Tate v Repatriation Commission

Federal Court of Australia|2003-10-24|Before: Cooper J

background 1 The applicant is the widow of George Hamilton Albert Tate. Mr Tate was born on 9 May 1909 and died on 26 September 1979 from prostate cancer. He served in the Australian Army from 2 December 1941 to 8 January 1946. His service was operational service for the purposes of the Veterans' Entitlements Act 1986 (Cth) ('the Act'). The applicant lodged an application for a war widow's pension on 10 August 1994, claiming that the death of her husband was war caused within s 8 of the Act. The claim was rejected on 30 March 1995. The rejection decision was affirmed by the Veterans' Review Board on 13 June 1997 and by the Administrative Appeals Tribunal ('the AAT') on 17 January 2003. 2 The applicant has applied to this Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act').

The case before the aat 3 The applicant contended that there existed an hypothesis linking the veteran's condition (malignant neoplasm of the prostate) with his war service. That hypothesis was that Mr Tate increased his pre-service intake of animal fat by more than forty per cent to at least seventy grams per day as a result of his Army service, maintaining that level of consumption for a period of twenty years prior to the onset of prostate cancer. She further contended that the hypothesis was a reasonable one which the respondent failed to disprove beyond a reasonable doubt as required by s 120 of the Act.

the evidence before the aat 4 Evidence was given before the AAT by Margaret Tate, the applicant's daughter, and Dr Ruth English AO, a specialist nutrition consultant. Dr English prepared written reports based upon a dietary questionnaire prepared by Ms Tate detailing her father's post-war fat consumption. 5 Dr English, on the basis of the questionnaire prepared by Ms Tate, formed the view that the daily intake of food suggested in it would have theoretically resulted in a weekly gain of 0.75 kilograms amounting to a gain of thirty-nine kilograms per year. However, during the period 1945 - 1962, Mr Tate lost five kilograms. Dr English therefore concluded that the questionnaire should be classified as invalid. 6 The evidence of Ms Tate to the AAT was summarised in its reasons, as follows: '13. Margaret Clodagh Tate gave oral evidence before the Tribunal. Ms Tate is the only child of the applicant and the veteran. In September 2001, Ms Tate completed a dietary survey in relation to the veteran's post-war fat consumption during the period 1946 - 1964 (Exhibit 2). She stated in her evidence that the veteran regularly consumed large quantities of meat and diary [sic] products, including cooked breakfasts, and that her father used to consume milk in order to alleviate pain he was suffering from a duodenal ulcer. She stated that both her and her mother also regularly consumed meat, including cooked breakfasts, but that they had smaller servings. They also consumed mashed potatoes with their dinner, or added butter to other cooked potatoes and vegetables. 14. Ms Tate stated that despite the large amount of fat the family was consuming, only her mother gained weight. She stated that she had never gained weight, and had only commenced to gain weight in her early 50s when she started taking steroids for medical purposes. She stated that her father had also remained the same weight. She thought that the reason for this was that both her and her father had been very active people. She explained that until approximately 1970, the family didn't have a car, and they used to walk places or use public transport. She stated that after her father got the car and retired, he slowed down and wasn't as active as he had been - although he did continue to eat large meals at this time. ... 16. Ms Tate stated that throughout the period 1946 to 1964, she regularly ate breakfast and dinner with the veteran. She explained that her mother would pack her and her father's lunches, including a snack for morning or afternoon tea. After she left school, she stated she would sometimes help her mother with the cooking on weekends or, occasionally, she would cook a meal for the family. She said that her mother had been primarily responsible for preparing the family's meals and doing the grocery shopping. 17. Ms Tate stated that her father had been a heavy smoker, and that he had smoked throughout the period 1946 to 1964. 18. In cross-examination, the findings of Dr English, that it would have been physiologically impossible for the veteran to have consumed the food set out in her dietary questionnaire without gaining weight, were put to Ms Tate. Ms Tate did not believe that her recollection of the veteran's food consumption had been affected by the passage of over sixty years, although she admitted that she could not remember every single detail of every day during the period 1946 to 1964.' 