CATCHWORDS

ADMINISTRATIVE LAW - Procedural Fairness - whether  Administrative Appeals Tribunal erred in admitting Repatriation Medical Authority statement of principles into evidence - whether Tribunal applied the correct standard of proof.

Veterans' Entitlements Act 1986 (Cth): ss9, 44(1) 120(4), 120B(3), 196B(2)

Veterans' Affairs (1994-5 Budget Measures) Legislation Amendment Act 1994 (Cth): s196A(1)

Administrative Appeals Tribunal Act 1975 (Cth): ss33, 44(1)

PQ v Australian Red Cross Society [1992] 1 VR 19; referred to.

Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1; referred to.

Fletcher v Commissioner of Taxation (1988) 19 FCR 442; applied.

Opitz v Repatriation Commission (1991) 29 FCR 50; applied.

GEORGE CASEY v THE REPATRIATION COMMISSION

No NG 455 of 1995

CORAM:  HILL J

PLACE:  SYDNEY

DATED:  25 OCTOBER 1995

IN THE FEDERAL COURT OF AUSTRALIA  )

                                   )

NEW SOUTH WALES DISTRICT REGISTRY  )     No NG455 of 1995

                                   )

GENERAL DIVISION                   )

        ON APPEAL FROM THE VETERAN'S DIVISION OF THE

               ADMINISTRATIVE APPEAL TRIBUNAL

              BETWEEN:      GEORGE CASEY

                             Applicant

                  AND:      THE REPATRIATION COMMISSION

                             Respondent

CORAM:    HILL J

PLACE:    SYDNEY

DATED:    25 OCTOBER 1995

                      MINUTES OF ORDER

THE COURT ORDERS THAT:

     1.   Application dismissed.

     2.   Applicant to pay the respondent's costs.

     3.   Order 2 is stayed for 7 days pending any submission which the parties may seek to make in writing in that time as to the question of costs.

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

IN THE FEDERAL COURT OF AUSTRALIA  )

                                   )

NEW SOUTH WALES DISTRICT REGISTRY  )     No NG455 of 1995

                                   )

GENERAL DIVISION                   )

        ON APPEAL FROM THE VETERAN'S DIVISION OF THE

               ADMINISTRATIVE APPEAL TRIBUNAL

              BETWEEN:      GEORGE CASEY

                             Applicant

                  AND:      THE REPATRIATION COMMISSION

                             Respondent

CORAM:    HILL J

PLACE:    SYDNEY

DATED:    25 OCTOBER 1995

                    REASONS FOR JUDGMENT

          The applicant, Mr Casey, appeals from the decision of the Administrative Appeals Tribunal so far as the Tribunal determined to affirm the decision of The Repatriation Commission ("the Commission") adverse to Mr Casey, that hypertension and artherosclerotic ischaemic heart disease suffered by him was not war caused.

          Mr Casey had applied for a pension under the Veterans' Entitlements Act 1986 (Cth) ("the Act") on the basis of hypertension, artherosclerotic ischaemic heart disease and osteoarthritis in his hips.  Entitlement to the pension depended upon whether each of the conditions which he suffered was "war caused" within the meaning of s9 of the Act.  It was common ground before the Tribunal that if Mr Casey's essential hypertension was found to be due to war service, it would
follow that his artherosclerotic ischaemic heart disease would likewise be accepted as having been brought about by war service.

          Before the Tribunal Mr Casey was successful in persuading the Tribunal that the osteoarthritis which he suffered in his hips was, on the balance of probabilities, war caused.  That was not at issue in the appeal.

          It was common ground that the appeal to this Court brought by Mr Casey was an appeal on, that is to say limited to a question of law: s44(1) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act").  Two errors of law were said to have arisen.  First, it was submitted that the Tribunal had erred in admitting into evidence (over the objection of counsel for the applicant) a statement of principles relating to hypertension and artherosclerotic ischaemic heart disease promulgated by the Commission's medical authority, pursuant to s196B(2) of the Act.  The second alleged error of law was said to arise from the acceptance by the Tribunal of the evidence of an expert witness for the Commission, Professor Blacket, on the question of the contribution of prolonged stress to essential hypertension when that opinion was concerned, so it was submitted, with proof to a scientific standard rather than in accordance with the test prescribed by s120(4) of the Act.

