[1993] FCA 299; (1993) 43 FCR 194, (1993) 30 ALD 8

Veteran's Affairs - Whether reasonable hypothesis that applicant's diabetes was a "war-caused disease" - whether Administrative Appeals Tribunal bound to accept that the applicant's diabetes was war-caused because of earlier Repatriation Commission finding that applicant's pancreatitis was war-caused - jurisdiction of Administrative Appeals Tribunal.

Administrative Appeals Tribunal Act 1975: s. 44

Veterans' Entitlements Act 1986: s. 120

Repatriation Act 1920: s. 47

Solicitors for the Respondent: Australian Government Solicitor

1. The decision of the Administrative Appeals Tribunal that Walter

Charles Langley's diabetes is not a war-caused disease be set

aside.

2. Order 1 made by the Tribunal be varied so as to read as follows:

"The Commonwealth of Australia is liable,

pursuant to section 13 of the Veterans'

Entitlement Act 1986 (as amended), to pay to

Walter Charles Langley, pension for incapacity

occasioned by diabetes and atherosclerosis with

ischaemic heart disease and cerebrovascular

disease as and from 16 May 1990."

3. The Repatriation Commission pay the costs of Walter Charles

Langley of the proceeding in this Court.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

LOCKHART and BEAZLEY JJ This is an appeal from a decision of the Administrative Appeals Tribunal in which the Tribunal found that there was no sufficient material to raise any reasonable hypothesis connecting the applicant's diabetes with his war service. The appeal was brought pursuant to s. 44(1) of the Administrative Appeals Tribunal Act 1975. As the members of the Tribunal included its President (O'Connor J), the appeal was heard by a Full Bench of this Court (s. 44(3)(b)(i)) and is within the Court's original jurisdiction.

2. Prior to the hearing of the applicant's claim, the President had separately considered and determined the question whether the Tribunal was bound to accept that the diabetic condition from which the applicant was suffering was a "war-caused disease" within the meaning of the Veterans' Entitlements Act 1986 (Cth) ("the Act") by reason of an earlier determination made by the respondent, the Repatriation Commission, on 18 June 1984 that the applicant's pancreatitis was war caused. Her Honour found that the Tribunal was not so bound. Both that finding and the Tribunal's finding that it was satisfied beyond reasonable doubt that the applicant's diabetes was not war-caused is the subject of the appeal before us.

3. The relevant facts may be stated briefly. The applicant was born on 27 July 1922. He first enlisted in the army in 1940 and served two periods of "operational service" (see s. 6 of the Act): 12 October 1940 to 14 December 1945 during World War II and 11 October 1951 to 11 December 1952 in Korea and Japan. In 1975 the applicant, suffering various disabilities and having ceased working, claimed and was granted a service pension pursuant to the Repatriation Act 1920 ("the 1920 Act"). None of the disabilities for which the service pension was granted was then or is now accepted by the Commission as a war-caused injury or disease.

4. On 16 May 1983 the applicant claimed a disability pension. On 18 June 1984 the Commission determined under the 1920 Act that the applicant's chronic bronchitis and pancreatitis with pseudocyst and surgery were war-caused ("the 1984 determination"). Pancreatitis is an inflammation of the pancreas which may arise from a variety of causes. The Commission, in its 1984 determination, found that the applicant's pancreatitis was due mainly to the ingestion of alcohol, "a habit which appears to be related to a nervous condition which he claims has existed since service in World War II". This claim for disability pension was governed by s.47 of the 1920 Act which provided that a claim shall be granted unless the Commission can be satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim. The Commission found that it could not be so satisfied and granted the claim under s.101(1)(b) of the 1920 Act. It fixed the rate of pension at 30% of the general rate. The applicant's pension rate was subsequently increased to 60%, with effect from 8 May 1985.

5. On 16 August 1990, the applicant claimed a pension for the disabilities of diabetes, ischaemic heart disease and cerebrovascular disease. His claim was rejected by the Commission. In its reasons for decision of 22 November 1990, the Commission referred to the comments of a medical officer of the Department of Veterans' Affairs who examined the applicant's claim and who had made the following comments:

"DIABETES MELLITUS - The exact cause in this

case is unknown but is thought to be associated

with inheritance of genes which lead to insulin

resistance and decrease insulin secretion. The

veteran relates this disability to his accepted

disability of pancreatitis with pseudocyst and

surgery. In 1978 the veteran underwent surgery

for this disability and made a complete

recovery. His pancreas was described as normal

in February 1981. A perusal of the service

documents revealed nothing that could be related

to latent diabetes mellitus which first became

manifest about 1987. ..."

6. The Commission found that the evidence did not raise a reasonable hypothesis connecting the conditions of diabetes mellitus and atherosclerosis with ischaemic heart disease and cerebrovascular disease with the applicant's war-service. The claim was therefore refused.

7. The applicant applied for a review of that decision to the Veterans' Review Board, which, on 9 July 1991, affirmed the decision of the Commission. The relevant legislation at this time was the Veterans' Entitlements Act 1986 ("the Act"), s.120 replacing s.47 of the 1920 Act. The Board accepted the medical evidence that there is a causal association between the applicant's pancreatitis and his subsequent development of diabetes. The Board held, however, that this did not necessarily mean that it was obliged to conclude that the condition of diabetes was war-caused. It said that the only basis for that conclusion would appear to be that because the applicant's pancreatitis had been determined to be related to his war service, the diabetes must in turn be found to be war-caused.

8. The Board said that this contention raised another question, namely, whether, when it was considering a chain of causation argument in respect of a new claim for a separate disability, it was prevented or estopped by the 1984 determination from accepting pancreatitis as service related. The Board referred to the doctrine of issue estoppel and to the joint judgment of Fisher and Lockhart JJ in Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 39 ALR 649. In that case, their Honours said (at 654) that the Tribunal was entitled to consider all the evidence before it and to attach appropriate weight thereto when evaluating the conduct of the applicant (Daniele) and that issue estoppel had no place in proceedings of the Tribunal. The Board concluded that it had an independent statutory duty to investigate for itself all the facts of the matter to determine whether the applicant's diabetes had a causal relationship with war service under any of the heads of liability set out in s. 9 of the Act.

9. The Board referred to the basis of the Commission's acceptance of the applicant's pancreatitis as service related in the 1984 determination, namely its causal relationship with the applicant's drinking habit, a habit which appears to be related to a nervous condition which the applicant claims has existed since service in World War II. In its 1984 determination the Commission accepted as a "possibility" that a diagnosed personality disorder, which existed prior to service, was aggravated by the conditions of that service and led the applicant to drink excessive amounts of alcohol. This in turn led to his pancreatitis.

10. The Board noted that the applicant's records show that he has had a long history of alcoholic disease and alcohol dependency. It noted also that the applicant had told the Board that he started drinking during war service and drank whatever he could during that time. The Board found that it could see nothing in the material before it to indicate that the applicant may have had a psychological dependence on alcohol during his two periods of service or in the immediate years after that service. It noted that the Commission's delegate, whose decision was under review before the Board, had only provided the connection with war service by linking the dependency on alcohol to the applicant's psychiatric problems which, in turn, he suggested were connected with his war service. The Board said it could find nothing in the material before it to suggest that the applicant's psychiatric condition might be connected with its war service. The Board found that it could find nothing to disagree with the findings of a psychiatrist, Dr J Hurt, who commented that there was no evidence of any psychiatric disorder whilst the applicant served in the army, nor at the time of his discharge from the army and that it was obvious from his history that the applicant had been unable to manage himself or his affairs effectively for some years, probably since 1960 when his wife died, leaving him to support and provide for his children, and that it was not considered that the applicant's anxiety state was due to his war service or had been aggravated by it. The Board found that it did not see any reason to disagree with those findings or to suggest that the applicant's state of anxiety might be otherwise related to the conditions of his war service. Consequently it found that it could not associate his alcohol dependency with his war service.