7 The AAT set out in its reasons in some detail the evidence of Dr English. For present purposes, it is sufficient to set out the following: '25. On the basis of these calculations, Dr English opined that the applicant would have consumed an excess of 39,228 kilojoules per week, resulting in a weight gain of 0.75 grams per week or 39 kilograms per year. As the veteran had lost weight over the relevant period, the doctor opined that the dietary questionnaire completed by the veteran's daughter was not a valid recall of the veteran's diet over the period 1946 to 1964. 26. Dr English stated that, whilst it was possible for a person's estimated energy requirements to vary within 10% of the standard, she did not believe that it was possible for a person to be able to process energy at such an extreme degree as was suggested in this case. Dr English stated that the 68% variation on the international standard suggested in this case was beyond the realms of possibility. 27. Again using criteria and assumptions highly favourable to the applicant, Dr English calculated that the veteran could have been consuming a total of 151 grams of animal fat per day as part of his estimated energy requirement of 13,971 kilojoules. That level of animal fat consumption would represent a 22.7% increase in pre-service levels of animal fat consumption. The Tribunal notes that the relevant SoP requires a 40% increase in the pre-service levels of animal fat consumption. 28. Dr English conceded in cross-examination that she had not been able to examine the veteran and therefore could not accurately state his energy expenditure levels. However, she stated that she had endeavoured to use more favourable figures when determining the veteran's estimated energy requirements, and had calculated his requirements using internationally recognised standards and procedures. 29. At the applicant's request, Dr English recalculated the veteran's energy requirements based on a weight of 66 kilograms (instead of the 62.5 utilised earlier). Dr English allowed a 10% increase in metabolic rate on the basis that the veteran had been a heavy smoker, and allowed the 10% variation as discussed in paragraph 26 above. On these calculations the veteran's estimated energy requirement would have been 17,332.15 kilojoules. The level of animal fat that could have been consumed to meet that energy requirement would have been approximately 187 grams a day, exceeding the required 40% post-service increase in animal fat consumption. 30. Dr English was asked to undertake another calculation during which she was asked to exclude the 10% increase of metabolic rate due to smoking. On this basis, Mr Tate's energy requirement was calculated as 15,756.50 kilojoules, of which his intake of animal fat would have represented a 39.6% increase from the pre-service level of animal fat consumption. 31. Dr English expressed the view that the veteran may have been more appropriately classified as having undertaken a moderate level of activity, rather than the high level upon which her calculations were based. She explained that she used the higher level for the benefit of the applicant, given that it was impossible to examine the veteran. It was suggested to Dr English that the veteran fidgeted a lot and that this may have expended quite a lot of energy. Although she conceded that fidgeting is a form of energy consumption, she considered it to be a very low level of activity and, given that she had based her calculations on the highest level of activity, his fidgeting would not have altered her findings in this case.' 8 The applicant's submission as to how the AAT should treat the evidence before it was recorded in the AAT's reasons: '36. The applicant contends that the respondent has not shown, beyond reasonable doubt, that the veteran's death was not war-caused. The applicant argues that the process adopted by Dr English for the calculation of Mr Tate's energy requirements is not exact or precise. There are a number of variables which could impact on a person's likely energy requirements, including whether they smoke and their level of activity. The applicant notes that there is disagreement amongst nutritionists as to how smoking would affect a person's basal metabolic rate and how this should be factored into any calculation of the person's estimated energy requirements. The applicant submits that, although Dr English considered it to be beyond the realms of possibility that the veteran had been consuming the amount of food outlined in the questionnaire without gaining weight, she did not consider that that was an impossibility if, when calculating the veteran's energy requirements, his average weight was taken to have been 66 kilograms rather than 62.5 kilograms. 37. For these reasons, the applicant contends that Dr English's evidence is not of superior reliability to that of the veteran's daughter. 38. The applicant concedes that the accuracy of Ms Tate's dietary questionnaire may have been affected by the passage of time, and contends that it has long been accepted that this form of dietary survey is inherently unreliable: see Re Brown and Repatriation Commission [2000] AATA 708 at pars 61-62. However, despite the fact that it is flawed, the dietary questionnaire, along with the oral evidence of Ms Tate, forms the basis of the evidence before the Tribunal and upon which it must make its decision (see Brown at par 56).' (Original emphasis)