          Other matters raised in the Notice of Appeal were not argued.

          It is convenient to consider the two matters in turn.

THE ADMISSION OF THE STATEMENT OF PRINCIPLES

          Part XIA of the Act dealing with the Repatriation Medical Authority was inserted into the Act by Act No.98 of 1994, assented to on 30 June 1994.  By s196A(1) as inserted, there was established a Repatriation Medical Authority upon which was imposed an obligation under s196B to determine statements of principles in respect of certain kinds of injury, disease or death.  The membership of that Authority comprises a chairperson and four other members, all of whom must be registered medical practitioners or medical scientists with at least ten years' experience.  At least one of the members must have five years' experience in the field of epidemiology: s196L.  The Authority may conduct investigations into particular injuries, diseases or deaths, but may also engage consultants to provide expert advice to it: cf s196U of the Act.

          Once a statement of principles in respect of a particular disease, for example, has been determined, the principles are given statutory significance by the provisions of s120B(3) of the Act which, speaking broadly, have the
effect that for the purposes of s120(4) of the Act a disability will be taken as being war caused if a relevant statement of principles says that it is.  However, s120B applies only to claims made after 1 June 1994.  Mr Casey's claim was made earlier than that date with the consequence that the statement of principles promulgated by the Repatriation Medical Authority has not the evidentiary significance given to it by s120B.  So much was understood by the Tribunal and was common ground before me.

          On the first day of the hearing, various witness statements were tendered prior to some of the witnesses giving oral evidence and being cross-examined.  Counsel for the Commission then indicated to the Tribunal that he proposed to tender the statement of principles prepared by the Repatriation Medical Authority in connection, inter alia, with hypertension and artherosclerotic ischaemic heart disease.  Copies had not been supplied by the Commission to the applicant at that stage.  Counsel for the applicant objected, on the basis that the principles came into effect only in respect of applications made prior to 2 June 1994, indicating that at best the principles could only have the status of medical reports.  He submitted that without the opportunity of cross-examining each of the Committee members the material should not be admitted.  The Tribunal did not determine the question of admissibility at this stage, but required counsel
for the Commission to supply counsel for the applicant with a copy of the material proposed to be tendered.

          Evidence was then taken orally from certain expert witnesses.  No reference was made in their evidence to the principles that were proposed to be tendered.

          The question of the admissibility of the material was taken up again on the second day of the hearing.  The material was presented by counsel for the Commission as being the:

          "... most up to date conclusions of an eminent body of medical specialists the CVs of whom appear attached to the documents which include a research undertaken in these areas over the last five years."

          It was accepted that the material was not in any way binding upon the Tribunal, but was "meant as a guide".  Reference was made to two other cases before the Tribunal in which it was said that a tender of the principles had been accepted.  So far as appears there had been no contest about admissibility in these other cases.

          Counsel for the applicant conceded that by force of s33 of the AAT Act the Tribunal was entitled to inform itself in any way it saw fit and was not bound by the rules of evidence.  Nevertheless the submission was that the Tribunal was bound by the rules of fairness.  To that submission there can be no objection.  In elaboration of the submission as to fairness to the Tribunal, counsel for the applicant continued:

          "If the Tribunal is to rely on them, fairness suggests that the originator of the reports, or the preparers of the reports should be available for cross-examination.  I do not know if they are, but I doubt very much that they would be.  In those circumstances and in the principles of fairness, given it means that they should not be admitted, given that we do not - or the applicant does not have the opportunity of testing the conclusions, putting the material to the compilers of the reports, that may or may not alter their opinion or modify their opinion."

          There was some discussion about cross-examination of witnesses called by the Commission with counsel for the applicant indicating that he had no intention of cross-examining those witnesses based on the principles.  This was self-evident because none of those witnesses had ever referred to the statement of principles.  Counsel for the applicant then continued:

          "The people I would be seeking to cross-examine, if I were to cross-examine anyone on them, were the people who compiled the reports.  Now if they go in, subject to what happens with Dr Lennon - I may ask at this stage to reserve my position.  I do not particularly want to have to force these apparently eminent specialists to come along here to be cross-examined about these matters, but if the material is admitted and if it is apparently [sic] that you may be relying on that material
and any material fact, then I would have to ask that they be brought along here to be cross-examined."

