Webb, W.F. v. The Repatriation Commission [1988] FCA 127

Federal Court of Australia|1988-03-30|Before: Foster JJ, Davies J, Dawson JJ

Davies J: This is an appeal from an order of a single Judge of this court which set aside a decision of the Administrative Appeals Tribunal and remitted the matter to the Tribunal for

The appeal raises issues as to the standard of proof

established by s.120 of the Veterans' Entitlements Act 1986

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

(3) In applying sub-section (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 ta service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no

(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

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.

(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on -

(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit,

(b) the Commonwealth, the Department or any other person in relation to such a claim or application,

any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.

Section 120(1) is substantially similar in terminology

to the earlier s.47(2) and s.107VH(2) of the Repatriation Act

1920 (Cth), the meaning of which was considered and enunciated by

the High Court of Australia in Repatriation Commission v. Law

(1981) 36 A.L.R. 411 and in Repatriation Commission v. O'Brien

(1984) 155 C.L.R. 422. Of these provisions, Gibbs C.J., Wilson

and Dawson JJ. said in O'Brien's case, at pP.127-8:-

"When regard is had to these considerations, it seems to us to be impossible to lay down the law by saying that if the material in a particular case does not provide some positive inference in favour of the requisite connection between death or incapacity and war service then the Commission or Review Tribunal as the case may be must be satisfied beyond reasonable doubt that there are insufficient grounds to grant the claim. To require the material to satisfy any prescribed test expressed in positive terms in favour of granting a claim tends to undermine the ''heavy burden of disproof' (per Toohey J in Law (1980) 29 ALR 64 at 74, citing Edmund Davies J in Coe v Minister of Pensions and National Insurance [1967] I QB 238 at 242). Of course, it wi é seldom that the evidence will be left in such an unsatisfactory state as to fail to yield some indication of the strength or otherwise of a connection between the death or incapacity and the war service. That indication will ordinarily be supplied by evidence as to the cause of the death or incapacity, including the nature of any relevant disease and the circumstances which may give rise to it, all of which may then be examined in the context of the history of the member's war service. But where the accepted material falls short of addressing any or all of those questions - indeed, whatever the state of the evidence may be - at the end of the day there is only one question for the determining body to answer: is it satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the claim? That is the test for which the Act provides and we do not think it is helpful to attempt to clarify it or improve upon it by suggesting another form of words to express its meaning and effect. Any such attempt is more likely to mislead.

... Two matters should however be made clear. The first

-is that although their Honours spoke [in the judgment

under appeal] of the disproof of a fact, s 47(2) does not require the Tribunal to grant a claim unless it is satisfied beyond reasonable doubt of the non-existence of every evidentiary fact. The question for the Tribunal is whether it is satisfied, beyond all reasonable doubt, that there are insufficient grounds for granting the claim; it will disallow a claim if it is satisfied beyond reasonable doubt that 'any fact necessary to establish entitlement' (Law, at (36 ALR) 424; (147 CLR) 652) does not exist. Secondly, it remains the duty of the Tribunal to decide questions of credibility even where the witnesses who are in conflict are expert witnesses, for example, where a challenge is made to the standing or expertise of the expert in question or when the basis of the expert's opinion is destroyed in cross - examination."

Two points in their Honours exposition may be noted, the

first being that ss. 47(2) and 107VH(2) of the Repatriation Act

did not require that there be material providing "some positive inference in respect of the requisite connection between death or incapacity in war service" and the second being that a claim would be disallowed if the Commission or the Review Tribunal was satisfied beyond reasonable doubt that any fact necessary to

The present legislation, by s.120(3), now requires that there be a reasonable hypothesis as to the requisite connection between death or incapacity and war service. The meaning of $.120(3) was considered by Jenkinson, Neaves and Wilcox JJ. in

East v. Repatriation Commission (1987) 74 A.L.R. 518. Their

Honours gained assistance from the dissenting jugment of Brennan J. in O'Brien's case and cited this passage from his Honour's

