeyer J, dealing with attempted explanations of causation

and consequence, said that they were as 'unhappy as definitions of reasonable douot':

In the search for some grounds for isolating a particular event from the totality of cireumstances preceding a later event, various adjectives such as 'direct', 'proximate', 'decisive', 'immediate', 'effective' and 'real' have been pressed into service to qualify 'cause'. From these there is an easy

drift into such terms as 'materially contributing factor".

Sweeney J warned, rightly in my view, of the danger of just such a drift in repatriation eases such as the present. Turning to the circumstance where the aetiology of a medical

The posing of the question in the words of the Act will not necessarily produce the answer that where the aetiology of a condition from which an applicant suffers is unknown, he must succeed in his claim. Very often such an applicant will succeed, but the state of the evidence, including the state of medical evidence of a particular condition, may lead to the result that the Tribunal will conclude that, while it cannot be satisfied beyond reasonable doubt of the precise cause of the condition, tt may be so satisfied that there was no connection between war service and the

Concluding that the medieal evidence called for the applicant in that case was not untenable, inherently incredible or involving mamfest error, Sweeney J concluded that the

Tribunal had misdirected itself in the proper approach to the assessment of the evidence

The joint judgment of Keely and Fitzgerald JJ took pains to trace the course of decisions in the Court since the Law decision of the High Court of Australia. Their Honours coneluded that in Law's ease Aickin J did not intend to convey that in every ease, if at all, 'there need be something from which it is possible to infer the requisite eonnection'. Specifically, they rejected the view that in every case, whatever the

circumstances, there would be insufficient grounds for granting a claim in the absence of evidence pointing to a 'real possibility'. The judgment of the Full Court of this Court in

Law was authority for the proposition that a claim must succeed if there is such evidence and the possibility is not disproved beyond reasonabie doubt. But that 1s a different thing, as their Honours pointed out, to asserting that in the absence of such evidence a provision

such as paragraph 107VH(2Xa) requires the claim to be rejected because of insufficiency

In the case of Lennell v Repatriation Commission (1982) 1 FCR 8, (1982) 4

ALN No 29, this Court rejected a submission for the widow that in every case where a

serviceman died of a disease, the cause of which was unknown, it necessarily followed that his dependants were entitled to a pension because of the impossibility of demonstrating that the cause of the disease from which he died was not a war service

cause. But in O'Brien's case, this proposition was explained by Keely and Fitzgerald JJ.

First, notwithstanding that the cause may not be known, it might be possible for the Commonwealth authorities to demonstrate to the satisfaction of the Tribunal that the

eause was not or could not in the instant case have been connected with war service.

Secondly it was pointed out in Rose v Repatriation Commission (1982) 44 ALR 504, 514,

that it is a misreading of Lennell to take the majority judgment of Northrop and Sheppard JJ as saying that the absence of evidence necessarily means that a claimant may not

In the light of the decisions of this Court that have followed the

authoritative statement of the High Court of Australia in Law's case, the critical

statement in the recent O'Brien 'decision is to be found in the following words of Keely

and Fitzgerald JJ (at page 31 of their joint judgment):

In our opinion, a proposition that the Tribunal should be satisfied beyond reasonable doubt that there is no 'connection' between war service and incapacity or death unless there is something in the material pointing to a 'peal' possibility of sueh a connection which 1s not disproved by other

material cannot be accepted as a principle of law of general application.

Their Honours continued at page 37 of their judgment:

«. If there 1s material which tends to disprove a fact, the question arises whether the non-existence of that fact 1s the only rational conclusion on all the material, including such material, if any, as points to the possibility that the fact does exist. A 'real' possibility of the existence of that fact may be founded on something in the material which points to its existence or may arise from a lack of sufficient cogency in the material to disprove its existence or from some deficiency in the range of that material. A real possibility of the existence of a fact may be left open by material although there is nothing in the material which points to that possibility. The possibility may in such circumstances be 'speculative' but it is nonetheless 'real', not 'fanciful', in the relevance sense, for the very

reason that, on the evidence, the non-existence of the fact is not the only

If there is no material in respect of a fact, or if the material is neutral in the sense that it leaves the existence of a fact unknown, there is no rational basis for a choice between the conclusion that the fact does exist and the conelusion that it does not. The non-existence of the fact is not

Keely and Fitzgerald JJ (at p 39) then proceeded to offer a test which is relevant to the

If the material leaves the cause of death unknown, it is likely to prove extremely difficult to be satisfied that the death was not 'connected with' war service in a manner specified in the Act. However, the possibility of an exceptional case may be left open as it was in Lennell's Case in

relation to an incapacity of unknown aetiology because it 1s a judicial necessity to acknowledge such possibilities lest the law should appear to

have been laid down in a way which excludes them from consideration.