the FINDINGS OF the aat 9 The AAT made the following findings: '39. The Tribunal is satisfied that the evidence of Dr English is reliable. Whilst the doctor cannot state with precision the dietary energy requirements of the late veteran, she is able to refer to a body of scientific knowledge to allow her to make assumptions as to the likely energy needs of the veteran. In this case, her calculations (which have utilised assumptions that are highly favourable to the applicant) have identified the inherent unreliability of the dietary questionnaire completed by the applicant's daughter, Ms Tate. Whilst the Tribunal accepts Ms Tate as a witness of truth, the questionnaire completed by her clearly contains inaccurate statements, no doubt brought about by the passage of time and possibly by the lack of professional assistance she received when completing the survey. 40. However, it is the questionnaire completed by ms Tate, along with her oral evidence, which forms the factual foundation upon which the hypothesis put forward by the applicant is based. The Tribunal is satisfied, beyond reasonable doubt, that the evidence of Dr English regarding the energy analysis conducted on Mrs Tate's questionnaire is of superior reliability. That evidence establishes that it is beyond the realms of possibility that the veteran could have consumed the amount of food stated in the questionnaire without gaining weight. The Tribunal is satisfied beyond reasonable doubt of the accuracy of this fact. 41. Accordingly, the Tribunal is satisfied that the respondent has proved, beyond reasonable doubt, a fact which is inconsistent with the reasonable hypothesis raised by the applicant, and has, by implication, demonstrated that the "factual foundation upon which the hypothesis ... operate[s] does not exist" (Bushell at pp 416 and 427).' (Original emphasis) In consequence the AAT affirmed the decision under review.

the grounds of appeal to this court 10 By her amended notice of appeal the applicant relies upon the following grounds as raising reviewable legal error entitling her to have the decision of the AAT set aside and to have the matter remitted for re-hearing: '4. GROUNDS 1(a) the hypothesis advanced was, relevantly, as follows: (i) Prostate cancer can be caused by animal fat consumption increasing by at least 40 percent and to at least 70 grams per day for at least 20 years before the clinical onset of the disease; (ii) the veteran consumed animal fat in the amount and over the period specified in (i). (b) In making findings for the purposes of ss 120(1) and (3) of the Act the Tribunal erred by failing to consider whether the facts supporting the raised hypothesis were disproved beyond reasonable doubt or any facts inconsistent with the hypothesis were proved beyond reasonable doubt. 2. The Tribunal failed to provide any reasons as for its finding that a fact had been proved beyond reasonable doubt which was inconsistent with the reasonable hypothesis raised by the Applicant.' (Original emphasis)

the submissions in this court 11 The applicant submitted that the hypothesis advanced before the AAT was: (a) prostate cancer can be caused by animal fat increasing at least forty per cent and to at least seventy grams per day for at least twenty years before the clinical onset of the disease; and (b) Mr Tate consumed animal fat in the amount and over the specified period. She submitted it is a reasonable hypothesis because it satisfies Statement of Principle ('SoP') No 84 of 1999 concerning malignant neoplasm of the prostate determined under s 196B of the Act. 12 The applicant submitted that the AAT failed to consider this hypothesis and only considered an hypothesis based on the dietary questionnaire prepared by Ms Tate. Having done that, it was submitted the AAT failed to determine whether it was satisfied beyond reasonable doubt whether Mr Tate's animal fat consumption increased by at least forty per cent and at least seventy grams per day for at least twenty years before the clinical onset of the prostate cancer. All the AAT did, it was submitted, was to be satisfied that the consumption of animal fats by Mr Tate had not increased to the levels in the daughter's questionnaire. The applicant contended that such a conclusion did not necessarily mean that Mr Tate's consumption of animal fat had not increased by at least forty per cent and to at least seventy grams per day for at least twenty years before the clinical onset of the disease. 