"Section 47 thus operates in a context where an investigation has been carried out with reasonable diligence and where all the relevant facts ascertained in the investigation and furnished by the claimant are before the decision-maker. If the facts thus ascertained support a reasonable hypothesis that the claimant is entitled to a benefit under the eligibility provisions of the Act, the Board or the Commission must determine to grant the claim. If a reasonable hypothesis of entitlement arises on some of those facts, the Board or Commission must determine to grant the claim unless other facts dispel the hypothesis beyond reasonable doubt. If the Board or Commission is - satisfied that no reasonable hypothesis of entitlement is supported by the facts or that any such reasonable hypothesis is dispelled beyond reasonable doubt, the Board or Commission should reject the claim. Where, on the whole of the material no reasonable hypothesis of entitlement arises, there are ''insufficient grounds for granting the claim'."

",.. The adoption of Brennan J's notion of a reasonable hypothesis meant that Parliament was requiring something by way of causal link, but which fell short of proof of the link - even prima facie - as a fact. The meaning of the phrase 'reasonable hypothesis' was felicitously explained by a Veterans' Review Board in Stacey (Nos V83/0396, V84/0821 and V28/072); words quoted by the Administrative Appeals Tribunal in Re Dell and Repatriation Commission (1986) 9 ALD 596 at 615:

'A hypothesis may be conveniently defined as: 'proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption': The Concise Oxford Dictionary.'

We agree with this analysis. A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities."

Section 120(3) thus requires there to be material which postulates a reasonable theory or hypothesis positively connecting the claimant's incapacity or death with his war service. But that is not to say that s.120(1) is otiose or has

no work to do. Indeed, the legislative terms which were

considered in Law's case and O'Brien's case were re-enacted in

s.120(1) after both those decisions had been given. Section 120(1) establishes the primary standard with respect to matters of fact, that is to say that if there be doubt as to the ~ existence of a crucial fact, the claimant has the benefit of that doubt unless the non-existence of that fact is established beyond reasonable doubt. The requirement in s.120(3) of a reasonable hypothesis is not a requirement that facts must be established

positively in the claimant's favour. Section 120(3) operates in

the light of the standard established by s.120(1), notwitstanding

that it requires that on the whole of the material there must be a reasonable theory or hypothesis connecting the incapacity or

Necessarily, a theory or hypothesis which 1s otherwise reasonable may be dispelled or brought to nought if there be proof beyond reasonable doubt that one of the facts, which according to the theory or hypothesis is essential to the connection postulated, does not exist. As Brennan J. said in the

"If a reasonable hypothesis of entitlement arises in some of those facts, the Board or Commission must determine

to grant the claim unless other facts dispel the othesis beyond reasonable doubt.

Take, for example, a case where there was a reasonable theory or hypothesis connecting the development of a cancer, the subject of a claim, with an injury which was alleged to have occurred during war service. If it were proved beyond reasonable doubt that that injury had in fact occurred, not during war service, but shortly after war service ended, that proof would

bring the otherwise reasonable hypothesis to nought.

The consideration of proof may take place wholly within the confines of s.120(3). But it would not be incorrect for the Repatriation Commission or a Review Tribunal to consider such a matter of pure fact, distinct from medical theory, simply under the terms of s.120(1). Thus, in the instance I have earlier outlined, 1£ the Repatriation Commission or a Review Tribunal ©

were satisfied beyond reasonable doubt that the injury which the

theory or hypothesis reasonably connected with the claimant's incapacity or death had occurred not in but outside war service,

it could dismiss the clazm under the general provisions of

s.120(1) on the footing that a fact essential for the applicant's

terminology used by the Tribunal in its ultimate finding. The

"11. On the whole of the material before us, we find an hypothesis raised which is in no way irrational, and is in apparent accordance with lay, and some experienced medical opinion, over many years - that trauma can contribute to the onset of some forms of cancer; viz that the trauma involved in Mr. Webb's being hit severely in the upper arm in 1942 during his war service is connected with the causation either of the development initially of the chronds-sarcoma which was diagnosed in 1983 or the aggravation of a benign tumour existing to the point of its becoming malignant. We do not find on consideration of the whole of the material before us that that hypothesis has been dispelled beyond reasonable doubt; and therefore must under sub-section 120(1) of the Act make a determination in the