Formal matters of entitlement must be proved. But, so far as is relevant to this ease, the

result of the authorities, including the recent statement in O'Brien's case, appears to

require, at least in the case of the Tribunal in pursuance of its duty under paragraph

The starting point must be the words of the Act itself, so that the Tribunal poses the question whether it is satisfied beyond reasonable doubt that there are insufficient grounds for granting the claims (Sweeney

if it is not so satisfied, the Tribunal's clear statutory duty under paragraph 107VH(2\a) 1s to grant the claim or allow the appeal, taking care that it implements and does not frustrate the unusual and deliberately beneficial provision on onus of proof in the Act (See Murphy J in Law's ease (1981) 36 ALR 411, 414).

Where a serviceman dies of a disease, the cause of which is unknown, it does not necessarily follow that in every case his dependants are entitled to a pension because it is impossible to demonstrate that the cause from which he died was not related to war service. In a particular case it may be possible to demonstrate there was not or could not have been a war serviee connection (Northrop and Sheppard JJ in Lennell's ease).

But this last principle does not cast an onus on the claimant incompatible with the language of paragraph 107VH(2)(a) of the Act. It does not warrant a 'two stage approach! specifically rejected by Aickin J in Law's ease (see 36 ALR 411, 424. See also the Full Court of this Court in

Repatriation Commission v Byrne and others (1981) 40 ALR 296 at 303.

See also Keely and Fitzgerald JJ in O'Brien's ease, 25).

References in earler decisions of this Court suggesting the need in a claimant to establish a 'real' and not a 'fanciful' possibility of connection between war service and disease must be approached with caution. They eannot be permitted to undermine the approach to proof required by this special legislation. They find their origins in criminal cases where, as Keely and Fitzgerald JJ pointed out, positive and not negative conclusions

are typically being asserted (O'Brien's ease, 36). Furthermore, as Sweeney

J points out (ibid, 9-10) in the words of Windeyer J such language can lead to a 'easy drift' to a standard and locus of proof quite different from the

(6) It is not necessary, to deny success to the claimant, for the respondent to prove or disprove even non-essential issues of fact beyond reasonable

doubt (Keely and Fitzgerald JJ in O'Brien's ease, 45).

(7) Where, as here, the Tribunal has made a decision in favour of the claimant, the applicant, in order to succeed, must demonstrate that no Tribunal, properly directing itself as to the relevant matters of law, could have come to any other conclusion than that it was satisfied beyond reasonable doubt that war service could not have been the cause of the eancer suffered by the deceased resulting in his death (Cf the Full Court

in Byme's case, 302-3), In Law's ease, Murphy J was also at pains to stress

the difficulty of disturbing a decision made by the Tribunal, so long as it

I now tum to apply these principles, which are mferred from the legislation and the current state of authority, to the facts in the present case. It must be

conceded that, unlike many of the cases that have previously come before the Court, this

is not a case where there was a conflict of medical evidence before the Tribunal, or, indeed, in which there was at least some medical evidence favouring a causal lnk between war service and the eancer from which the deceased died. Though there was evidence of

malaria during war service this was not a ease, as was Byrne's ease, where it was

suggested by positive medical evidence called for the claimant, that the malaria or other infectious tropical disease resulting from war service had caused or precipitated the form

of eaneer from which, much later' in life, the deceased died.