11. The Board concluded that the requisite reasonable hypothesis connecting the applicant's diabetes with the circumstances of his war service had not been raised and it was therefore satisfied beyond reasonable doubt that there was no sufficient ground for determining that the applicant's diabetes was war-caused. It affirmed the decision of the Commission under review in so far as it related to that condition. The Board also found that the requisite reasonable hypothesis connecting the applicant's atherosclerosis and ischaemic heart disease and cerebrovascular disease with the circumstances of his particular war service had not been raised. It followed that it was satisfied beyond reasonable doubt that there was no sufficient ground for determining that those conditions were war-caused and therefore affirmed the decision under review in so far as it related to those conditions.

12. The applicant applied to the Tribunal for a review of the Board's decision. On 28 February 1992 the President of the Tribunal decided as a preliminary point that there was no legal bar by way of jurisdictional limitation or estoppel which prevented the Tribunal from examining the facts underlying the 1984 determination that the applicant's pancreatitis was war-caused. The Tribunal was reconstituted for the substantive hearing which took place on 11 August 1992. On 11 September 1992 the Tribunal found that the Commonwealth was liable, pursuant to s. 13 of the Act, to pay to the applicant a pension for incapacity occasioned by atherosclerosis with ischaemic heart disease and cerebrovascular disease, but that the applicant's diabetes was not war-caused.

13. In its reasons for decision the Tribunal noted the determination of the President. It then examined the relevant facts and circumstances. It concluded that there did exist a reasonable hypothesis that the applicant's habit of drinking alcohol to excess was caused or contributed to by his war service. It made no finding as to whether the applicant's pancreatitis was or was not caused or contributed to by his war-service. It concluded that it was satisfied beyond reasonable doubt that no reasonable hypothesis had been raised as to any link between the applicant's pancreatitis and diabetes. It said that the opinion of Dr Kidson (a witness called by the respondent) was against such a link and that Dr Batey (a witness called by the applicant) did not dissent from Dr Kidson's views. The Tribunal referred to the judgment of the Full Court of this Court in Byrnes v Repatriation Commission [1991] FCA 481; (1991) 103 ALR 422 and stated that it derived from that judgment support for the view of the Tribunal that it was "entitled to accept one medical witness in preference to another and so hold that the reasonable hypothesis has not been raised". The Tribunal said it seemed that even Dr Batey now considered that the more credible opinion was that the applicant's diabetes is a Type II or majority onset diabetes which he would have suffered in any event.

14. The Tribunal then made the following findings which were the subject of criticism before us by counsel for the applicant. We set them out in full.

"38. Mr Smith submitted, for the Applicant,

that even if his diabetes was Type II the

pancreatitis contributed to it. The only

way in which the pancreatitis contributed

was that it brought the onset of the

disease forward by up to five years.

There is no evidence that the disease

itself is now worse than it otherwise

would have been.

39. The Tribunal has held in previous matters

that the acceleration of a disease or

injury in the sense of a veteran suffering

incapacity from that disease or injury

earlier than he would have done, apart

from war service, means that the disease

or injury is caused or contributed to by

his war service - see Re Petty and

Repatriation Commission 19 ALD 573.

40. Re Petty supra is distinguishable. In

that case there was evidence that the

acceleration caused an aggravation in the

sense of increasing or making worse the

severity of the disease. There is no such

evidence in this case, indeed Dr Kidson's

report indicates that the Applicant's

diabetes is well controlled. The Tribunal

finds that there is no sufficient material

to raise any reasonable hypothesis

connecting the Applicant's diabetes with

his war service by way of aggravation or

acceleration occasioned by his pancreatitis.

41. Having regard to all the material in this

case, the Tribunal is satisfied beyond

reasonable doubt that the Applicant's

diabetes is not war-caused.

42. As stated above the evidence that the

Applicant's vascular disease was

contributed to by his alcohol intake was

not controverted by the Respondent. As

the Tribunal has found that a reasonable

hypothesis exists connecting the

Applicant's alcohol habituation to his war

service, it necessarily follows that the

vascular disease suffered by him is also

war-caused."

15. The Tribunal concluded that the Commonwealth was liable, pursuant to s. 13 of the Act, to pay the applicant pension for incapacity occasioned by atherosclerosis with ischaemic heart disease and cerebrovascular disease as and from 16 May 1990 and that the applicant's diabetes was not a war-caused disease. The Tribunal ordered that the matter be remitted to the Commission in order that it might assess pension payable to the applicant for incapacity occasioned by all war-caused injuries and diseases suffered by him.

16. On 18 December 1992 the Commission increased the rate of the applicant's disability pension to 100% and granted him the Extreme Disability Adjustment with effect from 16 May 1990.

17. No issue arose in the proceeding before this Court as to the Tribunal's findings with respect to atherosclerosis with ischaemic heart disease and cerebrovascular disease. The issues on the appeal related solely to the Tribunal's finding that the applicant's diabetes was not a "war-caused disease".

18. The principal question involved in the hearing before this Court is whether the Tribunal was bound to accept that the applicant's pancreatitis was a "war-caused disease" within the meaning of the Act by reason of the 1984 determination to that effect. It was argued by counsel for the applicant that the Tribunal was so bound, as it was not within its jurisdiction (or the jurisdiction of the earlier decision-makers - the Board or the Commission) to consider afresh whether the applicant's pancreatitis was a war-caused disease. The argument was not put before us on the basis of estoppel, but as a question of jurisdictional limitation.

19. The starting point of the applicant's argument is Repatriation Commission v O'Brien [1985] HCA 10; (1985) 155 CLR 422. O'Brien served in the Royal Australian Air Force during the Second World War. He did not serve in a theatre of war, his service being wholly confined to Australia. On 12 July 1946, a Repatriation Board accepted a claimed incapacity for right sesamoiditis hallux as due to war service. On 3 August 1954, a Repatriation Board accepted a claimed incapacity arising from duodenal ulcer and fibrositis as being due to war service. In 1961, anxiety hysteria was diagnosed and, on 9 November 1961, a Repatriation Board accepted the neurosis as due to war service, but assessed the incapacity as negligible. On 31 August 1970, a claim in respect of a hiatus hernia was accepted. Apart from these claims, other claims were made over the years and rejected. O'Brien was frequently in receipt of treatment for stomach and back trouble. In 1970, the assessment of his disability in respect of anxiety hysteria was raised from nil to 20%. In October 1974, O'Brien sought a war pension because of a recently diagnosed condition of essential hypertension which he claimed was related to his accepted disability of anxiety hysteria.

20. A Repatriation Board rejected the claim in August 1975. In the following 4 years, the claim was considered on five different occasions by the Commission, on each of which the Commission considered the case on the basis of the evidence then before it. On each occasion it rejected O'Brien's claim. The decision of the Commission on the fifth occasion was the subject of an appeal by O'Brien to the Pensions Entitlement Appeal Tribunal (which was replaced by the Repatriation Review Tribunal) which rejected his claim, a rejection confirmed on review by the Administrative Appeals Tribunal which reopened the unchallenged findings of disability. On appeal to the Full Court of this Court, that decision was set aside and the claim was granted.

