FEDERAL COURT OF AUSTRALIA

Bull v Repatriation Commission [2001] FCA 1832

ADMINISTRATIVE LAW – VETERANS’ AFFAIRS – veterans’ entitlements – appeal from decision of primary judge on application for review of decision of Administrative Appeals Tribunal on claim by widow for pension – whether Tribunal misapplied test of whether a reasonable hypothesis connecting death to war service was raised on material before it – what is required or meant by a reasonable hypothesis – hypothesis must be pointed to – nature of Tribunal’s function at hypothesis stage – where Tribunal held reasonable hypothesis not raised on material – where primary judge held no error of law by Tribunal in deciding that question of fact – no error in primary judge holding Tribunal’s conclusion open to it – appeal dismissed.

WORDS AND PHRASES – “reasonable”; “hypothesis”; “reasonable hypothesis”

Veterans Entitlements Act 1986 (Cth) s 120, s 120A

 Administrative Appeals Tribunal Act 1975 (Cth) s 44

East v Repatriation Commission (1987) 16 FCR 517   applied

Repatriation Commission v Keeley (2000) 98 FCR 108   referred to

Repatriation Commission v Gorton (2001) 33 AAR 370; [2001] FCA 1194   referred to

Repatriation Commission v Deledio (1998) 83 FCR 82   referred to and not followed in part

Repatriation Commission v O’Brien (1985) 155 CLR 422   referred to

National Mutual v Campbell (2000) 99 FCR 562   referred to

Webb v Repatriation Commission (1988) 19 FCR 139   referred to

Repatriation Commission v Whetton (1991) 31 FCR 513   referred to

Bell v Repatriation Commission (1992) 26 ALD 545   referred to

Repatriation Commission v Bey (1997) 79 FCR 364   referred to

Gleeson v Repatriation Commission (1994) 34 ALD 505   referred to

Repatriation Commission v Owens (1996) 70 ALJR 904   referred to 

R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1994) 69 CLR 407   referred to

Bankstown Municipal Council v Fripp (1916) 26 CLR 385   referred to

Foley v Padley (1984) 154 CLR 349   referred to

Buck v Bavone (1976) 135 CLR 110   referred to

Corporation of the City of Enfield v Development Assistance Commission (2000) 199 CLR 135   referred to

Boucaut Bay Co (In Liq) v The Commonwealth (1927) 40 CLR 98   referred to

FCT v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28   referred to

FCT v Bayly (1952) 86 CLR 506   referred to

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259   referred to

Australian Heritage Commission v Mount Isa Mines (1997) 187 CLR 297   referred to

Minister for Immigration v Eshetu (1999) 197 CLR 611   referred to

Owens v  Repatriation Commission (1994) 35 ALD 278   referred to

Owens v Repatriation Commission (1995) 59 FCR 559   referred to

Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620   referred to

Bisley Investment Corp v ABT (1982) 40 ALR 233   referred to

FCT v Caneiro (1988) 15 ALD 368   referred to

Joan Bull v Repatriation Commission

No N1099 of 2001

MOORE, EMMETT and ALLSOP JJ

21 DECEMER 2001

SYDNEY

On appeal from a decision of a single judge of the Federal Court of Australia

THE COURT ORDERS THAT:

1.                  the appeal be dismissed; and

2.                  the appellant pay the respondent’s costs.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

MOORE J:

1                     I have had the benefit of reading the reasons for judgment of Emmett J and Allsop J in a draft form.  I gratefully adopt their Honours’ account of the background, the legislative framework, the decision of the Administrative Appeals Tribunal (“the Tribunal”) and the judgment of the learned primary judge.  I agree with the orders proposed and generally with their Honours’ reasoning.  However I wish to add a few observations of my own.

2                     Section 120(3) of the Veterans’ Entitlement Act 1986 (Cth) obliges the Tribunal, in a case such as the present, to form an opinion whether the material before it does or does not raise a reasonable hypothesis connecting the death of the veteran with the circumstances of the particular service rendered by the veteran.  The formation of that opinion involves several elements.  One is the consideration of the whole of the material before the Tribunal to identify what facts are raised which bear upon a hypothesis which might apply to the circumstances of the veteran.  Another is to ascertain whether the material raises that hypothesis and, if so, whether that hypothesis is reasonable. 

3                     In the present matter the reasons for decision of the Tribunal (I will use the paragraph numbers used by the Tribunal in its reasons in the passages set out in [27] of the reasons of Emmett J and Allsop J) contains several passages which might, if zealously scrutinised, be said to reveal or suggest error.  First, in [35] the Tribunal spoke of the hypothesis raised by the applicant rather than the material.  In addition the hypothesis identified in [31] is not, as their Honours have pointed out, an hypothesis of the relevant type.  In [32] the Tribunal used the language of fact finding in describing the material before it which might suggest that the material was being selectively dealt with in the sense that facts were being found rather than any raised fact identified.  However these matters are not significant if it is apparent on a fair reading of the Tribunal’s reasons as a whole that it undertook the task required by s 120(3).  I accept, as the learned primary judge decided, whether there is or is not a reasonable hypothesis is a matter of fact to be determined by the Tribunal.  Thus, in the present matter, the Court is only concerned with whether the Tribunal misapplied or misunderstood the law in making that determination or whether its determination involved unreasonableness in the sense discussed by Emmett J and Allsop J. 