Though there was a faint suggestion of a smoking habit which the respondent widow

suggested to have been initiated during war service, this was not a case, as were Law's or

Lennell's eases, in which evidence was brought of a causal hnk either directly between war-induced smoking and the fatal carcinoma or indirectly as between war-induced stress,

Is this, then, a case in which this Court must say that the only decision

which the Tribunal could reach was one adverse to the respondent? It is not for this Court

to substitute, in an appeal on a question of law brought under subsection 107VZZH(1) of the Act, its assessment of the evidence for that of the Tribunal. True it is, the Court 1s entitled to make such order as it thimks appropriate by reason of its decision (see

subsection 107VZZH(4)). It is also true that sometimes, as in O'Brien's case, the Court will

make the order that ought to have been made below. But this will only be done if an error of law is disclosed. In my view, the Court should be cautious, in procedures by way of appeal on questions of law, of itself indulging in a fresh evaluation of its own of the evidence. This is especially so in the present case, where there is a specialist Tribunal appointed for that task, a more than ample procedure for specialist administrative review

and where the evidence is in a typically abbreviated form.

Turning to the reasons for decision offered by the Tribunal, it was made plain that the case was one which entitled the respondent to make a claim in the terms of the relationships identified in section 101 of the Act as giving rise to the liability of the Commonwealth to pay a pension for service related to death. The Tribunal then adverted to paragraph 107VH(2Xa), to the interpretation of that paragraph in the High Court in Law's case and to the need to avoid the error identified in Lennell's case of inferring ari automatic entitlement to a pension simply because a serviceman died of a disease the cause of which was unknown. It 1s clear from the reasons for decision of the Tribunal that

it had in mind the critical evidence on the aetiology of carcinoma of the stomach,

so far as this was outlined in the brief material before it. The decision of the Tribunal then followed this course. Formal matters aside, section 101 of the Act, giving rise to habihty, requires a proof of relationship between death and war service. Paragraph 107VII(2)(a) of the Act, howeve, creates a presumption of entitlement, the formal matters

being proved, and obliges the Tribunal to grant the claim unless the Repatriation Commission ean satisfy it beyond reasonable doubt that there are insufficient grounds for granting it. The Tribunal actually used the words 'that all of the possible relationships between war service and death or incapacity have been excluded'. I agree with Sweeney J that it is wiser and safer for the Tribunal to adhere to the statutory language. However, I do not beheve in the present ease that this choice of words amounts to a misdirection. The Tribunal, reading the entitlement provisions of section 101 together with the

evidentiary provisions of paragraph 107VH(2)(a) concluded:

A relevant relationship in terms of section 101 is deemed to be present if

the Commission fails to prove its absence beyond reasonable doubt.

Again, that may be the effect of the statutory instruction to the Tribunal to grant the claim or allow the appeal. However, it is not expressed in this way in the statute. It would be more helpful if the Tribunal, for the proper process of 1ts own decision-making, were to

After referring to Lennell's case and the joint judgment of Northrop and Sheppard JJ, the Tribunal expressed its finding that there had not been a demonstration beyond reasonable doubt that the cause of death could not have been related to war service. The Tribunal was unable to accept the proposition that, if nothing was known of the aetiology of a fatal disease, then all of the relationships had been excluded beyond reasonable doubt by the applicant. It therefore concluded that the burden of disproof had

not been discharged, it not being satisfied beyond reasonable doubt that all of the relevant

considered relationships arising pursuant to section 101 of the Act had been excluded.

If it were necessary for the claimant to establish a 'real' as distinct from a 'speculative' connection between war service and fatal disease, in the present case the claimant would have to fail. There was simply no evidence at all, let alone a conflict of evidence, on this subject. However, such an approach is not warranted by the legislation

as enunciated in Law's case and as lately clarified in O'Brien's case. Certainly, where the

aetiology of a condition is unknown, the Tribunal must consider the medical evidence as it is placed before it. Even where the aetiology 1s unknown it may still be satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim in the particular ease. This much was made clear in Lennell's ease. It is plain that this principle was before the Tribunal when it reached its conclusion in the present ease. It would be a misunderstanding of the respective functions of the Court and of the Tribunal under the Act to say that, although the Tribunal has properly mstructed itself, the Court should interfere with its decision in an appeal limited to a point of law, when it has expressed itself not satisfied beyond reasonable doubt and when the burden of establishing that satisfaction lay upon the respondent. The respondent may eomplain about the diffieulty of establishing a negative proposition and especially on the standard of proof required by

paragraph 107VH(2)(a). This Court in O'Brien has adverted to the difficulty of disproving

facts, particularly on the criminal onus of proof. But the question for me is whether, following the evidence in the ease, the non-existence of the fact (of connection between war service and the fatal disease) is the only rational conelusion on all the material so that the Tribunal had no option but to be satisfied beyond reasonable doubt that there were insufficient grounds for upholding the claim and allowing the appeal. Where death occurs as a result of a disease of unknown aetiology, its connection with war service may be disproved by general evidence. That is a matter for the satisfaction of the Tribunal. But there is a crucial distinction between the Tribunal's being satisfied or not satisfied and this Court's interfering, in an appeal such as this, where the Tribunal expresses itself as not satisfied that all of the relationships, presumably the relevant relationships, have