21. The High Court by majority (Gibbs CJ, Wilson and Dawson JJ; Murphy and Brennan JJ dissenting) held that the Administrative Appeals Tribunal had no power to entertain the already determined connection between the applicant's neurosis and his war service. It was held that, if the Tribunal had properly instructed itself as to the status of the neurosis as an accepted disability, it could not have been satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. The particular passage in the decision of the majority in O'Brien upon which argument was centred before us is at p 429 where their Honours said:

"In the present case, the reference was confined

to the five decisions of the Commission whereby

on each occasion the respondent's claim for a

war pension based on his essential hypertension

was rejected. The decision of a Repatriation

Board in November 1961 accepting the

respondent's anxiety neurosis as due to war

service has never been challenged by way of

appeal. The same is true of the decision of a

Board in 1970 which raised the assessment of his

disability in respect of that neurosis from nil

to 20 per cent. Whether or not the Commission

considered it desirable to do so, in our opinion

it was not open for these earlier decisions to

be reviewed and reversed in the course of

considering the respondent's claim based on his

hypertension. Neither of these earlier

decisions was embraced within the reference to

the president of the A.A.T. The A.A.T.

therefore had no jurisdiction to review either

of those decisions: Administrative Appeals

Tribunal Act, s.25." (emphasis added)

22. In our opinion, the majority of the High Court held in this passage that the Tribunal's jurisdiction was limited to a review of the decisions referred to in the terms of the reference to it. The Tribunal had no jurisdiction or power to consider issues which were outside the terms of the reference. That is all, so far as is presently relevant, that can be gleaned from this passage. It does not support the proposition contended for by the applicant that in the judgment of the High Court the Tribunal's (and therefore the Commission's) powers did not include any power to review an earlier determination that a condition was war-caused. O'Brien's Case decided that the Tribunal's jurisdiction was derived from the referring instrument which did not include the earlier determination of the Repatriation Board which the Tribunal purported to review; hence the Tribunal had no power to entertain that issue.

23. In the present case, the Commission is required by the Act to determine whether or not the applicant for a pension or for an increase in the rate of a pension is entitled to the pension or increase. This involves an inquiry into all matters relevant to the determination of the application (s. 18(1)). It was therefore necessary that the Commission, and thereafter the Board and the Tribunal, determine whether or not the applicant had contracted his disease of diabetes in circumstances where it could be said that it arose out of or was attributable to his war service. The claim which he made in 1990 relating to diabetes, the first such claim, required the Tribunal to engage in the exercise of analysing all the necessary facts for itself, to determine whether or not that claim was soundly based. It was a different claim from the claim which culminated in the 1984 determination that the applicant's pancreatitis with pseudocyst and surgery was war-caused. O'Brien's Case is distinguishable from this case.

24. Brennan J in his minority judgment in O'Brien found it unnecessary to decide the issue of whether the Tribunal was bound to accept an earlier determination when reviewing a claim in respect of a different condition. However, his Honour said at 446:

"Had it been necessary to decide the question, it seems to

me that there are difficulties in the way of holding that an

unreviewed Board decision accepting a condition as being

attributable to war service is binding on the A.A.T. when it

is reviewing a decision made on a claim in respect of a

different condition. No issue of estoppel arises, nor does

a finding in the later proceedings affect an entitlement

flowing from the earlier finding."

25. We consider his Honour's comments correctly reflect the law. In our opinion, there is no prohibition on a decision-maker in considering afresh a new claim for a different condition by reason of an earlier determination.

26. There is a fundamental difference between the consideration of a fresh claim for a pension in respect of incapacity from an injury or disease that is different from an injury or disease the subject of a prior determination of the Commission, though involving some facts and circumstances common to both the earlier determination and the later claim. Subject to specific statutory provisions enabling it to do so (see s.31 of the Act) the commission cannot review the earlier determination; but is may consider afresh the facts which underpinned the earlier determination where it is necessary do so, so that it may discharge its statutory function of determining the later claim. The later determination does not affect any entitlement of the veteran arising from the earlier determination.

27. The Commission may re-open an earlier determination in the circumstances mentioned in s 31; but the determination of a claim in respect of an injury or disease not the subject of the earlier determination of the commission cannot be described as the re-opening of the earlier determination notwithstanding that certain of the factual matrix involved in the earlier determination is challenged in the later claim. The entitlement of the veteran flowing from the earlier determination stands, unless varied or cancelled by a subsequent determination of the commission pursuant to its powers under the Act. The applicant's claim which is subject of the present proceeding is basically different in character from the claim which gave rise to the 1984 determination.

28. It should not be assumed that the re-opening in the hearing of the later claim, of certain of the facts which attended the earlier claim, will necessarily operate to the detriment of the veteran. The result of this later examination of the facts will not affect the entitlement of the veteran arising from the earlier determination. It is true that as time passes, the whereabouts of witnesses becomes increasingly uncertain, and memories fade; but exigencies of this kind are a commonplace to the law and are taken into account by courts and tribunals. This is emphasised by the structure of the Act (see s. 120). Also the advance of medical science and technology may lead to the discovery of evidence that supports, not negates, the veteran's later claim in relation to facts common to both the earlier and later claims.

29. The extent to which the Commission will examine facts underlying an earlier determination of the Commission that the veteran's injury or disease was war-caused will depend upon the circumstances of the case. If no challenge is made to the earlier determination, it will be rare for the Commission to re-examine the facts that underpin that determination unless it perceives some clear error. But further facts about the veteran and his condition may come to light following the making of the earlier determination of the Commission or additional medical evidence may become available or other circumstances may change. In such a case the Commission doubtless would look again at the facts that were before it at the earlier time and review them in the light of the subsequent material.

30. Counsel for the applicant further relied upon a decision of the Tribunal in Re Foulger and Repatriation Commission (1980) 2 ALD 789. In our opinion Foulger does not support counsel's argument. We note that Davies J, who was the then president of the Tribunal and who presided in Foulger, was also the presiding member of the Full Court (Davies, Lockhart and Sheppard JJ) in Sprod v. Repatriation Commission (1985) 9 ALN N16 where the Full Court followed O'Brien and held that the Tribunal had no jurisdiction to find that Sprod did not suffer nervous tension or anxiety because it was not a matter directed to the Tribunal pursuant to s. 107VZZB of the 1920 Act. The reference in Sprod to absence or lack of jurisdiction relates only to the limitations necessarily imposed on the jurisdiction of an administrative tribunal by the terms of reference to it.

31. Counsel for the applicant also relied upon the decision of Davies J in Minister for Immigration, Local Government and Ethnic Affairs v Gugerli [1992] FCA 238; (1992) 36 FCR 68 where his Honour stated at p 78 "If an administrative tribunal has power to determine a particular matter, then it may determine that matter conclusively and its decision may have, to that extent an effect in rem". In Thrasyvoulou v. Secretary of State for the Environment (1990) 2 AC 273 such a determination was described as giving rise to "the analogue" of a "cause of action estoppel". Having regard to the statutory scheme we do not consider these decisions have any application.

32. We are of the opinion that the conclusion of the president of the Tribunal, that there was no bar by way of jurisdictional limitation to the Tribunal examining the facts underlying the 1984 determination of the Commission that the applicant's pancreatitis was war-caused, is correct.