The learned Judge concluded that, in that finding, the Tribunal had required the Repatriation Commission to dispel

beyond reasonable doubt an hypothesis relied upon on behalf of Mr-

"In the passages cited from the Tribunal's reasons which have been emphasised, it appears that the Tribunal interpreted s.i20 as requiring the Commission to dispel beyond reasonable doubt the hypothesis relied upon by the respondent. With all respect, this cannot be a correct construction of s.120. It is true that s.120(1), in laying down a general standard of proof, requires the Commission to determine that the injury was war-caused unless satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. It may be accepted that, by virtue of s.120(3), the test prescribed by s.120(1) will be

satisfied if the Commission is of the opinion that the whole of the material raises a reasonable hypothesis which connects the disease and war service. But neither expressly nor by implication does s.120, in any of its provisions, require the Commission to rebut an hypothesis beyond reasonable doubt. Rather, the legislation proceeds upon the assumption that the circumstances will indicate whether or not the hypothesis advanced has a rational foundation. If such a foundation exists, a claimant will be entitled to pension. But neither the claimant nor the Commission

bears the onus of establishing its rationality or its

imposing on the Commission the burden of disproving

beyond reasonable doubt that the hypothesis advanced was

'reasonable'. Rather, the question is whether, in the

Commission's, or, on review the Tribunal's, opinion, the

hypothesis advanced by the claimant is reasonable or

His Honour was undoubtedly right in his interpretation of the s.120(3). However, the issue in the appeal is not as to that but as to whether his Honour drew a correct inference that the Tribunal required the Repatriation Commission to dispel beyond reasonable doubt an hypothesis raised on behalf of Mr

The language used by the Tribunal was unfortunate and one must have sympathy for the view which his Honour took. On the whole, however, I have come to the conclusion that the Tribunal did not undertake the mental process which his Honour attributed to it but rather, in the first sentence of paragraph 11 of its reasons, expressed its finding that on the whole of the material before it there was a reasonable hypothesis connecting his incapacity to his war service and, in the second sentence, expressed its view that no fact essential to that hypothesis had

been disproved beyond reasonable doubt and therefore that, by

reasons of the terms of s.120(1) of the Act, Mr Webb was entitled

There are a number of matters which lead me to that view. The first is that at the commencement of its reasons the

"The issue posed by the evidence put before the Tribunal and the submissions thereon, is as to whether a reasonable hypothesis has been raised on the whole of the material put before the Tribunal, as to a connection between a trauma on the applicant's war service during an incident in which he was hit with a rifle-butt on the arm, and the development of chondro-sarcoma of the right humerus - either by initial causation of malignancy or aggravation to an existing benign tumour in the humerus to the point of its becoming malignant. Unless such a reasonable hypothesis is found to be raised, the Tribunal is required by the Veterans' Entitlements Act 1986 ('the Act') to find that it is satisfied beyond reasonable doubt that there are no sufficient grounds for determining that the injury the subject of claim is a war-caused injury [sub-section 120(3)]. If sucha reasonable hypothesis be shown, and not dispelled on the whole of the mater1al beyond reasonable doubt, the applicant is entitled to the determination sought."

