Repatriation Commission v Williams

The Tribunal's decision 9 On the issue of the veteran's smoking the Tribunal said: "There is no evidence as to how much the veteran smoked after the reduction in his habit in the 1970s, which is an element under SoP factor 5(e) that is, 'smoking at least five cigarettes per day … for a period of at least one year immediately before the clinical onset of ischaemic heart disease', as … by the applicant. The Tribunal concludes that on the evidence, the veteran changed his smoking habit in about 1976/76 from two packs per day to at most a minimal amount which has not been defined." 10 The Tribunal then stated that, in the light of that finding, cl 5(f)(iii) was "the only viable alternative available" and "for this criteria to be considered, the clinical onset of ischaemic heart disease must have occurred no later than about 1995/96". After reviewing the medical evidence the Tribunal said: "It having been conceded that the veteran's smoking habit was related to service, and the Tribunal having accepting the evidence that he ceased or reduced his smoking habit in the mid 1970s , the issue in contention is whether the clinical onset of ischaemic heart disease occurred prior to the mid 1990s and if the requirements of Factor 5(f)(iii) are to be met. Pursuant to s 120(6) of the Act there is no onus of proof on either party on any matter relevant to this claim." 11 After further discussion of the evidence the Tribunal said that it was "…satisfied beyond reasonable doubt that there is no credible evidence or other material relating to symptoms applicable to the clinical onset of … 1995/96 which would be necessary in order to meet factor 5(f)(iii). That is, there is no sufficient ground for determining that the death of Mr Williams was war-caused."

Decision of the primary judge 12 Before his Honour it was apparently common ground that the Tribunal was wrong in discarding the possibility of Mrs Williams making a case under cl 5(e) by taking the view that reduction of consumption to a "minimal" level was the equivalent of a cessation of smoking. Before his Honour the Commission accepted the evidence established the relevance of the cl 5(e) factor but argued that this was not satisfied because the veteran's consumption did not reach the rate of five cigarettes per day after 1975/1976. His Honour held it to be erroneous in point of law to treat a reduction in cigarette smoking, even a reduction to "a minimal level", as being a cessation of smoking. His Honour then turned to the construction issue of cl 5(e) and said: "[35] Factor 5(e) makes no reference to an average [emphasis in original] of five cigarettes per daybut the authors of the SoP must have intended to refer to an average figure. They could hardly have intended the entitlement be lost simply because the veteran's consumption occasionally fell below five cigarettes per day: for example during a period of illness. This view of the matter is confirmed by the definition of 'pack years of cigarettes' or the equivalent thereof in other tobacco products, in clause 8 of the SoP. It will be recalled that the definition offers the alternatives of 20 cigarettes per day for a period of one calendar year or '7,300 cigarettes'. [36] If an average is permissible in relation to one year, it is difficult to see why it would not have been intended to be permissible to take into account, and apply an average to, the whole of the veteran's cigarette consumption. Factor (f)(ii) and (iii) demonstrate acceptance of the view that long past smoking can have a cause or connection with the onset of ischaemic heart disease." [37] If the Commission's contention is accepted, long-past smoking will often be disregarded. By way of hypothetical example, take the case of a veteran who commenced to smoke heavily during the Second World War and thereafter smoked two packs a day for 50 years. Because of health worries, the veteran then dropped his or her consumption to one or two cigarettes a day. Two years later, ischaemic heart disease was diagnosed. If, two years before clinical onset, the veteran had ceased smoking entirely, the veteran would have been covered by factor (f). But the veteran did not cease smoking, so that factor is inapplicable. Yet, on the Commission's argument, factor 5(e) is also inapplicable, the veteran did not smoke (or even average) five cigarettes per day over the twelve months immediately preceding clinical onset. The veteran's war-caused 50 year heavy smoking history would be ignored." 13 His Honour concluded that the SoP in question required that if the material placed before the Tribunal raises a reasonable hypothesis that the death of a veteran was connected with a smoking habit, formed during a period of war service and continuing until death, the Tribunal must determine whether it was satisfied beyond reasonable doubt that "the veteran's cigarette consumption over the whole of his or her smoking life (being a period of at least one year) did not average at least five cigarettes per day". His Honour viewed the Tribunal's misconstruction of cl 5(e) as an error of law. 14 His Honour then analysed the Tribunal's reasoning in the light of the steps laid down in Repatriation Commission v Deledio (1998) 83 FCR 82: "[42] First, the Tribunal had to consider all the material before it, including the evidence of Mrs Williams, Mr Bennett and the various medical practitioners, and determine whether that material pointed to a hypothesis linking the death of Mr Williams to his war-service. Although this was a matter for the Tribunal to determine, it was obviously open to the Tribunal to find a hypothesis that Mr Williams commenced to smoke during his period of war service and continued to smoke for the remainder of his life (although at a reduced rate after 1975/76), and that the condition that caused his death was a result of that smoking. It is to be noted that, at this stage of its consideration of the case, the Tribunal should not have been concerned with the factual correctness of that hypothesis. [43] If the Tribunal did accept the existence of such an hypothesis, its next task was to ascertain whether there was in force a relevant SoP. It is common ground that any such instrument would have been one concerning ischaemic heart disease, and that there was such an instrument, although there is now an issue as to whether the relevant instrument was SoP 80 of 1998 or SoP 38 of 1999. At this stage of its consideration, the Tribunal was obliged to identify, and turn to, the relevant SoP. [44] The third step for the Tribunal was to determine whether the hypothesis fitted the template provided by the relevant SoP. Assuming for present purposes that the Tribunal had decided that SoP 80 of 1998 was available for use in this case, and that the hypothesis suggested by the material included the element that Mr Williams did not cease his smoking habit prior to clinical onset of his ischaemic heart disease - as, for example, because he continued to smoke until his death - the Tribunal was obliged to test that hypothesis against factor 5(e) of SoP 80 of 1998. If the Tribunal had interpreted factor 5(e) in the manner I have suggested, it would obviously have decided the hypothesis fitted the template and proceeded to the final stage. [45] In the final stage, the Tribunal would have had to ask itself whether it was satisfied, beyond reasonable doubt, that Mr Williams' death was not war-caused; for example, because it was satisfied beyond reasonable doubt that one or more essential elements of the adopted hypothesis were not true in fact. It must be emphasised it was only at this stage, and not before then, that the Tribunal was entitled to make determinations of fact. [46] The Tribunal did not follow the course 1 have set out. 1 think Mr Vincent is correct in describing as "premature" the Tribunal's finding concerning the date when Mr Williams stopped smoking. The point may seem pedantic, but it is not. At any early stage of its reasoning, the Tribunal will tend to be thinking in terms of the balance of probabilities. The Tribunal appears to have adopted that standard in the present case, in relation to the finding (in effect) that Mr Williams ceased to smoke in1975/76. If a finding of fact is delayed until the final stage of the inquiry, the Tribunal is likely to be conscious of the need to be satisfied, beyond reasonable doubt, that an element of the hypothesis (such as continuation of smoking until death) is not true in fact. [47] The Tribunal's failure to follow the course of inquiry required by the Act, and which is clearly described in Deledio, was an additional error of law. Even on the basis that SoP 80 of 1998 was the only Statement of Principles available for use in this case, it is apparent the Tribunal's decision must be set aside." 15 His Honour then turned to the separate issue arising from the introduction of a later SoP, that is SoP No 38 of 1999, dealing with ischaemic heart disease. SoP No 38 of 1999 made on 27 April 1999, had revoked No 80 of 1998. Notwithstanding the acceptance by both parties before the Tribunal that only No 80 of 1998 was applicable, counsel for Mrs Williams put an alternative argument to his Honour that she was entitled to rely on No 38 of 1999. 16 One of the factors in No 38 of 1999 was in cl 5(f)(ii) where "smoking has not ceased prior to the clinical onset of ischaemic heart disease", one of the factors being "(ii) smoking at least one pack a year of cigarettes or the equivalent thereof, in other tobacco products, before the clinical onset of ischaemic heart disease." 17 As his Honour pointed out, in contrast to that in the earlier SoP this factor contained no limitation as to the period of smoking other than it must be before the clinical onset of ischaemic heart disease. It was apparent why the appellant would wish to rely upon that instrument at any new hearing undertaken by the Tribunal. His Honour followed the decision of Stone J at first instance in Gorton and found that Mrs Williams would be entitled to put a case based on SoP No 38 of 1999. The relevant law was that pertaining at the date of the hearing, subject to the possibility of an accrued right (at [66]).