Tf this case had been heard without the benefit of the decision in O'Brien's

ease, I should probably have felt obliged to remit the matter to the Tribunal for

reconsideration. Until the O'Brien decision was delivered, the formulae being variously

expressed in eases where death arose from a disease of unknown aetiology required reference to what was often in fact a two-stage process, though denied in terms as being such. It was suggested that the link must be established according to a 'rational possibility' rather than 'fanciful' or 'fantastic' possibilities. The Court had to see whether there was 'any material' before the Tribunal which pointed to a possibility 'real as against fanciful' of a connection with war service. It was said to be necessary to establish that there was something pointing to a 'real possibility' of an element connecting the war service with the disease. The formulae varied but the effect, in my view, was to resuscitate precisely

the two-stage process that Aickin J denied and for which the Act gave no warrant.

'Since O'Brien's ease, I take this approach to be unnecessary. True it 1s the

formal relationships required by section 101 of the Act must be proved. But there was no dispute as to these in the present case. Equally truly, in eases of diseases of unknown aetiology, the claimant is not entitled, as of right, automatically to succeed. It is still a matter for the satisfaction of the Tribunal at the end of the evidence in every case. But equally truly, there being medical evidence pointing only in one direction, it cannot be said that the Repatriation Commission is entitled as of right to succeed. It bears the onus of proof and it is the heavy and unusual onus of establishing a negative proposition and that beyond reasonable doubt. In the present case, the Tribunal came to the conclusion that that onus had not been established. I do not discern in its reasons any error of law, at

least as the law has been clarified subsequently in O'Brien's ease. The Tribunal adverted to

the then prinezpal decisio on the relevant sections of the Act. I do not believe it can be said that no tribunal, propertly instructed, could have come to the conclusion it reached but could only have come to the eonelusion argued for by the applicant. The Court should

See Toohey J in Repatriation Commission v Bishop (1983) 40 FCR 306, (1983) 5 ALN No 205, p 16. In examining the Tribunal's reasons for decision, whilst the Court will make sure that the statutory requirements have been comphed with, it should not look over closely at the language used by the Tribunal but rather examine its decision as a whole

concentrating on matters of substance rather than form. Cf Sheppard J 1n Repatriation

Commission v Bugg (1983) 40 FCR 306, (1983) 5 ALN No 264. The Court will keep in mind

the fact that the Tribunal is not bound by technicalities of the law of evidence (see section 107VG of the Act). Due regard should be given to the fact that the Tribunal 1s both a specialist body and one under the pressure of a heavy workload without all the facilities of the adversary system and the time for reflection, speculation and detailed

reasoned decision-making such as is appropriate in a court.

The applicant, whilst conceding that the Court should not be overly concerned with the use of language by administrative tribunals, where the meaning and effect of their decision is clear, complained that the Tribunal had erred in law im failing to comply with the obligations imposed upon it by subsection 107VK(1) of the Act. That

subsection, as at the relevant time following amendments to the Act in 1982, provided:

107VK(1) Where, in a proceeding before the Tribunal, the Tribunal makes a decision, the Tribunal shall - (a) prepare a written statement of the decision; (b) either give reasons for the decision orally or include a statement of the reasons for the decision in the statement of the decision;

(e) file the statement of the decision with the records of the case; and

(d) serve a copy of the statement of the decision, either personally or

(2) Where, in a proceeding before the Tribunal, the Tribunal gives reasons for a decision orally, a relevant person may, within 28 days after the day on which a copy of the statement of the decision is served on the relevant person, request the Tribunal to furnish to the relevant person a written statement of the reasons for the decision and the Tribunal shall, within 28 days after receiving the request, serve such a statement, either personally or by post, on

(3) A written statement of the reasons for a decision of the Tribunal shall include any findings on material questions of fact and shall refer to the evidence or other material on which those findings were based.