13 The applicant submitted that the error of law lay in the AAT including in the hypothesis, as an element, that Mr Tate consumed the amount of food stated in the dietary questionnaire prepared by his daughter; or that the AAT failed understand, or make necessary findings in relation to the hypothesis in fact advanced. 14 Finally, the applicant submitted the AAT was required to make findings of fact in relation to the calculations of Dr English set out in paragraphs [29] and [30] of the AAT's reasons and it failed to do so. Those calculations, it was submitted, gave results which exceeded the requirements of the SoP in relation to animal fat consumption or were so close to those requirements that the difference was de minimus. 15 With respect to the allegation that insufficient reasons were given, the applicant submitted that the AAT failed to identify any fact which was inconsistent with the hypothesis advanced by the applicant and failed to provide any reasons why that fact was inconsistent with the reasonable hypothesis raised. 16 The respondent submitted that the AAT made no error of law, addressed the questions posed by the Act and made findings of fact which negatived the hypothesis contended for by the applicant before the AAT.

the legislative framework 17 The applicant's claim is in respect of the death of her husband as being war-caused within the meaning of s 8 of the Act. The standard of proof in respect of such a claim is contained in s 120 of the Act. That section, so far as is presently relevant, provides: '120 Standard of proof (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Note: This subsection is affected by section 120A. ... (3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) that the injury was a war-caused injury or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-caused disease; or (c) that the death was war-caused or defence-caused; as the case may be, if the Commission, after consideration of the whole of the material before 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 person. Note: This subsection is affected by section 120A. (4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction. Note: This subsection is affected by section 120B.' 18 Section 120A of the Act provides: '120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles (1) This section applies to any of the following claims made on or after 1 June 1994: (a) a claim under Part II that relates to the operational service rendered by a veteran; (b) a claim under Part IV that relates to: (i) the peacekeeping service rendered by a member of a Peacekeeping Force; or (ii) the hazardous service rendered by a member of the Forces. Note 1: Subsections 120(1), (2) and (3) are relevant to these claims. Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forcessee subsection 5Q(1A). (2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority: (a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or (b) has declared that it does not propose to make such a Statement of Principles. (3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196B(2) or (11); or (b) a determination of the Commission under subsection 180A(2); that upholds the hypothesis. Note: See subsection (4) about the application of this subsection. (4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of: (a) the kind of injury suffered by the person; or (b) the kind of disease contracted by the person; or (c) the kind of death met by the person; as the case may be.' (Original emphasis) 19 There will be no sufficient ground for making a determination in favour of a claimant if the Commission is satisfied beyond reasonable doubt that the facts necessary to support the hypothesis cannot be made on the materials before it, or that the facts relied upon are untrue: Bushell v Repatriation Commission (1992) 175 CLR 408 at 413 - 416; Byrnes v Repatriation Commission (1993) 177 CLR 564 at 570 - 571. 20 In Bushell,the High Court was concerned with the relationship which existed between s 120(1) and s 120(3) of the Act. In the joint judgment of Mason CJ, Deane and McHugh JJ, their Honours said (at 413 - 416): '... 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. ... ... 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. ... ... 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." ... ... Likewise, it is the duty of the Commission under s. 120 to decide the claim on the material before it and, unless there is material which raises a reasonable hypothesis connecting the operational service with the incapacity or death, there is nothing upon which the Commission can find that the incapacity or death was war caused within the meaning of s. 120(1). But once the material raises such a hypothesis, the operation of s. 120(3) is spent and the case falls to be determined in accordance with s. 120(1). That is to say, the Commission must determine that the injury etc was war caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making the determination. The Commission will be satisfied beyond reasonable doubt "that there is no sufficient ground for making [the] determination" if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination. But unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed; we cannot conceive of a case where, for the purpose of s. 120(3), the hypothesis is reasonable having regard to the raised facts, yet the Commission could be satisfied, "beyond reasonable doubt, that there is no sufficient ground for making the determination" even though the raised facts are not disproved. Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc with the operational service, it seems convenient simply to treat the case as governed by the application of s. 120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist cf Barca v The Queen (1975), 133 C.L.R. 82, at p. 105.)''' 21 Since the decision in Bushell, the Act has been amended to include s 120A and the regime of SoPs formulated and determined by the Repatriation Medical Authority under s 196B(2) of the Act. 22 The impact of SoPs on the operation of s 120(1) and s 120(3) of the Act was considered by a Full Court of this Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, where the Court said: '1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.' 23 The SoP in the present case (No 84 of 1999) stated: 'Basis for determining the factors 3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that malignant neoplasm of the prostate and death from malignant neoplasm of the prostate can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces. Factors that must be related to service 4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person. Factors 5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate or death from malignant neoplasm of the prostate with the circumstances of a person's relevant service are: ... (c) increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate; or ...' (Original emphasis) 24 As required by the decision in Deledio, the hypothesis sought to be raised must be consistent with the 'template' found in the SoP. That means the hypothesis must contain one or more of the factors which the Repatriation Medical Authority has determined to be the minimum which must exist and also be related to the person's service. 25 Satisfaction of the third step identified in Deledio means that s 120(3) of the Act is satisfied. That is, the material (including material going to the SoP factor) points to some fact or facts ('the raised facts') which support the hypothesis connecting the death or injury of the veteran with the particular circumstances of the service rendered by that person, which is a reasonable hypothesis if the raised facts are true: Bushell at 414.

conclusion on the appeal 26 Satisfaction of the first three steps in Deledio required that the AAT was satisfied that, on the material before it, there was material which pointed to a hypothesis connecting the death of Mr Tate with the circumstances of his particular service and that the hypothesis contained as a minimum factor 5(c) from SoP 84 of 1999. That meant that the hypothesis must be that Mr Tate died from prostate cancer which was caused by Mr Tate increasing his pre-service intake of animal fat by more than forty per cent to at least seventy grams per day as a result of his military service and maintaining that level of consumption of animal fat for a period of at least twenty years prior to the clinical onset of malignant neoplasm of the prostate (prostate cancer). 27 A consideration of the AAT's reasons demonstrates that it was fully aware of the hypothesis which had to be established to link the circumstances of Mr Tate's death to his military service. 28 The reasons of the AAT record that the parties had 'agreed that a reasonable hypotheses can be established connecting the veteran's death to his war service under SoP No 84 of 1999': [9]. The AAT identified the hypothesis as: '10. The hypothesis that the applicant contends exists in this case, linking the veteran's condition with his war service, is that the veteran increased his pre-service intake of animal fat by more than 40% as a result of his Army service, maintaining that level of consumption for a period of at least 20 years prior to the onset of prostate cancer. ...' 29 There is no merit in the contention that the AAT did not understand or consider the hypothesis advanced by the applicant before the AAT. 30 The existence of the hypothesis identified in paragraph [10] as a reasonable hypothesis meant that s 120(3) of the Act had been satisfied. However, it involved no fact finding. No fact finding was required until the fourth step in Deledio arose, namely, the determination of the issues under s 120(1). 