4                     In my opinion the question of whether the Tribunal erred turns on what it meant in the first sentence of [35] where it said:

“In considering the evidence as a whole in respect of the raised facts, the Tribunal is concerned that so much of the hypothesis is left open as to make it so tenuous as to be not reasonable … .”

The first part of this sentence shows the Tribunal was alive to the requirement that all the material before it was to be considered in determining whether a reasonable hypothesis had been raised.  However, it remains to be considered what the Tribunal meant when it spoke of being “concerned that so much of the hypothesis is left open as to make it so tenuous as to be not reasonable”.

5                     One obvious hypothesis raised by the material was that the veteran died as a result of disease occasioned by excessive drinking to deaden the unpleasant or distressing memories of his stressful experiences in the war.  The Tribunal may have meant, when it spoke of “so much of the hypothesis is left open”, that an element of this hypothesis was not raised by the material.  If so, it might be inferred that the Tribunal did not appreciate the task required by s 120(3) because each element of the hypothesis is clearly raised by the material.  However it is more likely the expression “is left open” is a reference to elements of the hypothesis which, while raised by the material, are raised so slightly that the entire hypothesis was not to be viewed as reasonable. It is probable this is what the Tribunal meant and it is a conclusion that was open to the Tribunal.  Accordingly the Tribunal undertook the task required by s 120(3) and the learned primary judge was correct in dismissing the application. The law presently is that it is not sufficient that the material raise a hypothesis. In addition the hypothesis, to constitute a "reasonable hypothesis" for the purposes of s 120, must be one to which the material points: see East v Repatriation Commission (1987) 16 FCR 517 at 533, though whether material does or does not "point(s) to" a hypothesis can be an elusive notion as illustrated by the circumstances in this matter.

6                     The appeal should be dismissed with costs.

Associate:

Dated:              21 December 2001

On appeal from a decision of a single judge of the Federal Court of Australia

REASONS FOR JUDGMENT

EMMETT and ALLSOP JJ:            

7                     This is an appeal from a Judge of the Court concerning a claim by the appellant for a widow’s pension under the Veterans’ Entitlement Act 1986 (Cth) (the Act) in respect of the death of her husband.

8                     The appellant lodged a claim under the Act on 27 April 1998.  The claim was refused by the respondent and by the Veterans’ Review Board, on review.  An application was made to the Administrative Appeals Tribunal (the Tribunal) under s 175 of the Act for review of the decision of the respondent as affirmed by the Board.  That review took place and on 2 February 2001 the Tribunal handed down its decision affirming the decision under review.  An “appeal” under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) was brought by application to the Court and heard by the primary judge.  The application was dismissed.  No error of law was discerned by the primary judge.  Any complaint of the applicant was identified by him only as concerning a question of fact.

9                     The issues debated before us as to the correctness of the primary judge’s views, and so of his order, concern the operation of subs 120(3) and whether the Tribunal’s reasons disclose compliance with that subsection in how it dealt with the material before it.

10                  Subsection 120(3), and in particular its relationship with the balance of s 120, has been the subject of consideration and exposition in a number of cases in the High Court and the Full Court of this Court.  Except in one respect, no occasion arises for the reconsideration of any of the decisions of the Full Court of this Court.  The arguments of the parties did not request or require that such a task be essayed.

11                  Relevantly, subss 120(1) and (3) of the Act provide as follows:

120      Standard of proof

(1)               Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

…

(3)       In applying subsection (1) … in respect of the incapacity of a person from injury of disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)               that the injury was a war-caused injury or a defence-caused injury;

(b)               that the disease was a war-caused disease or a defence-caused disease;  or

(c)                that the death was war-caused or defence caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

12                  In 1994 the Act was amended and, amongst other changes which were made, s 120A was inserted which qualified subs 120(3) and the notion of hypothesis, by requiring, for an hypothesis to be reasonable for the purposes of subs 120(3), that the relevant “Statement of Principles” promulgated by the Repatriation Medical Authority uphold the hypothesis.  The role and function of such Statements of Principle (often referred to by the acronyms SoP or SoPs) was discussed in Repatriation Commission v Keeley (2000) 98 FCR 108, and Repatriation Commission v Gorton (2001) 33 AAR 370; [2001] FCA 1194. 

13                  It is unnecessary to deal with s 120A and any problems associated with the operation of SoPs because it was common ground that the veteran’s circumstances in this case satisfied the relevant SoP.  So, here, if by applying subs 120(3) the Tribunal had been of the opinion, after consideration of the whole of the material before it, that the material before it did raise a reasonable hypothesis connecting the injury, disease or death with the circumstance of the veteran’s particular service, that conclusion was not affected or negatived by the application of the relevant SoP.  As to the approach to and relevance of SoPs see also Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98.  In one respect, it should be noted, Deledio is wrong and should not be followed.  In the paragraph numbered 2 on page 97 the following appears:

2.           If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11).  If no such SoP is in force, the hypothesis will be taken not to be reasonable and in consequence, the application must fail.  [Emphasis added.]