(4) In this section, relevant person', in relation to a proceeding, means -

(a) the applicant or a person authorized by the applicant; or

It was common ground that this duty fell upon the Tribunal in the present matter. The language of subsection 107VK(1) reinforced the earlier equivalent provision and brought the obligation upon the Tribunal into line with a now fairly common obligation in Federal legislation on administrative law. No sanction for non-compliance with the subsection is provided for in the Act. The importance of the facility of reasons has been stressed by the Court both generally (see Re Palmer and Minister for the Capital Territory (1978) 1 ALD 183) and in the context of repatriation appeals (see eg Sheppard J in Bugg's case, above,

and Keely and Fitzgerald JJ in O'Brien's case, above, 10).

In the present ease, the applicant sought to reinforce its complaint about the lack of requisite finding by referring to a line of common law authorities which suggests that where the sole material before a tribunal points m one way, the tribunal should give effect to uncontradicted evidence or at the least explain, by circumstances appearing from the evidence itself or by the fact that the witness is not believed, why it has rejected the testimony. See Holman v Holman (1964) 81 WN (Part 1) (NSW) 375, esp

378; Hardy v Gillette [1976] VR 392, 396; Read v Nerey Nominees Pty Limited (1979) VR

47, 52. It was suggested that one possible exception to this common law principle arose where the evidence, though uncontradicted, was so inherently improbable or incredible or unreasonable that no reasonable man could accept it. Hardy v Gillette was itself a criminal prosecution in which a magistrate had dismissed an information concerning eertain cannabis offences saying, in the face of uncontradicted evidence of an analyst, that he eould not be satisfied about the nature of the substance in question. Anderson J in

the Supreme Court of Victoria ordered that the magistrate's orders of dismissal should be quashed and the informations reheard. The applicant contended that in the present case

the only medical evidence before the Tribunal concluded that there was no connection between the war service and the terminal cancer, that such medical evidence was not improbable, incredible or unreasonable, that it had not been doubted nor expressed to be disbeheved, that it had not been contested by competing evidence that might have been preferred by the Tribunal and that accordingly it should have been accepted by the Tribunal or, at the least, the reasons for its rejection should have been specifieally stated in accordance with the Holman principle. Indeed, the applicant argued that the failure to state reasons for the rejection of this uncontested medical evidence ilustrated the vice of the failure of the Tribunal in the present case to fulfil the obligations imposed upon it

For a number of reasons, these submissions are rejected. First, there is a erueial distinction, adverted to in the jomt judgment of Keely and Fitzgerald JJ in

O'Brien's ease, between the tender of evidence in support of the proof of a matter

required to be established (on the one hand) and the absence of proof satisfying the Tribunal beyond reasonable doubt of a negative proposition (on the other). In the present case, it can be conceded that carcinoma of the stomach 1s the most common neoplasm of the gastro intestinal tract; that nothing is known of its aetiology; that there is a striking hereditary influence in some families; and that the deceased was in the usual cancer age group. It ean also be conceded that the time of lapse between war service and the occurrence of the malignancy made the causal relationship between the fatal disease and the war service unlikely. The statement in the unsigned medical document that the cause of death 'was not due to any occurrence or attributed to or aggravated by war service' was a statement on the ultimate issue which the Tribunal was not bound to accept for it had to make its own determination on that issue. But even accepting the matters upon which the medical testimony was competent to offer its opinion that was not, because of the unusual provisions of paragraph 107VH(2)(a) of the Act, an end of the matter. It still remained for the applicant to satisfy the Tribunal beyond reasonable doubt, and in the face of the admittedly unlnown aetiology of the disease, that there was no connection to the war

In these circumstances, leaving aside the expression of opinion on the ultimate issue which was a matter reserved to the Tribunal, there was no place for the operation of the Holman principle. It was simply not, in the peculiar legislative setting of this case, determinative or conclusive of the Tribunal's satisfaction. That satisfaction, by the terms of the statute, permitted the Tribunal to range beyond the evidence actually proved and to indulge in speculation, admittedly rational speculation, about the possible links to war service that had not been positively excluded by the evidence. In any case, this Tribunal is not bound by technicalities, legal forms or rules of evidence. Its charter is to act 'according to substantial justice and the merits and all the cireumstances of the