This statement indicates that the Tribunal was looking at the matter as a two stage process, namely the first being to ascertain whether there was a reasonable hypothesis and the second, if that were answered in the claimant's favour, being to ascertain whether or not some fact necessary for that hypothesis had been disproved beyond reasonable doubt. The Tribunal expressed this with unhappy language but I think that overall the meaning of the passage is clear. The Tribunal set itself first the task of ascertaining whether a reasonable hypothesis had been raised on the whole of the material put before it and that was

The second factor is that the Tribunal did not use the expression "hypothesis relied upon by the respondent (Mr Webb)" or "the hypothesis advanced by the claimant (Mr Webb)". It was fundamental to the view taken by the learned Judge that the Tribunal had required the Repatriation Commission to dispel an hypothesis put forward on behalf of Mr Webb. However, the

Tribunal did not express its reasoning in those terms.

The third factor is that, in its reasons, the Tribunal did not set up evidence on one side to see whether it had been destroyed by evidence given on the other, but fairly dealt with the facts as they were known to the Tribunal and with medical opinions expressed by all of the relevant medical practitioners. That was the approach which would have been taken had the Tribunal correctly gone about its task to ascertain whether on the whole of the material before it a reasonable hypothesis was

raised connecting the claimant's incapacity with has war service.

Fourthly, the Tribunal expressed 1ts conclusion in the first sentence of paragraph 11 in terms which leave me with the impression that it took into account the whole of the material before it came to the decision on that material that there was a reasonable hypothesis. The Tribunal referred particularly to three points, namely, that the hypothesis raised by the material was not irrational, that it was in accordance with lay opinion and that it was also in accordance with some experienced medical opinion. I take the reference to lay opinion to be an oblique reference to the approach to medical problems enunciated in

Adelaide Stevedoring Company Limited v. Forst (1940) 64 C.L.R.

538, particularly by Rich A.C.J. at pp.563-4. At p.564, Rich A.C.J. referred to "the presumption which flows from the observed sequence of events" and said "... while sc1ence presents us with no more than a blank negation, we can only await its positive results and in the meantime act on our own intuitive inferences". The drawing of such an inference in Mr Webb's case was an appropriate matter for consideration as Mr Webb had received a blow on his arm during his war service, for which he had had treatment during his war service, and had ongoing problems with his arm thereafter until, ultimately, cancer developed at the site of the blow. As the Tribunal drew its own common sense inference from the sequence of events, it follows that the Tribunal considered for itself whether the whole of the material before it raised a reasonable hypothesis as to the connection

The last matter I take into account is s.120(6) of the Act which specifically provides that no onus lies upon the Repatriation Commission or any other party. To conclude that the Tribunal placed the Repatriation Commission under an onus would be to conclude that the Tribunal failed to read or overlooked the

provisions of s.120(6), a conclusion which ought not lightly to

For these reasons, I have concluded that the Tribunal did not place the Repatriation Commission under any onus but fairly looked at the evidence before it and came to its own view that on the whole of that material a reasonable hypothesis

connecting Mr Webb's incapacity with his war service was raised.

The Tribunal's statement in the second sentence of Paragraph 11 that, "We do not find on the consideration of the whole of the material before us that the hypothesis has been dispelled beyond reasonable doubt" was, I think, a statement made out of abundance of caution to express the point that a reasonable hypothesis may be dispelled when a necessary fact is shown beyond reasonable doubt not to exist. That view needed no more than the half sentence that the Tribunal gave to it for there was no other matter of fact, outside the matters which the Tribunal had discussed when dealing with the hypothesis, which may have called for consideration. It is worth noting that the half-sentence I have mentioned appears in the sentence which specifically refers to s.120(1), which is perhaps a positive indication that the Tribunal in this sentence had turned its

As a secondary point, Mrs Flemming Q.C., senior counsel for the Repatriation Commission, submitted that the Tribunal and the learned Judge had fallen into error by equating the adjective "reasonable" with the adjective "rational". In paragraph 11 of its reasons, the Tribunal found "an hypothesis raised which 1s in no way irrational". His Honour's reasons used the tetms "rational", "rationally", "rationality", and "irrational." In