We do not find it necessary to examine any question of estoppel since estoppel was not argued before us. However, in Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 61 FLR 354 Fisher and Lockhart JJ held that issue estoppel does not apply to the Tribunal because it is a rule of evidence. Section 33(1)(c) of the AAT Act provides that the Tribunal is not bound by the rules of evidence. In Commonwealth of Australia v Sciacca (1988) 17 FCR 476 at p 480 the Full Court of this Court held that, even if issue estoppel was a rule of law, it would not apply to the Tribunal because of its administrative nature and the provisions of s. 33(1)(b) of the AAT Act, which require the Tribunal to conduct its proceedings as far as possible without formality and technicality. See also Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 21 FCR 193 at 219 and Midland Metals Overseas Limited v Comptroller-General of Customs, unreported, 6 June 1991.

33. It is next necessary to determine whether there was an error of law in the Tribunal's finding that it was satisfied beyond reasonable doubt that the applicant's diabetes is not war caused.

34. The applicant's entitlement to a pension arises under s 13 which provides:

"13(1) Where -

(a) the death of a veteran was war-caused; or

(b) a veteran has become incapacitated from a

war-caused injury or a war-caused disease;

the Commonwealth is, subject to this Act, liable

to pay:

(c) in the case of the death of the

veteran - pensions to the dependants of the

veteran; or

(d) in the case of the incapacity of the

veteran - pension by way of compensation

to the veteran;

in accordance with this Act."

35. "War-caused injury" and "war-caused disease" are defined in s. 9 as follows:

"9(1) Subject to this section, for the purposes

of this Act, an injury suffered by a veteran

shall be taken to be a war-caused injury, or a

disease contracted by a veteran shall be taken

to be a war-caused disease, if:

(a) the injury suffered, or disease

contracted, by the veteran resulted from

an occurrence that happened while the

veteran was rendering operational service;

(b) the injury suffered, or disease

contracted, by the veteran arose out of,

or was attributable to, any eligible war

service rendered by the veteran;

(c) ...

(d) ...

(e) the injury suffered, or disease

contracted, by the veteran:

(i) was suffered or contracted while the

veteran was rendering eligible war

service, but did not arise out of

that service; or

(ii) was suffered or contracted before

the commencement of the period, or

last period, of eligible war service

rendered by the veteran, but not

while the veteran was rendering

eligible war service;

and, in the opinion of the Commission, the

injury or disease was contributed to in a

material degree by, or was aggravated by,

any eligible war service rendered by the

veteran, being service rendered after the

veteran suffered that injury or contracted

that disease;

but not otherwise."

36. "Disease" is defined in s.5D as follows:

"'disease' includes:

(a) any physical or mental ailment, disorder,

defect or morbid condition (whether of

sudden onset or gradual development); and

(b) the recurrence of such an ailment,

disorder, defect or morbid condition;

but does not include the aggravation of such an

ailment, disorder, defect or morbid condition."

37. Counsel for the applicant attacked the finding of the Tribunal that it was satisfied beyond reasonable doubt that the applicant's diabetes was not war-caused, arguing that the Tribunal's conclusion was based upon two erroneous assumptions which were said to be:

(1) that, without any added aggravation of symptoms, the

acceleration of the onset of the disease cannot satisfy the

causal connection required by s. 9(1)(b) of the Act, that is

that the disease "arose out of, or was attributable to" war

service; and

(2) that there was no evidence before the Tribunal that

war-caused pancreatitis caused an aggravation of diabetes.

38. Counsel for the applicant submitted that the first assumption was erroneous as s. 9 requires only some material contribution either to the occurrence of the disease or to its development and that other causes may be dominant or more proximate. Once either such contribution is found, it is irrelevant that the condition would have become manifest subsequently or would have become equally severe without the contribution. It was also argued that the Tribunal erroneously referred to Re Petty and Repatriation Commission (1990) 11 AAR 458. It was submitted that the Tribunal misconstrued s. 9(1)(b) by requiring that a favourable hypothesis show that the applicant's pancreatitis aggravated as well as accelerated the onset of diabetes.

39. That case involved a consideration of s.9(1)(e) and for the reasons we express below, does not resolve the issue here. More relevantly for present purposes, the High Court held in The Darling Island Stevedoring and Lighterage Co. Limited v. Hankinson [1967] HCA 10; (1967) 117 CLR 19 that acceleration of a disease is distinct from its aggravation, although in a given case there may be an overlap.

40. Section 9(1)(e) is directed to the suffering of injury or the contraction of disease by a veteran whilst the veteran was rendering war service, but which did not arise out of that service; or was suffered or contracted before then (not while the veteran was rendering eligible war service) and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by any eligible war service rendered by the veteran, after the veteran suffered that injury, or contracted that disease.

41. Counsel for the Commission submitted on the other hand that s. 9(1)(b) does not embody any concept of either aggravation or acceleration. This submission was based on the premise that there is no reference in s.5D to either acceleration or aggravation and aggravation had been expressly excluded from the concept of a disease by that section. However there is express reference to aggravation in s.9(1)(e).

42. Section 9(1)(b), which governs the applicant's case, speaks of the contraction of a disease by a veteran arising out of or being attributable to any eligible war service rendered by the veteran. Obviously, this includes the case of the suffering of the injury or contraction of the disease after the veteran has completed his war service provided the requisite link is established with his war service. But a veteran may contract a disease which on the medical evidence he would be likely to have contracted in any event; and it may be that because of his war service the contraction of the disease has been accelerated. The period of the acceleration may be little or considerable. There is no reason why it could not be as much as ten or twenty years after he has completed his war service. It would be strange, indeed, in legislation of this remedial kind if in those circumstances the veteran was not entitled to assert successfully that his contraction of the disease arose out of or was attributable to his eligible war service. Otherwise, he would spend the period of some ten or twenty years (to take our example) suffering from the disease which he would not have suffered from in the absence of war-service until the expiration of that period. The language of the relevant sections, ss. 9 and 5D, is consonant with the view which we regard as correct. Hence, we reject the argument of counsel for the Commission.

43. As to the second assumption, that there was no evidence before the Tribunal that war-caused pancreatitis caused an aggravation of diabetes, it was argued before this Court that the Tribunal's conclusion was manifestly incorrect on the material before the Tribunal and that the Tribunal's error is one of law. In particular, counsel argued that the Tribunal failed to appreciate the proper implication of the important evidence of Dr Kidson that pancreatitis made some material contribution to the diabetes. It was said that Dr Kidson's evidence was the only specialist medical evidence doubting a contributory causal connection. However, his evidence could not be accepted without an important qualification which he gave to his opinions in his evidence. The qualification was that whilst the diabetes should be principally diagnosed as Type II, with causes unrelated to alcohol or pancreatitis, the disease was to the extent of 10 to 20% attributable to pancreatic damage and, furthermore, that its onset had been accelerated by the pancreatitis. Thus, it was argued, the evidence did not allow the Tribunal to conclude that the only way in which the pancreatitis contributed to diabetes was that it brought the onset of the disease forward by up to five years. It was argued that the only conclusion open on the evidence, including the evidence of Dr Kidson, was that the applicant's pancreatitis probably made some contribution to the severity of the disease and could not be characterised as de minimus.

44. As mentioned earlier, the Tribunal found that the only way in which the applicant's pancreatitis contributed to his diabetes was that it brought the onset of the disease forward by up to five years. It held there was no evidence that the disease itself was now worse than it otherwise would have been. This conclusion could have been reached only by reliance upon Dr Kidson's evidence because that was the least favourable evidence for the applicant before the Tribunal and the only specialist medical opinion which cast doubt upon a contributory causal connection.