          Counsel for the Commission then reiterated that the purpose of the documents being admitted was to assist the Tribunal inferentially with the latest up to date information on the medical conditions the subject of the proceedings.  The presiding member of the Tribunal indicated that it would be a matter for the Tribunal as to the weight it would give to the material.  Counsel for the Commission is then reported as saying:

          "I understand.  There has never been any question of fairness not being offered from the Commission's point of view, Senior Member, and the eminent members, as has been discussed in the two cases I have mentioned, are not available for cross-examination, and nor will they be, but the documents were still admitted."

          Precisely what this passage was intended to convey is unclear.  I am prepared to accept, as submitted by the applicant, that counsel for the Commission was intending to convey that he would not make available the members of the Authority or the author of the principles for cross-examination.

          Ultimately the material was admitted by the Tribunal into evidence so far as it afforded assistance to the Tribunal in coming to its decision.

          The gravamen of the attack on the admission into evidence of the principles was that unless the authors were available for cross-examination, the principles should not have been accepted into evidence by the Tribunal.  It was submitted that it was necessary also for the members of the Authority to be identified so that their expertise could be tested, but this submission was rendered somewhat difficult because there was tendered with the principles a curriculum vitae of each member of the Tribunal, all of whom were medical specialists and one of whom was indeed an epidemiologist and specialised in heart disease.

          It might be noted that it is not easy to see from the Tribunal's reasons what weight, if any, the Tribunal gave to the principles.  They receive only two mentions.  The first reference is in connection with the claim relating to osteoarthritis where the Tribunal says:

          "Recognising that the RMA documents do not relate, at law, to claims made before 1 June 1994, such weight as was appropriate was given by the Tribunal to the evidence."

          However as the appeal does not in any way relate to the Tribunal's determination in respect of the claim relating to osteoarthritis, this reference to the principles may be put to one side.

          The second reference is in the discussion of the evidence relating to the aetiology of hypertension.  The Tribunal comments:

          "The information regarding hypertension in Repatriation Medical Authority Instrument Number 84 of 1995 (see Exhibit R3) makes no mention of stress as a factor that must exist before it can be said that, on the balance of probabilities, hypertension or death from hypertension is connected with the circumstances of service."

          That no doubt is a correct statement.  There is nothing in the Tribunal's reasons that suggests that the Tribunal concluded from this omission whether stress was or was not a relevant factor.  Such discussion as is contained in the reasons of the Tribunal comes from other evidence before the Tribunal.

          I am prepared, however, to assume in favour of Mr Casey that some weight at least was afforded to the principles by the Tribunal, although this is not necessarily so. Indeed it would be sufficient for the applicant to succeed if the wrongly admitted material may have influenced the Tribunal, whether or not it was clear that it did.  The degree of weight which the Tribunal may have afforded the principles was a matter for the Tribunal.

          In my view the applicant's submissions confuse the question of admissibility with the question of procedural fairness.  They are quite separate issues.

          The Administrative Appeals Tribunal was established in 1975 to provide, in circumstances to be legislated for by Parliament, a system of administrative review of certain decisions.  It was the evident policy of the legislation that such review be conducted with a minimum of formality and a maximum of expedition.  A review was not to be impeded by an overly technical approach.  For this reason s33(1) of the AAT Act provided, inter alia:

          "In a proceeding before the Tribunal ...

          (b)  the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matter before the Tribunal permit; and

          (c)  the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate."

          There could be no doubt that a statement of the state of medical knowledge at a particular time emanating from a committee of medial specialists, no matter how eminent, would be inadmissible in a court.  A useful discussion of the reasons why this is so can be found in the judgment of McGarvie J in PQ v Australian Red Cross Society [1992] 1 VR 19 at 37-38.

          However, s33 of the AAT Act means what it says.  The fact that material may be inadmissible in accordance with the law of evidence does not mean that it can not be admitted into evidence by the Tribunal or taken into account by it.  The criterion for admissibility of material in the Tribunal is not to be found within the interstices of the rules of evidence but within the limits of relevance.