31 Determination of the issues under s 120(1) involved, among other things, a consideration by the AAT of whether it was satisfied beyond reasonable doubt that the raised facts which supported the hypothesis were untrue, or, could not be accepted, because of the unreliability of the material claimed to support them or because of the superior reliability of other parts of the material before the AAT: Bushell at 416. 32 One of the raised facts was that Mr Tate increased his pre-service intake of animal fat by more than forty per cent to at least seventy grams per day as a result of his military service. Another was that he maintained that level of consumption of animal fat for a period of at least twenty years prior to the clinical onset of the prostate cancer from which he died. Another was that the intake of animal fat which Mr Tate consumed came from the food which he ate during the relevant period. The material claimed to support those raised facts was the evidence of Mr Tate's daughter of her father's diet as identified by the foods eaten on the occasions, and in the amounts recorded, during the period covered by a dietary questionnaire prepared by her. The AAT did not accept the evidence of Ms Tate as to the matters contained in the dietary questionnaire for the reasons which it gave. 33 The AAT did not treat the dietary questionnaire or Ms Tate's evidence in relation to it as raised facts necessary to the hypothesis. Rather, it properly treated the questionnaire and her evidence as evidentiary material forming the factual foundation to support the raised facts upon which the applicant relied to support the hypothesis. The AAT rejected that material for that purpose. In doing so, it committed no legal error. 34 Having rejected Ms Tate's evidence as contained in the dietary questionnaire, all that was left of her evidence for consideration by the AAT was that before and after his military service, her father consumed foods of the types she gave evidence about which contained animal fat, that he was a heavy smoker with a more or less consistent weight during the relevant period, and that he was a regular walker until the family acquired a car towards the time of his retirement. 35 It was submitted by counsel for the applicant that the residual evidence of Ms Tate outlined above, and the evidence of Dr English (as to the results of the two calculations set out in paragraphs [29] and [30] in the AAT's reasons of estimated energy requirements of a male person of the age of Mr Tate with a weight of sixty-six kilograms), supported the raised facts notwithstanding the rejection of the dietary questionnaire and Ms Tate's evidence in relation to it. 36 Each of the calculations of Dr English which the applicant relies upon to support the raised facts, itself amounts to no more than an hypothesis that Mr Tate could have consumed animal fat in the quantities contained in, and for the requisite period required by, factor 5(c) of SoP 84 of 1999 on certain assumptions. Each of those assumptions was highly favourable to the applicant's case, and on the evidence of Dr English, unlikely to be correct. No evidence was called to make out the assumptions. Further, the assumption that the level of intake of energy was sufficient to maintain, but not increase, body weight at sixty-six kilograms, was incorrect because in December 1962 the applicant's body weight had decreased to sixty kilograms. On the evidence of Dr English, which the AAT has accepted in rejecting Ms Tate's evidence, a decrease in weight occurs because the energy input is insufficient to maintain the weight of a person at the activity level engaged in by that person. There was no suggestion that in 1962 Mr Tate was engaged in even higher levels of physical activity than the very high levels already assumed in his favour for the purpose of making the calculations in paragraphs [29] and [30] of the AAT's reasons. The reasonable inference was that Mr Tate was not then experiencing an intake of energy at the levels calculated, but rather at some lower level, even assuming all other beneficial factors in the applicant's favour, insufficient to maintain a body weight of sixty-six kilograms. Once the dietary questionnaire and Ms Tate's evidence in support of it was rejected, there were no materials which would support, as a raised fact, that Mr Tate was ingesting animal fat at some unspecified levels sufficient to satisfy factor 5(c) of SoP No 84 of 1999 for the minimum twenty year period. Absent the materials contained in the dietary questionnaire and Ms Tate's evidence in support of it, it is doubtful that there was sufficient evidence to make out the requirement identified in the third step of Deledio or that the respondent would have agreed that a reasonable hypothesis of a link between the death from prostate cancer and Mr Tate's military service existed. However, for the present purposes it is unnecessary to form any view on those matters. 