45. Dr Batey said in evidence that there was a strong likelihood that pancreatitis had been a contributing factor to the applicant's diabetic state.

46. Dr Canalese, whose report of 23 May 1991 was before the Tribunal, said in his report:

"I have no doubt that his pancreatitis would

have contributed to his diabetes, and certainly

should be considered as part of a continuum of

pancreatitis and diabetes, rather than isolated

disease."

47. Dr North, who treated the applicant for his condition of pancreatitis, said in his report of 24 May 1991:

"It is not surprising he has developed diabetes

as a consequence of this severe pancreatic

abscess, as most of the pancreatic tissue would

have been destroyed through this illness."

48. As to Dr Kidson's evidence it must be remembered that he qualified his earlier opinions in the manner mentioned by the Tribunal in paragraphs 28 and 29 of their report, namely, the qualification in the following passages from his evidence:

"I would say that 10 to 20 per cent of Mr

Langley's diabetes could be attributable to his

pancreatic damage at the time of his

pancreatitis and that 80 to 90 per cent of his

diabetes as Type II of that and that of that 80

and 90 per cent being due to Type II there has

been early precipitation by the severe illness

that he has suffered. So in other words I am

saying that I think it is improbable that Mr

Langley has lost more than 10 or 20 per cent of

his insulin cells but equally that the illness

itself even if it didn't cause any loss of

insulin cells has probably brought on the

diabetes a little earlier than would otherwise

have happened."

49. Later in his evidence, when asked to what degree the onset of the applicant's diabetes had been accelerated by his pancreatitis, Dr Kidson said:

"I think it is improbable that the illnesses

that Mr Langley has suffered has brought his

diabetes on by more than two to five years

earlier than he would have suffered."

50. We agree with the submission of counsel for the applicant that in these passages Dr Kidson must be understood as accepting that, whilst the diabetes should be principally diagnosed as Type II with causes unrelated to alcohol or pancreatitis, the disease was to an extent of 10 to 20 per cent attributable to pancreatic damage, and, furthermore that its onset was accelerated by pancreatitis.

51. In our opinion this evidence did not permit the Tribunal to conclude that the opinion of Dr Kidson was against any link between the applicant's pancreatitis and diabetes or that:

"The only way in which the pancreatitis

contributed was that it brought the onset of the

disease forward by up to five years. There is

no evidence that the disease itself is now worse

than it otherwise would have been."

52. It was next argued by counsel for the applicant that, if it is not accepted that the Tribunal erred in law in interpreting s. 9(1)(b) or in assessing the effect of the evidence of Dr Kidson, the Tribunal erred because it misconceived s. 120(3) of the Act.

53. In deciding whether a reasonable hypothesis had been raised, the Tribunal considered that it was entitled to adjudicate upon the whole of the evidence and it accepted the medical witness most unfavourable to the applicant. Counsel for the applicant submitted that this has been held by the High Court to be an erroneous interpretation of the section: see Bushell v Repatriation Commission [1992] HCA 47; (1992) 109 ALR 30 at 34-36, 45, 54. It was argued in addition that the Tribunal failed to address and appreciate the "threshold" weight of the favourable medical opinion of a causal contribution of pancreatitis to diabetes and that a question of law was raised because this failure was so "surprising" as to "raise the inference", that the Tribunal "applied the wrong test" (a reference to Bushell at 41).

54. Section 120 of the Act relevantly provides that the Commission shall determine that an injury or disease was caused by operational service unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Commission shall be so satisfied if, after consideration of the whole of the material before it, it is of the opinion that the evidence does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the veteran (s. 120(1), (2) and (3)).

55. The 1920 Act posited a different test, namely, the Commission was required to grant a claim unless it was satisfied beyond reasonable doubt that there were insufficient grounds for granting it (s. 47(2)), one ground being that the alleged injury or disease was not attributable to war-service.

"But leaving aside cases of those kinds, the case must be

rare where it can be said that a hypothesis, based on the

raised facts, is unreasonable when it is put forward by a

medical practitioner who is eminent in the relevant field of

knowledge. Conflict with other medical opinions is not

sufficient to reject a hypothesis as unreasonable. As we

have earlier pointed out, it is not the function of s.120(3)

to require the Commission to choose between competing

hypotheses or to determine whether one medical or

scientific opinion is to be preferred to another."

57. Accordingly, it was not open to the Tribunal to prefer the evidence of one doctor to another. It was required to consider whether on the whole of the evidence before it there was evidence which raised the necessary reasonable hypothesis was raised. In any event, as we have said, the Tribunal erred in its finding in respect of the evidence of Dr. Kidson.

58. In all the circumstances the Tribunal should have found that the applicant's diabetes was contributed to by his war-caused condition of pancreatitis. It could not have been satisfied beyond reasonable doubt that no reasonable hypothesis had been raised (s. 120).

59. Counsel for the applicant submitted that in the circumstances of the Tribunal's error, the matter should be remitted for rehearing in relation to the applicant's claim for diabetes. Having regard to our findings, however, we would make the following orders:

1. That the decision of the Tribunal that the applicant's

diabetes is not a war-caused disease be set aside.

2. That order 1 made by the Tribunal be varied so as to read as

follows:

"The Commonwealth of Australia is liable,

pursuant to section 13 of the Veterans'

Entitlement Act 1986 (as amended), to pay to

Walter Charles Langley, pension for incapacity

occasioned by diabetes and atherosclerosis with

ischaemic heart disease and cerebrovascular

disease as and from 16 May 1990."

3. The Commission pay the costs of the applicant of the

proceeding in this Court.

60. In the result the decision of the Tribunal, as varied by the order of this Court, will read as follows:

"The decision under review is set aside and the

Tribunal substitutes in lieu thereof its

decision, namely, that:

1. The Commonwealth of Australia is liable,

pursuant to s. 13 of the Veterans

Entitlements Act 1986 (As amended) to pay

to Walter Charles Langley pension for

incapacity occasioned by diabetes and by

atherosclerosis with ischaemic heart

disease and cerebrovascular disease as and

from 16 May 1990.

2. This matter is remitted to the

Repatriation Commission in order that it

might assess pension payable to the

applicant for incapacity occasioned by all

war-caused injuries and diseases suffered

by him."

SPENDER J I have had the advantage of reading the reasons for judgment of Lockhart and Beazley JJ in draft form. I respectfully agree with their Honours' reasons that the finding by the Administrative Appeals Tribunal ('the Tribunal') that it was satisfied beyond reasonable doubt that Mr Langley's diabetes was not war-caused involved errors of law, and that the appeal should be allowed.

2. In my opinion, for the reasons which their Honours give, if the onset of the disease is accelerated by war service, that disease is "war-caused" within the terms of s. 9(1)(b) of the Veterans' Entitlements Act 1986 ('the Act').

3. Having regard to the evidence of Dr Kidson and, in particular, the passage set out in their Honours' reasons for judgment, the Tribunal also erred in law in concluding that there was no evidence before it that there was a causal connection between Mr Langley's pancreatitis and his diabetes. That evidence of Dr Kidson, whose evidence was the least favourable to the veteran's case, indicated that in Dr Kidson's view 10 to 20% of the veteran's diabetes was attributable to pancreatic damage and that the onset of that diabetes was accelerated by the pancreatitis.

4. I agree also that it was not open to the Tribunal to prefer the evidence of one doctor to another. Its task was to consider whether on the whole of the evidence, the evidence did not raise a reasonable hypothesis connecting the disease with the war service of the veteran: s. 120(1), (2) and (3).