East v. Repatriation Commission the Court referred to the

statement that "... to be reasonable, an hypothesis must possess some degree of acceptability or credibility - it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous." Those adjectives are useful but, like Mrs Flemming, I would eschew any attempt to substitute another

term for the term "reasonable". That word means what it says and

it is not to be defined. In my opinion, however, neither the

learned Judge nor the Tribunal intended to equate the word "reasonable" with "rational". In stating that the hypothesis was not "irrational", the Tribunal was simply using one of the adjectives which is commonly used to explain the conclusion that the hypothesis raised on the whole of the material before it was

For those reasons, therefore, I would allow the appeal and in lieu of the order made by the learned Judge I would substitute an order that the appeal to the Federal Court of Australia be dismissed. The respondent, the Repatriation Commission, should pay the costs of the appellant, William Francis Webb, of this appeal and of the proceedings before the

I certify that this and the 12 preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Davies.

with Mr H. Bleicher Solicitors for the appellant: Legal Aid Commission of NSW

Counsel for the respondent: Mrs P. Flemming QC with Mr A. Robertson

Solicitor for the respondent: Australian Government Solicitor

) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G466 of 1987 ) )

MORLING J.: I have reached the conclusion, after much hesitation, that this appeal should be allowed. Beaumont J. was of the opinion that the Tribunal interpreted s.120 of the Veterans' Entitlement Act 1986 ("the Act") as requiring the Repatriation Commission to dispel beyond reasonable doubt the hypothesis relied upon by the appellant, i.e. the hypothesis as to a connection between the trauma during the appellant's war service and the development of chondro-sarcoma of his right humerus. I agree with Beaumont J's conclusion that such an interpretation of the section would be erroneous. My initial reading of the Tribunal's reasons led me to share Beaumont J's opinion that the Tribunal did, indeed, place such an interpretation upon s.120. The inclusion in its reasons of

the statement that if a reasonable hypothesis of the kind just

mentioned was "not dispelled on the whole of the material beyond reasonable doubt, the applicant is entitled to the determination sought" was calculated to lead the reader to interpret its reasons as Beaumont J. did. The likelihood of this occurring was enhanced by the inclusion of the statement later in its reasons that: "we do not find on consideration of the whole of the material before us that that hypothesis has been dispelled beyond reasonable doubt; and therefore must

under sub-section 120(1) of the Act make a determination in the

However, I have come to the view that the Tribunal was not intending to convey that s. 120 of the Act placed any onus on the Commission. Section 120(6)(b) of the Act provides that nothing in the section or in any other provision of the Act shall be taken to impose on the Commonwealth, the Department, Or any other person in relation to a claim for a pension any onus of proving any matter that might be relevant to the determination of the claim for a pension, It is difficult to suppose that the Tribunal could have been ignorant of this provision or, knowing of it, failed to apply it. I have come to the conclusion that the passages in the Tribunal's reasons to which I have referred are explicable in the manner indicated by Davies J. in his reasons, which I have had the benefit of

reading. Accordingly, the appeal should be allowed.

By its Notice of Cross-Contention the respondent argued that an error of law was discernible in the following

Passage in the Tribunal's reasons: "On the whole of the

material before us, we find an hypothesis raised which 1s in no way irrational and is in apparent accordance with lay, and some experienced medical opinion, over many years - that trauma can

It was submitted that it could be seen from this passage that the Tribunal took the view that a reasonable hypothesis is the same as an hypothesis which has a rational foundation, and that this was an error of law. I do not thank this interpretation of the Tribunal's reasons is borne out when they are read as a whole. At the commencement of its reasons the Tribunal made plain that the issue posed for its determination was whether a reasonable hypothesis had been raised on the whole of the material as to a connection between the trauma on the appellant's war service and the development of the chondro-sarcoma of his right humerus. The subsequent statement that the hypothesis was "in no way irrational" amounted to no more than a statement that one of the reasons which led it to find that the hypothesis was reasonable was that it was not irrational. In the same way, the statement that the hypothesis was "in apparent accordance with lay, and some experienced medical opinion" amounts to no more than a statement of another reason which led the Tribunal to reach its conclusion as to the reasonableness of the hypothesis.