Whilst it is true that there are unsatisfactory features in the reasons for deeision of the Tribunal, f am not inclined to go over those reasons, at leisure, with a fine tooth comb, bearing in mind the considerations stated above applicable in the case of administrative tribunals such as this. The duty of the Tribunal 1s to expose 'a satisfactory

process of reasoning which led' to 1ts conclusion (Cf Keely and Fitzgerald JJ in O'Brien's

ease, p 11). In the same decision it is suggested that 'at least when a claim to a pension is rejected', failure to comply adequately with the obligation to give reasons may itself constitute an error of law. I would not myself draw a distinction between cases where the claim to a pension is rejected or accepted. The Court, like the statute, must be even-handed in this regard. The beneficial provision as to the statement of reasons, reference to evidence and finding of material facts is an important reform that must be upheld by decisions of the Court. But in the present case it is my view that the statutory provisions have been adequately complied with, at least to the extent that no appealable error has been established. Certainly, the processes of the reasoning of the Tribunal, right or wrong, are perfectly plain. The applicant apparently wished for more detailed comment upon, criticism of or distinction from the evidence of its medical expert. But that was not necessary in the circumstances brought about by the unusual obligation on the applicant to prove a negative proposition imposed by paragraph 107VH(2)(a) of the Act. The Tribunal, comprising experienced members some at least of whom must by statute be themselves veterans, was entitled to bring it common sense and experience and at least general knowledge from other cases to bear upon the determination of the instant appeal. Though it would certainly have been open, on the evidence, for the Tribunal to have been satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim, it was equally open to it to conclude that the applicant had failed to satisfy 1t on the requisite standard that there were insufficient grounds for granting the claim and allowing the appeal. In the latter cireumstanee, the Tribunal was obliged to follow the statutory instruetion and to grant the claim and allow the appeal. This it did. I do not believe that

this Court should interefere, limited as it 1s to a review function on a question of law.

If it 1s complained that the result of this conclusion about the Act is that a case is determined in favour of the widow where there was no positive medical evidence at all to support a link between the cause of death and war service, the answers may be two. Indeed, they have already been foreshadowed. Each concerns an important matter of publie policy. The first is that the Parliament, by a deliberate process of successive

legislative changes, described above, has adopted a peculiar and, so far as ] am aware,

unique approach to the establishment of entitlements to benefits in cases such as this. Formal matters being proved, a very heavy burden 1s then placed upon the Commonwealth authorities to disqualify the claimant from a presumed entitlement to succeed. At least at the level of the Tribunal there is an instruction from the legislature to uphold the claim, unless the Commonwealth authority ean satisfy the Tribunal beyond reasonable doubt that there are insufficient grounds for granting the claim. In a ease of, say, cosmetic surgery having no conceivable connection with war service, the requisite disproof will be perfectly possible. In the case of diseases of unknown aetiology, the Act might be thought by the Commonwealth authorities to impose upon them a burden that will usually be extremely difficult to discharge. But the answer to that complaint is that the Parliament has adopted its course deliberately following careful independent review and it is a course

that the courts should interpret beneficially, as the Parliament intended.

The second reason of public pohey follows from this first. The veterans and their dependants are an ever-diminishing number of persons in Australia, especially deserving of generous treatment within the law. The costly, time-consuming procedures of appeals and reviews have been referred to a number of times in this Court. If the Act is administered, faithfully to the letter and spirit of the intent evidenced in paragraph 107VH(2)(a) of the Act, a number of claims will be met which could never have been

established had the ordinary rules as to the burden and standard of proof obtained.

But that may simply mean that public funds are expended upon benefits for veterans and their dependants rather than upon the costly and time-consuming administrative and legal procedures about causation evidenced in so many of these claims before the High Court, this Court, the Administrative Appeals Tribunal and the repatriation bodies. It is the duty of those bodies, as of the Court, to pay heed to the language and intention of paragraph

107VH(2Xa). It has not been shown that the Tribunal failed to do so in the present case.

1. The appeal is dismissed and the decision of the Tribunal is affirmed.

2. The applicant shall pay to the respondent her costs of and in connection

I certify that this and the thirty two preceding pages are a true copy of the Reasons for Judgment herein of his