5. It is not the function of this court to substitute its findings for those of the Tribunal but in the light of the evidence before the Tribunal, in my opinion the only conclusion open to it was to find that Mr Langley's diabetes was contributed to by his war-caused condition of pancreatitis. It was not open to it to have been satisfied beyond reasonable doubt that no reasonable hypothesis connecting his diabetes with his war service had been raised. In those circumstances I agree with the orders proposed by Lockhart and Beazley JJ.

6. From the appellant's point of view, that is sufficient to dispose of all the matters touching the actual conclusion to be reached. There is however a question of considerable importance which was raised by these proceedings but which ultimately is not crucial to the actual determination of Mr Langley's appeal. That question is the significance of an earlier finding by an administrative decision-maker as to the causation of injury or disease, and the circumstances in which it might be rejected. On this question my view differs from the opinion expressed by Lockhart and Beazley JJ in their reasons for judgment.

7. It is helpful to set out the essential facts, omitting matters irrelevant to the present question.

8. Mr Langley on 16 May 1983 claimed a disability pension. On 18 June 1984 the Repatriation Commission determined under the Repatriation Act 1920 that, inter alia, his pancreatitis with pseudocyst and surgery was war-caused. By s. 47 of the Repatriation Act, a claim for disability pension was to be granted unless the Commission could be satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. The Commission found that it could not be so satisfied and granted the claim under s. 101(1)(b) of the Repatriation Act.

9. On 18 August 1990 Mr Langley claimed a pension for a number of disabilities which included diabetes. On 22 November 1990, the Commission, by its delegate, rejected the claim, finding that the evidence did not raise a reasonable hypothesis connecting the condition of diabetes mellitus with the applicant's war service. The determination of the Commission was:

" Diabetes Mellitus...(is) not war-caused within the meaning

of section 9 of the Veterans' Entitlement Act. The claim

for pension is refused. "

10. Mr Langley had related the disability of diabetes to his accepted disability of pancreatitis with pseudocyst and surgery. The Commission in its reasons referred to a report by a medical officer who had said:

" DIABETES MELLITUS -

The exact cause in this case is unknown but is thought to be

associated with inheritance of genes which lead to insulin

resistance and decrease insulin secretion. The veteran

relates this disability to his accepted disability of

pancreatitis with pseudocyst and surgery. In 1978 the

veteran underwent surgery for this disability and made a

complete recovery. His pancreas was described as normal in

February 1981. A perusal of the service documents revealed

nothing that could be related to latent diabetes mellitus

which first became manifest about 1987. "

11. The correctness of the 1984 accepted disability of pancreatitis was not the subject of challenge in the application to the Commission in 1990, nor is there any suggestion of non-acceptance of that determination in the Commission's reasons for decision.

12. On 18 December 1990, Mr Langley sought review by the Veterans' Review Board ('the Board'). The decision of which review was sought was the decision that diabetes mellitus was not war-caused. Before the Board, the representative of Mr Langley argued that:

" diabetes mellitus was causally contributed to by an earlier

condition of pancreatitis which was determined to be related

to the applicant's service by a decision of the Repatriation

Commission in 1984. "

13. The Board accepted that there was a causal connection between the applicant's pancreatitis and his subsequent development of diabetes.

" This does not necessarily mean, however, that we are obliged

to conclude that the condition of diabetes mellitus is

war-caused. The only basis for that conclusion would appear to

be that because the applicant's pancreatitis has been

determined to be related to his service then the diabetes

mellitus must in turn be found to be war-caused. The

implication is that, because the Repatriation Commission has

accepted pancreatitis as a war-caused disability, that

should be the end of our enquiries if we accept the causal

connection between the pancreatitis and diabetes mellitus.

The above contention, however, raises another question.

When we are considering a chain of causation argument in

respect of a new claim for a separate disability, are we

prevented, or estopped, by the earlier Repatriation

Commission decision to accept pancreatitis as service

related, from examining that relationship question ourselves

and the facts pertaining to it? This question involves what

is known legally as issue estoppel. "

15. I interpolate to say there is some room for uncertainty as to what the Board meant by the "relationship question".

16. The Board, having concluded that issue estoppel did not apply to the Veterans' Review Board, considered that it had an entitlement to consider :

" ...all of the evidence before us and to 'attach appropriate

weight thereto' in our task of evaluating the suggested

chain of causation linking the claimed diabetes mellitus to

service through the connection with pancreatitis and its

relationship with service. At the same time, of course, our

purpose is not to assess 'the propriety' of the Repatriation

Commission decision to accept pancreatitis as service

related nor to disturb or question the applicant's right to

pension for that disability. "

After looking at the records relating to the 1984 determination that pancreatitis was war-caused, (which was based on the possibility that a personality disorder, aggravated by the conditions of his war service, lead to excessive alcohol consumption and to pancreatitis), and on reviewing that material, the Board found that it could not associate his alcohol dependency with his war service.

" It follows that we are unable to link his condition of

pancreatitis with his service. "

This finding is the opposite of the finding by the Commission in 1984.

18. The Board therefore concluded that the requisite reasonable hypothesis connecting his diabetes with the circumstances of his war service had not been raised, and it was satisfied beyond reasonable doubt that there was no sufficient ground for determining the applicant's diabetes was war-caused. It therefore confirmed the decision concerning diabetes then under review.

19. On 12 August 1991, Mr Langley applied to the Tribunal for a review of the Board's decision. On 28 February 1992, O'Connor J, President of the Tribunal, decided that there was no legal bar by way of jurisdictional limitation or estoppel which prevented the Tribunal from examining the facts underlying the 1984 determination that the applicant's pancreatitis was war-caused. While her Honour's conclusion refers to the "facts underlining the 1984 determination", O'Connor J had earlier defined the issue raised for preliminary decision as "whether the Tribunal is prevented or estopped from finding on review that the applicant's pancreatitis was not war-caused because of the earlier determination of the Repatriation Commission. "

20. The Tribunal, differently constituted, concluded (contrary to the finding of the Veterans' Review Board) that there did exist a reasonable hypothesis that the applicant's habit of drinking alcohol to excess was caused or contributed to by his war service. The Tribunal did not deal with the question whether the applicant's pancreatitis was or was not caused or contributed to by his war service. The Tribunal's conclusion against the veteran was on the basis that no reasonable hypothesis had been raised as to any link between his pancreatitis and his diabetes.

21. For the reasons earlier referred to, that conclusion was wrong and involved an error of law; indeed the Tribunal, in my opinion, was obliged on the evidence before it, on the premise that his pancreatitis was war-caused and having regard to the provisions of s. 120 of the 1986 Act, to grant the veteran's claim concerning diabetes.

22. Issue estoppel was not argued in this court as having any operation in the context of the Board's consideration of the 1984 determination that Mr Langley's pancreatitis was war-caused. The case for Mr Langley was based on an absence of power or jurisdiction in the Board, and thus in the Tribunal, to find that his pancreatitis was not war-caused.

23. The question is whether and in what circumstances it is competent for a Veterans' Review Board or the Tribunal to inquire into, and reach a finding contrary to, an earlier determination.

24. Section 14 of the Act permits a veteran to apply for a pension in respect of incapacity from a war-caused injury or war-caused disease. One of the obligations of the Commission is to determine whether the incapacity was war-caused: s. 19(3).