37 Finally, the applicant submitted that the AAT failed to comply with its obligations under s 43(2) and s 43(2B) of the AAT Act to give reasons for its decision and to include in those reasons findings on material questions of fact supported by a reference to the evidence or other material upon which those findings were based. In particular, it is alleged that the AAT failed to: (a) identify any fact which was truly inconsistent with the hypothesis advanced by the applicant; and (b) provide any reasons for its findings that a fact had been proved beyond reasonable doubt which was inconsistent with the reasonable hypothesis raised by the applicant. 38 Section 43(2) and s 43(2B) of the AAT Act are to the same effect as s 430 of the Migration Act 1958 (Cth). That is, the sections call for a recording of matters that are matters of fact: Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at [44]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [67]. The sections only oblige the decision maker to set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision: Yusuf at [68]. The Court may infer that any matter not mentioned in the reasons was not considered to be material by the decision maker: Yusuf at [69]; Repatriation Commission v O'Brien (1985) 155 CLR 422 at 446. The drawing of that inference may or may not reveal the existence of reviewable error of law on the part of the decision maker: Yusuf at [69]. 39 The reasons of the AAT are not to be construed minutely and finely with an eye attuned to the perception of error, remembering that reasons are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to ascertain whether some inadequacy may be gleaned from the way in which the reasons are expressed: Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 286 - 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 - 272. 40 The AAT identified that the issue before it was 'whether the respondent [was] able to disprove beyond a reasonable doubt, the reasonable hypothesis raised by the applicant linking the veteran's death from prostatic cancer to his war service.': Reasons paragraph [4]. Later in its reasons, the AAT re-stated the issue and said: 'The issue before the Tribunal therefore is whether the Tribunal is satisfied beyond a reasonable doubt that the veteran's death was not war-caused.': paragraph [32]. 41 At paragraph [5] of its reasons, the AAT identified the 'reasonable hypothesis test' as that which it was required to apply and defined the test as follows: '... That means, in effect, that a claim in respect of injury, disease or death related to eligible service must be found to have been caused by that service unless the decision-maker is satisfied beyond reasonable doubt there is no basis for making that determination. ...' 42 Having stated the hypothesis in paragraph [10] of its reasons as set out above, the AAT then recorded the contention relied upon by the respondent as to why the hypothesis could not exist. It said: '... The respondent contends that, on the basis of the available expert evidence, that hypothesis cannot be said to exist. It argues that the evidence will satisfy the Tribunal, beyond reasonable doubt, that the veteran's death was not caused by his war service.' 43 In paragraphs [11] to [31] of its reasons, the AAT set out a summary of the evidence. The AAT in paragraphs [32] and [33] set out the legal criteria by which its satisfaction beyond reasonable doubt, of the matters arising for determination on the issue before it, was to be made out. In particular, the AAT referred to the decision in Byrnes at 570 - 571, where Mason CJ, Gaudron and McHugh JJ said: 'Once a reasonable hypothesis is raised, the question for the Commission is then whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury was war-caused. The Commission will be so satisfied if it is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved (Bushell (1992), 175 C.L.R., at p. 416), either by proof beyond reasonable doubt that a fact or fact relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis (ibid., at p. 427, per Brennan J). The passages in the joint judgment in Bushell that indicate that once the "raised facts" raise a reasonable hypothesis that is the end of the matter unless the raised facts are disproved (ibid., at pp. 414, 415 - 416) should not be taken to suggest that proof beyond reasonable doubt of a further, inconsistent fact will not be sufficient, under s. 120(1), to preclude a finding by the Commission that the inquiry was war-caused. The remarks of the majority in Bushell were directed specifically to a situation where the raised facts giving rise to the hypothesis covered "the whole of the material" bearing on the hypothesis. They were not directed to a case where the veteran relies on part only of the material before the decision maker. Proof beyond reasonable doubt of a fact inconsistent with the reasonable hypothesis would, by implication, demonstrate that "the factual foundation upon which the hypothesis can operate does not exist" ((1992) 175 C.L.R., at p. 416, per Mason C.J., Deane and McHugh JJ.; see also p.427, per Brennan J.)' It also referred to Bushell at 414 in a passage set out earlier in these reasons. 