I certify that this and the three (3) preceding pages are a true copy of the Reasons for Judgment of his Honour Mr Justice Morling.

CORAM: DAVIES, MORLING and FOSTER, JJ. DATE: 30 MARCH, 1988.

FOSTER, J.: In my opinion, the appeal should be upheld. I agree, with respect, with the construction of s. 120 of the

Veterans' Entitlement Act, 1986 (Cth) ("the Act") enunciated by

Davies, J. in his Reasons for Judgment, which I have had the

benefit of reading. I add the following comments of my own,

On an initial reading of the section, I was somewhat attracted to the view that s. 120 (3) is intended to be a full and exclusive exposition of the circumstances in which the Commission is to be satisfied beyond reasonable doubt that there is no sufficient ground for a determination that the

injury, disease or death of a veteran, as the case may be, was

war caused within the meaning of the Act. However, an examination of the history of the legislation and the relevant authorities satisfies me that s. 120 (1) is intended to do more work than merely serve as an introduction to the provisions of s. 120 (3). The combined effect of the two sub-sections is, in my view, that the basic factual material, the data, upon which the reasonable hypothesis referred to in s. 120 (3) may or may not be raised, must, at the end of the day, be found by the Commission to exist, unless its existence is negatived beyond reasonable doubt; the hypothesis or theory of connection between the veteran's service and his injury, disease or death, postulated upon this data 1s not required to be established to any degree of proof commonly referred to in the law. It is merely required that the hypothesis be reasonable, not fanciful or unreal, and that it be "pointed to by the facts, even though not proved on the balance of probabilities." (East v.

Repatriation Commission [1987] 7 A.L.R. 518 at 534). It is

thus clear that it is quite incorrect to speak of any

legislative requirement that a veteran's claim should succeed

unless a hypothesis so raised be "dispelled beyond reasonable

In any given case, s. 120 requires, in my view, that the Commission survey the whole of the relevant material before it and determine whether there is established a basic foundation of fact upon which the required hypothesis of connection can be raised. In determining whether this foundation exists, it applies the prescribed "heavy burden of

disproof" (per Toohey, J. Law v. Repatriation Commission [1980]

29 A.L.R. 64 at p. 74). The Commission then must determine whether, upon the foundation so established, the reasonable hypothesis of connection is raised. This determination may involve simply a process of bare reasoning from this foundation

of fact (cf Adelaide Stevedoring Co. Ltd. v. Forst [1940]

64 C.L.R. 538 pp 563-4) or may require the consideration of competing propositions as to the connection or lack of it advanced by way of expert medical testimony; or both. It is quite clear that into this area of deliberation there must not intrude any question of onus of proof in the accepted sense of either the veteran or the Commission bearing an overall burden of proof in the case; nor of any particular standard of proof, let alone one of disproof to the criminal standard of a

I consider, with respect, that this analysis accords generally with that adopted by Beaumont, J. His Honour was of the view that the Tribunal had adopted a different and erroneous construction of the section requiring the Commission to disprove, beyond reasonable doubt, the hypothesis of connection between the incident of trauma during the Appellant's war service and the subsequent development of the malignancy in his right humerus. With considerable hesitation I have come to the view that his Honour was mistaken in his interpretation of the Tribunal's reasons. I have come to the conclusion, for the reasons given by Davies, J. that, despite its unfortunate choice of language, the Tribunal was in fact enquiring as to whether any basic facts necessary to ground the

hypothesis had been "dispelled beyond reasonable doubt" and not

as to whether the relevant hypothesis had been so dispelled.

I am also of the view that, in its reasons, the Tribunal was not seeking to impose, contrary to s. 120 (6)(b)

As to the submission raised by Notice of Cross Contention that the learned trial judge and the Tribunal were un error in, in effect, holding that a reasonable hypothesis was the same as one having a rational foundation or being founded in reason, I consider that this should be rejected for

Repatriation Act 1920(Cth)

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