          If, for example, a question arose as to the relationship between cancer, on the one hand, and passive smoking on the other, there could be no objection to the Tribunal having regard to reports published, for example by the National Health and Medical Research Council to inform itself: cf Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1 at 54 et seq.  Such reports would be relevant, albeit inadmissible in a court, to prove the relationship.  The weight to be given to the report would be a matter for the Tribunal.

          There is no doubt that the Tribunal is bound by the principles of natural justice or, as they are often referred to, the rules of procedural fairness: Fletcher v Commissioner of Taxation (1988) 19 FCR 442; Opitz v Repatriation Commission (1991) 29 FCR 50.  The question in a particular case will rather be as to the content of the principles of procedural fairness to be applied, rather than the general applicability of those principles.

          It would, for example, have been a breach of the rules of procedural fairness if the Tribunal had determined to act upon the statement of principles without giving the applicant an opportunity to be heard in respect of any matter arising in them.  No doubt it was for that reason that the presiding member of the Tribunal raised the question of the need for an adjournment.  Counsel for the applicant made no attempt to seek an adjournment, nor did he seek to cross-examine witnesses thereafter called by the respondent upon the material.  This was a conscious decision and his client is bound by it.  He cannot now complain that he was given no opportunity to deal with the material.

          Put simply, the Tribunal was entitled, as a result of s33, to inform itself on medical issues in such a way as it saw fit.  Assuming that it did so by considering the principles, it was required to advise the applicant that it proposed to take these into account and to give the applicant a chance of meeting any matter in them.  This, however, the Tribunal in substance did.  The fact that the applicant chose not to avail himself of that opportunity is not to the point.  The applicant was afforded procedural fairness in the hearing and in consequence there was no error of law either in admitting the material or in the conduct of the proceedings thereafter.

          I should say that the applicant had the ability to meet the material in a number of different ways.  No doubt it was open to the applicant if he desired to challenge any material in the principles to call a medical witness of suitable eminence to cast doubt upon them.  No doubt it was also open to the applicant to call the author of the principles.  It was not incumbent, in my view, upon the Commission to undertake to have the author of the report made available for cross-examination before the principles could be accepted into evidence.

THE EVIDENCE OF PROFESSOR BLACKET

          The applicant's submission concerning the evidence of Professor Blacket likewise fails.  It arises in the following way.  Professor Blacket was an expert witness for the Commission.  In a report dated 22 January 1995, after a consultation with Mr Casey, Professor Blacket said:

          "I think it very unlikely that hypertension is attributable to war service. ... The fact that in this case blood pressure was elevated thirty years after service is not evidence that it was attributable to service."

          Professor Blacket then gave evidence orally in which he was asked to comment on that statement.  He replied:

          "Yes, well, to begin with we don't know what the blood pressure was when he enlisted, it's - it's not in the papers.  There is a space there for the blood pressure but it was not - not recorded.  So, the first we heard of blood pressure is that when almost two years after service in northern New South Wales he was found to have this high figure on one occasion and this led to the conclusion that he probably shouldn't be in the army and that he should face a medical board - which he did - and when he went to the medical board they got a very different figure."

          In cross-examination Professor Blacket was then asked whether if someone was constantly anxious that meant that there was a constant elevation in blood pressure.  He responded that the short answer was "no".  It was suggested to him that there were cardiologists who disagreed and he replied "Well, I'd like to see their evidence".  That was presumably the source of the material that was ultimately cross-examined upon by counsel for the applicant.  The following exchange appears in the transcript:

Mr Sanderson:

          "... When you say there is no evidence proving that constant anxiety state elevates blood pressure are you looking at, sort of, the concept of scientific proof? ---Of course.

          When I say scientific proof, do you understand me to mean that we are looking at something that has to be pretty well 100 per cent certain? - Well, it's a hard question.

          ... The standard of refereeing of scientific papers, particularly reputable journals, requires evidence that makes a conclusion almost certain, does it not?---Yes.

          So when you say that you do not accept that an anxiety state can cause elevated blood pressure you are putting that on the standard of scientific proof, are you not?---Yes.