44 The AAT set out the submissions made to it by the parties in paragraphs [34] to [38] of its reasons. 45 The AAT then made the following findings of fact as appears from paragraphs [39] and [40] of its reasons: (a) the evidence of Dr English was reliable; (b) the calculations of Dr English, based on a body of scientific knowledge, identified the inherent unreliability of the dietary questionnaire completed by Ms Tate; (c) while accepting Ms Tate as a witness of truth, nonetheless the questionnaire contained inaccurate statements; (d) the questionnaire completed by Ms Tate, along with her oral evidence formed 'the factual foundation upon which the hypothesis put forward by the applicant [was] based': paragraph [40]; (e) the evidence of Dr English regarding the energy analysis conducted on Ms Tate's questionnaire was of superior reliability; and (f) Dr English's evidence regarding energy analysis of the questionnaire established that Mr Tate could not have consumed the amount of food stated in the questionnaire without gaining weight. 46 The significance of the finding in par (f) was the evidence, including the evidence of Ms Tate, that Mr Tate did not put on weight during the relevant period and his weight was recorded in 1962 as being less than his weight on discharge from the Army in 1946. In rejecting the evidence of Ms Tate and the validity of the dietary questionnaire, the AAT must be taken to have found that Mr Tate did not put on weight during the relevant period. 47 On a fair reading of its written reasons, the AAT found beyond reasonable doubt that Dr English's energy analysis of the dietary questionnaire, prepared and sworn to by Ms Tate in her evidence, established as a fact that Mr Tate could not have consumed the amount of food stated in the questionnaire without gaining weight, and it found accordingly. That fact was inconsistent with Mr Tate having consumed the amount of food specified in the questionnaire and thereby satisfying factor 5(c) of SoP No 84 of 1999. The inconsistency arose because Mr Tate did not gain weight during the relevant period. In fact, by December 1962, his weight had fallen below his weight upon discharge from the Army in 1946. As the oral evidence of Ms Tate formed the factual foundation upon which the relevant hypothesis was based, the finding of fact (that Mr Tate could not have eaten the quantities of food during the relevant period without putting on significant weight), in conjunction with the finding that Mr Tate did not gain, but lost, weight during the relevant period, was inconsistent with that hypothesis and demonstrated that the factual foundation on which the hypothesis operated did not exist. The ultimate findings of the AAT set out in paragraph [41] of its reasons are based in the language of the quotations the AAT set out from the judgments in Byrnes and Bushell. 48 The ultimate conclusion of the AAT to affirm the decision under review (paragraph [42]), involved the factual finding that the death of Mr Tate was not linked to his war service, and, for the purposes of s 120(1) of the Act, that the AAT was satisfied beyond reasonable doubt that there was no sufficient ground for making the determination that the death of Mr Tate was war-caused. 49 The AAT did not make any findings in respect of the additional calculations of Dr English set out in paragraphs [29] and [30] of its reasons. This does not mean it thereby failed to provide sufficient reasons for the purposes of s 43(2) and 43(2B) of the AAT Act. The Court may infer that the AAT did not regard the calculations as material to the issues for decision for those reasons in paragraph [31] of its reasons, or for some other unstated reason as, for example, that indicated above in paragraph [36] of my reasons. 50 The above analysis of the process undertaken by the AAT of defining the issues for decision, identifying the available evidentiary materials, stating the contentions of the parties which it considered, stating the relevant legal requirements and criteria which informed the manner and focus of its decision, and the findings of fact which it made leading to its ultimate decision to affirm the decision under review, for the reasons set out in the authorities cited above, satisfy the requirements of s 43(2) and s 43(2B) of the AAT Act. 51 The applicant has failed to make out reviewable error. The application is dismissed with costs to follow the event. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate: Dated: 24 October 2003 Counsel for the Applicant: A Harding Solicitor for the Applicant: Gilshenan and Luton Lawyers

Counsel for the Respondent: R Derrington Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 4 July 2003 Date of Judgment: 24 October 2003

Veterans' Entitlement Act 1986(Cth)ss 8, 120, 120A

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