25. Section 135 provides, inter alia, that where a person who has made a claim for a pension under s. 14 is dissatisfied with any decision of the Commission in respect of the claim, "the person may, subject to the Act, make application to the Board for a review of the decision of the Commission. "

26. Section 139 provides:

" (1) On review of a decision, the Board shall have regard to

the evidence that was before the Commission when the

decision was made and to any further evidence before the

Board on the review that was not before the Commission,

being further evidence relevant to the review.

(2) It is the duty of the Board, in reviewing a decision of

the Commission, to satisfy itself with respect to, or to

determine, as the case requires, all matters relevant to the

review.

(3) For the purpose of reviewing a decision of the

Commission, the Board may exercise all the powers and

discretions that are conferred by this Act on the Commission

in like manner as they are required by this Act to be

exercised by the Commission, and shall make a decision, in

writing:

(a) affirming the decision under review;

(b) varying the decision under review; or

(c) setting aside the decision under review and making a

decision in substitution for the decision so set

aside.

... "

27. Ordinarily, an application to the Board for review has to be made within 12 months after service of a copy of the decision: s. 135(4).

28. Section 175(1) provides:

" Where a decision made by the Commission has been reviewed by

the Board upon a request made under section 135 and

affirmed, varied or set aside, then, subject to section 29

of the Administrative Appeals Tribunal Act 1975, application

may be made to the Administrative Appeals Tribunal for a

review:

(a) of the decision of the Commission that was so

affirmed;

(b) of the decision of the Commission as so varied; or

(c) of the decision made by the Board in substitution for

the decision so set aside;

as the case may be. "

29. Section 176(2) makes it plain that the Commission can appeal to the Administrative Appeals Tribunal, and in any appeal to the Tribunal, the Commissioner is a party to that appeal. Again there are time limits:

" For the purposes of the application of section 27 of the

Administrative Appeals Tribunal Act 1975 to and in relation

to a reviewable decision:

(a) if that decision is a decision of the Commission as

varied by the Board - the Commission shall be taken to

be a person whose interests are affected by that

reviewable decision; and

(b) if the Board has set aside a decision of the

Commission under section 19 or 31 of this Act and made

another decision in substitution for the decision so

set aside - the Commission shall be taken to be a

person whose interests are affected by the decision of

the Board to set aside the decision of the Commission

and by the decision of the Board made in substitution

for the decision so set aside. "

30. Section 31 provides for a review by the Commission. Subsection (1) permits the Commission to review a decision in the period in which application for review by the Board might be made, or, in those cases where such application has been made, before the determination of the review by the Board.

31. Section 31(2) provides for review by the Commission where an application to the Administrative Appeals Tribunal by a person other than the Commission for review of a decision by the Administrative Appeals Tribunal has been made but not yet determined.

32. Section 31(3) permits correction of a manifest error by the Board as to the date of operation of a decision.

33. Section 31(4) provides:

" Where the Commission is satisfied that evidence before the

Commission when it made a decision was false in a material

particular, the Commission may, in its discretion, review

the decision and, if it varies the decision, it may approve

as the date as from which the variation shall operate a

date, which may be a date before or after the commencement

of the review, considered by the Commission to be

appropriate in all the circumstances. "

34. Section 31(5) and (5A) is not presently relevant.

35. Section 31(6) provides:

" Where the Commission is satisfied that:

(a) having regard to any matter that affects the payment

of a pension or attendant allowance, being a matter

that was not before the Commission, the Board or the

Administrative Appeals Tribunal, as the case requires,

when the decision to grant the pension or attendant

allowance, or a decision to vary the rate of the

pension or attendant allowance, was made;

(my underlining)

(b) by reason of a refusal or failure of any person to

comply with a provision of this Act;

(c) by reason of a refusal or failure of a veteran to

comply with a notice served on the veteran under

subsection (5A) or with a request made under paragraph

32(1)(c); or

(d) by reason of the circumstances referred to in a

paragraph of section 24A being applicable to the

veteran;

in a case to which paragraph (a), (b) or (c) applies, a

pension or attendant allowance should be cancelled or

suspended or is being paid at a higher rate than it should

be or, in a case to which paragraph (d) applies, a pension

is being paid at a higher rate than it should be, the

Commission may, by determination in writing, cancel or

suspend or decrease the rate of the pension or attendant

allowance, or decrease the rate of the pension, as the case

may be, with effect, subject to subsection (7), from the day

on which the determination was made or such later day as is

specified in the determination. "

36. Section 31(6A) provides:

" Where the Commission is, under subsection (6), satisfied

that the rate of a pension payable to a veteran is higher

than it should be by reason that the degree of incapacity of

the veteran from war-caused injury or war-caused disease, or

both, is less than 10 per centrum (including nought per

centum), it shall cancel the pension that was payable to the

veteran. "

37. Section 31(6B) provides:

" The cancellation of a pension payable to a veteran under

subsection (6A) does not affect any decision of the

Commission, the Board or the Administrative Appeals Tribunal

that is in force determining that the veteran is suffering

from a war-caused injury or a war-caused disease, or both. "

38. Section 31(7), (7A), (8) and (9) is not presently relevant.

39. Section 31(10) provides:

" If the Commission refuses or fails to review, under this

section, a decision in relation to a pension or attendant

allowance, the refusal or failure is not subject to review

by the Board or by the Administrative Appeals Tribunal. "

40. Section 31(11) provides:

" A decision by the Commission upon its review under this

section of a decision in relation to a pension or attendant

allowance is not subject to review by the Board or the

Administrative Appeals Tribunal unless the Commission

cancels or suspends the pension or attendant allowance, or

varies the decision, reviewed by the Commission. "

41. I have set out these statutory provisions at length. In my opinion, there is no power in the Commission to reopen a determination that Mr Langley's pancreatitis was war-caused, other than in the circumstances that appear in s. 31(4) or (6). It is not suggested there was any false evidence before the Commission when that decision was made, nor that there later emerged "matters that were not before the Commission when the decision to grant that pension (for pancreatitis) was made".

42. The Board recognised that it had no power to interfere with the veteran's entitlement to a pension based on the determination of the Commission that his pancreatitis was war-caused.

43. If there is power to re-examine an earlier determination, of course procedural fairness would require timely advance notice of the intention to re-examine the earlier determination and adequate opportunity to address the evidentiary questions raised in such a task.

44. There are, however, compelling practical reasons against such a power.

45. It is not uncommon for rational people to disagree on a question of fact. This case provides an example. The Commission in 1984 concluded, applying the relevant test, that Mr Langley's pancreatitis was war-caused; the Board in 1991 concluded that it was not war-caused; later, in 1992 the Tribunal concluded that it was. In my opinion, it would be corrosive of administration efficiency in decision making and would engender a sense of grievance in the public generally if an earlier determination might at any time subsequently be overruled simply because somebody reached a different view.

46. Secondly, the one certain fact in life is death, even for medical witnesses. Over time, evidence fades, documents are lost and the ascertainment and proof of facts becomes harder. How unfair would it be if a long accepted disability could be challenged afresh, when the means of re-verification have withered?

47. It is therefore necessary to look with some particularity at the function of the Board and the Tribunal. The Tribunal cannot have its powers widened because the Board had earlier arrogated to itself powers which it did not have.

48. In my opinion the majority in Repatriation Commission v. O'Brien [1985] HCA 10; (1984-1985) 155 CLR 422 concluded that the Tribunal had no power to entertain an already determined connexion between the applicant's neurosis and his war service. I can see no basis for distinguishing O'Brien's case here.