Conclusion on the appeal 18 For the reasons already given in Gorton, in my opinion his Honour was correct in his conclusion as to the availability of the later SoP. 19 As to the two issues which arose in relation to cl 5(e) of SoP No 80 of 1998, it was, as has been noted, common ground before his Honour that there was no basis for any finding that the veteran had ceased smoking in the mid 1970s. It was then not for Mrs Williams to prove that the veteran in fact smoked five cigarettes per day (whatever meaning be given to that expression) until his death. Given her own evidence as to the possibility of his smoking outside the home and the positive, unchallenged evidence of Mr Bennett that the veteran did in fact smoke outside the home up to at least six weeks before his death, the material plainly raised a hypothesis of continued smoking. I think the Tribunal fell into the error of requiring the claimant to prove the existence of the facts which founded the hypothesis advanced. 20 However, I do not agree with his Honour's construction as to the expression "at least five cigarettes per day". The expression "for a period of at least one year immediately before the clinical onset" fixes a definite period of one year concluding at a fixed time. It is not legitimate to search back over the whole of the veteran's smoking life. Moreover "at least five cigarettes per day" means just that - not an average, whether over the one year period or the whole smoking life. Whether smoking less than five cigarettes a day on the odd occasion might be accommodated under the de minimis rule of construction is a possibility, but it is not necessary to express any concluded view. 21 Nevertheless, for the reasons given on other issues, the appeal should be dismissed with costs.

I certify that the preceding twenty one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

EMMETT J: 22 I have read the reasons of Heerey J in draft. For the reasons given by Allsop J in Repatriation Commission v Gorton [2001] FCA 1194,I agree that the relevant Statement of Principles was No 38 of 1999. I agree with the construction that Heerey J gives to that Statement of Principles and with the orders proposed by his Honour.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

ALLSOP J: 23 I have had the advantage of reading the reasons of Heerey J in draft. 24 There is no need for me to repeat what I said in Repatriation Commission v Gorton [2001] FCA 1194 about the decision of the Full Court of this Court in Repatriation Commission v Keeley (2000) 98 FCR 108. For the reasons I gave in Gorton in my view the relevant SoPs for the Administrative Appeals Tribunal were SoP No 38 of 1999 and (in the sequential manner to which I referred in Gorton) SoP No 90 of 1998. 25 I otherwise agree with the reasons of Heerey J and with the orders which he proposes. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Counsel for the Applicant: Mr P Hanks QC with Ms R Henderson

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr M Smith with Mr M Vincent