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]).