49. In O'Brien, Repatriation Boards in 1961 and 1970 had accepted that Mr O'Brien had an anxiety neurosis due to war service and had assessed his disability. Those determinations were not challenged on appeal nor were they reviewed by the Repatriation Commission nor made the subject of any reference by the Repatriation Review Tribunal. In 1974 Mr O'Brien sought a pension because of essential hypertension, claiming that his essential hypertension was related to his accepted neurotic disability.

50. In the Tribunal two fundamental issues were litigated. The first was whether an admitted condition of the applicant described as anxiety neurosis or anxiety hysteria had arisen out of or was attributable to his war service. The second was as to the connexion, if any, between that anxiety state and the essential hypertension the subject of the claim.

51. The matter got to the Tribunal as the result of a direction by the President of the Administrative Appeals Tribunal in accordance with s. 107VZZB(8) that the Tribunal review the five decisions of the Commission which had rejected Mr O'Brien's claim based on essential hypertension.

52. Contrary to the findings by the Repatriation Boards in 1961 and 1970 that the applicant had an anxiety neurosis due to war service, the Tribunal found:

" If the applicant developed or there was aggravated an

existing condition of anxiety state during or after the

period of his war service, it did not arise out of nor was

it aggravated by nor attributable to his war service within

the meaning of that expression in the Act, s. 100. "

53. The majority (Gibbs CJ, Wilson and Dawson JJ) held:

" The question of a connexion between the respondent's anxiety

neurosis and his war service fell outside the terms of the

reference to the Administrative Appeals Tribunal and should

not have been entertained by it at all. "

54. It is suggested that the means by which the matter came before the Administrative Appeals Tribunal is a point of distinction in O'Brien's Case. However, what was in fact before the Tribunal, referred to it by the President of the Tribunal pursuant to the requirements of s. 107VZZB(8), was the decisions (five in number), of the Commission whereby Mr O'Brien's claim for a war pension based on his essential hypertension was rejected. That claim to a pension because of essential hypertension was based on an asserted connexion between that condition and his accepted neurotic disability.

55. In this case the decision for review by the Board and later by the Tribunal was Mr Langley's claim for a war pension based on his diabetes. Mr Langley claims that his diabetes is causally related to his accepted disability of pancreatitis with pseudocyst and surgery.

56. In the same way that the High Court concluded that it was not open for the earlier decisions concerning Mr O'Brien's anxiety neurosis to be reviewed and reversed in the course of considering his claim based on his hypertension, in my opinion, it is not open to the Board nor the Tribunal to review and reverse the determination made that Mr Langley's pancreatitis was war-caused in the course of considering his claim based on his diabetes.

57. The majority (at 429) concluded that the issue whether Mr O'Brien's anxiety neurosis had arisen out of or was attributable to his war service was an issue:

" ...which the A.A.T. had no power to entertain. The real

issue was the connexion, if any, between the accepted

disability of anxiety neurosis and the essential

hypertension. It was not suggested by the respondent that

there was any other basis on which he could claim his

hypertension was attributable to his war service. "

58. The position in relation to Mr Langley's diabetes and his disability of pancreatitis, in my opinion, is precisely the same.

59. In O'Brien, the disagreement between the majority and the minority was primarily on whether the evidence before the Tribunal permitted it to conclude adverse to the veteran, having regard to the onus of proof provisions.

60. Brennan J, who was in the minority on this aspect of the matter, said at 446:

" Had it been necessary to decide the question, it seems to me

that there are difficulties in the way of holding that an

unreviewed Board decision accepting a condition as being

attributable to war service is binding on the A.A.T. when it

is reviewing a decision made on a claim in respect of a

different condition. No issue estoppel arises, nor does a

finding in the later proceedings affect an entitlement

flowing from the earlier finding. "

61. The view presently espoused by the Commission is consistent with the minority view just expressed. The consequence of that view, namely, that the Board would be entitled to review the 1984 determination and conclude that the diabetes was not war-caused because the pancreatitis was not war-caused, yet the entitlement to a pension in respect of incapacity caused by the pancreatitis would not be disturbed, would be a most unsatisfactory feature of the administrative review system. The public is entitled to say, "if a veteran is entitled to a pension, he should be paid it; if he is not entitled to a pension, he should not be paid it".

62. Sprod v. Repatriation Commission (1985) 2 RPD 504 followed O'Brien's Case. In that case, Lockhart J said at 518:

" The decision of a Repatriation Board of 15 July 1971

accepted the incapacity of the appellant from psychoneurotic

reaction as necessarily involving the finding that the

appellant's anxiety state or stress was related to or

connected with his war service. This relationship between

the appellant's condition of stress as being war related was

assumed at all relevant stages of the process which led to

the review of the Commission's decision of 15 October 1975

by the A.A.T. It was not the subject of challenge and was

not a matter included within the reference to the President

of the A.A.T. from the President of the Repatriation Review

Tribunal. In my view the A.A.T. had no jurisdiction to

review that particular matter. Yet it is plain that the

A.A.T. did regard as an issue before it whether the stress

or psychoneurotic reaction suffered by the appellant was

attributable to war service. The A.A.T. should have

accepted that the appellant's anxiety state or stress was

attributable to or aggravated by his war service. If this

had been accepted then the question before the A.A.T. would

have been whether there existed the requisite connection

between that state of stress and the hypertension which

formed the basis of the appellant's claim under the Act.

This is an independent reason for allowing the appeal. "

63. In Sprod, the decision of the Commission was a decision to reject a pension for incapacity from high blood pressure, in circumstances where the veteran claimed that the high blood pressure was the result of his accepted disabilities. In rejecting the claim, the Commission accepted that:

" Essential hypertension has not been caused by the effects of

or the treatment for the appellant's accepted service

related disability 'nervous condition'. "

64. That was the decision that was referred by the President pursuant to s. 107VZZB(8).

65. In this case the decision of the Commission was that Mr Langley's diabetes was not causally connected to his accepted disability of pancreatitis. His claim for pension for incapacity based on diabetes was rejected, the diabetes not being war-caused in the opinion of the Commission, because there was the lack of connexion between his pancreatitis and his diabetes. It was that decision which was to be reviewed by the Board and by the Tribunal.

66. There is, in my respectful view, no difference to be derived from the terms of the reference of the President pursuant to s. 107VZZB(8). That there is no limitation or restriction as to what the Tribunal might do on a review directed under that section imposed by the terms of the reference is plain from the terms of the section.

" At any time after the receipt by the President of the

Repatriation Review Tribunal of an application for a review

by that Tribunal under Part IIIA of a decision of the

Commission, the President may, if he considers that the

decision involves an important principle of general

application with respect to entitlement to, or assessment

of, pension under this Act, refer the decision to the

President of the Administrative Appeals Tribunal, together

with a statement of his reasons for so concluding, with a

request for a review of the Tribunal of that decision. "

" Where the President of the Administrative Appeals Tribunal

receives a request under sub-section (1) or (7) for a review

by that Tribunal of a decision, he shall -

(a) direct the review by that Tribunal, in accordance with

the Administrative Appeals Tribunal Act 1975, of that

decision; and

(b) notify the President of the Repatriation Review

Tribunal accordingly. "

68. In my view s. 31 provides a mechanism by which a veteran's entitlement to a pension or the quantum of it can be re-opened. Absent the application of those procedures and absent an appeal in the manner and in the time prescribed by the Act, in my view the Board does not have power to examine the correctness of an earlier determination and consequently neither does the Tribunal.

69. For these reasons, in my opinion, neither the Veterans' Review Board nor the Administrative Appeals Tribunal had power to entertain the already determined connection between Mr Langley's pancreatitis and his war service.