          Is there any evidence, as far as you are concerned, that indicates that it may be a factor?---Yes, there is evidence.  There is evidence but I haven't got it at my fingertips.  There's an enormous volume of published work,...  All I can say is that the overwhelming majority of people who do research in cardiovascular medicine and the causes of diseases including hypertension do not accept that the evidence is persuasive.

          Does that mean it is not proven to their satisfaction on a scientific standard?---Right.

          But there is a lot of evidence that points to the possibility?---Well, there is evidence which suggests that this might be the case."

          The cross-examination continued by reference to a report from another witness and the following appears then on the transcript:

          "Is it accurate to say that hypertension does not necessarily lead to ischaemic heart disease?---It doesn't necessarily lead to ischaemic heart disease but it frequently contributes to it.

          But if a person has hypertension it does not necessarily follow that the disease comes on as a result of that?---No.

          Okay.  In your opinion, even if it does do you consider on the balance of probabilities likely or unlikely that Mr Casey's hypertension is attributable to his war service?---No, I don't think his hypertension has any relation to his war service."

          The submission was made to the Tribunal and also to me that Professor Blacket's evidence should have been rejected as irrelevant to the issue before the Tribunal because his opinion was concerned with proof to a scientific standard rather than to the issue for the Tribunal's decision under s120(4) of the Act on the balance of probabilities.  This submission was inferentially rejected by the Tribunal.  Its reasons contain a careful summary of the whole of the evidence adduced before it.  It suffices to say that the evidence of a witness called for the applicant, Dr Schiller, was that the applicant's chronic sustained anxiety state resulted in his developing hypertension so that the hypertension of the applicant was attributable to his war service.  The Tribunal observed that Professor Blacket was diametrically opposed to this view.  The Tribunal referred to the submissions of the applicant and set out extracts from the evidence already referred to and continued:

          "Dr Schiller had defined essential hypertension as `a condition in which there is a persistent rise in blood pressure above levels accepted as normal'. ... He conceded that the cause of essential hypertension was essentially unknown and added `I am supposing that he may have had labile hypertension for some years before he developed essential hypertension'."

          "In Professor Blacket's report he says:

          I think it very unlikely that hypertension is attributable to war service. ... The rise of blood pressure due to age is almost the norm in our society.  The fact that in this case blood pressure was elevated thirty years after service is not evidence that it was attributable to service.  The Tribunal prefers the evidence of Professor Blacket to that of Dr Schiller and Dr Macdessi."

          "28.Having considered all the evidence, including submissions made on the Applicant's behalf regarding Professor Blacket's definition of standard of proof required for acceptance of material for publication in scientific and medical journals, the Tribunal is not satisfied on the balance of probabilities that the veteran suffered from essential hypertension which was attributable to his war service."

          For the applicant to succeed on this submission it would be necessary to find that when Professor Blacket concluded that on the balance of probabilities it was unlikely that Mr Casey's hypertension was attributable to his war service, that conclusion was based upon a higher standard of proof ("scientific proof") than the stated standard of the balance of probabilities.  Such a conclusion could not, on the evidence, be drawn.

          When counsel for the applicant cross-examined Professor Blacket on the standard appropriate to scientific proof, that cross-examination was directed to the abstract question whether there was evidence which proved that constant anxiety states elevated blood pressure.  Whatever the outcome of that inquiry, it is a different inquiry to the question whether Mr Casey's hypertension was attributable to his war service.  Having regard to all the evidence it is clear that Professor Blacket's view was that on the balance of probabilities it was not.  In these circumstances the Tribunal was entitled to accept the evidence of Professor Blacket in preference to that of Dr Schiller and Dr Macdessi.  No error of law has been demonstrated in the Tribunal's reasons for so doing.

          In the circumstances the application should be dismissed and in the absence of any agreement between the parties as to costs, the applicant must pay the Commission's costs of the present application.

I certify that this and the

preceding seventeen (17) pages

are a true copy of the Reasons

for Judgment herein of his Honour

Justice Hill.

Associate:

Date:  25 October 1995

Counsel and Solicitors       I Sanderson instructed by

for Applicant:               Vardanega Roberts

Counsel and Solicitors       D E Ryan instructed by the

for Respondent:              Australian Government Solicitor

Date of Hearing:             3 October 1995

Date Judgment Delivered:          25 October 1995