14                  The second sentence of that quoted paragraph, being that emboldened, is, with respect, wrong.  If no SoP is in force, an hypothesis will not necessarily be taken to be unreasonable and the application will not necessarily fail.  Rather, subs 120A(4) requires that in those circumstances the claim be assessed without reference to subs 120A(3).  Subsection 120A(4) is in the following terms:

Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

            (a)    the kind of injury suffered by the person; or

(b)    the kind of disease contracted by the person; or

(c)    the kind of death met by the person;

15                  Any such claim will then be decided by applying s 120 without s 120A having a relevant effect.

16                  The appellant’s argument before the primary judge and on appeal was that the approach of the Tribunal misapplied the test of whether a reasonable hypothesis had been raised on the material before it.  It was not disputed before us that the exposition of the law by the Full Court in East v Repatriation Commission (1987) 16 FCR 517 governs the matter before us.

17                  In East, after an examination of the early legislation and other legislative history, of the background to the amendments to the Repatriation Act in 1985, in particular the decision of the High Court in Repatriation Commission v O’Brien (1985) 155 CLR 422, of the surrounding Parliamentary material to those 1985 amendments, of the drafting of the Act in 1986 and of the relationship between s 120 and that background, the Court said the following:

… The adoption of Brennan J’s notion of  a reasonable hypothesis meant that Parliament was requiring something by way of a 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 (unreported Nos V83/0396, V84/0821 and V28/072, 26 June 1985); words quoted by the Administrative Appeals Tribunal in Re Dell and Repatriation Commission (1986) 5 AAR 253 at 254-255:

“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.

…

The addition of the word ‘reasonable’ would however seem to imply that what is required is more than a mere hypothesis.  In the opinion of the Board, to be reasonable, a 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.  For  a reasonable hypothesis to be ‘raised’ by material before the Board, we think it must find some support in that material – that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis.  At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact.  Were it otherwise, it would no longer be a hypothesis but it would have been elevated to some higher status.  Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable even though theoretical, and it may be theoretical in either or both of a [sic] least two senses: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case; or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable.”

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.  [Emphasis added.]

18                  It is important to understand the following about East.  The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous.  However, the Full Court did notsay that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable.  The material must point to the connecting hypothesis:  see the emphasised paragraph in [17] above.

19                  Before proceeding any further two comments are appropriate.  First, it should be borne in mind that the hypothesis to be raised by the material must be one connecting the disease or injury or death with the circumstances of service.  Secondly, the phrases used by the Court such as ‘not obviously fanciful’, ‘not impossible’, ‘not incredible’, ‘tenable’, ‘not too remote’ and ‘not too tenuous’ are useful elucidators of the meaning of ‘reasonable’.  This is especially so given the subtle range of meaning of the words and phrase ‘reasonable’, ‘unreasonable’ and ‘not unreasonable’.  Much depends on context and purpose.  However, the words of elucidation should not be substituted for the words of the statute: see generally the comments of the Full Court in National Mutual v Campbell (2000) 99 FCR 562 at 571, [36].  What is required of the decision-maker by subs 120(3) is the formation of an opinion that the material before it does or does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service.

20                  The views of the Full Court in East, supra at 532-33 have been followed by later Full Courts: Webb v Repatriation Commission (1988) 19 FCR 139, 141-2 and 147; Repatriation Commission v Whetton (1991) 31 FCR 513, 515; Bell v Repatriation Commission (1992) 26 ALD 545; and Repatriation Commission v Bey (1997) 79 FCR 364, 371, 372-73, 375-6 (a five member bench).

21                  There is no doubt that the Tribunal is obliged to look at all the material, not just some of it.  It is not entitled at this point to find facts or reject matters.  See generally Gleeson v Repatriation Commission (1994) 34 ALD 505, 509.

22                  The formation of the opinion called for by subs 120(3) involves an assessment of the factual material before it.  It involves reaching an opinion about a factual matter.  It is, in that sense, a question of fact:  Bey, supra at 373 and Repatriation Commission v Owens (1996) 70 ALJR 904.  Here the Tribunal, on the material before it, formed the opinion that a relevant reasonable hypothesis was not raised from the material.  The primary judge said that that was a question of fact and that no error of law (and so no question of law for s 44 of the AAT Act) was presented.

23                  If the Tribunal examined all the material and if the Tribunal followed the correct approach to its task under subs 120(3) as enunciated in East, any error will be one of fact, unless the opinion was one which could not have been formed by a reasonable person who correctly understood the law under which he or she acted or unless the opinion was one which was not capable of being reasonably formed:  R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1994) 69 CLR 407, 430;  Bankstown Municipal Council v Fripp (1916) 26 CLR 385, 403;  Foley v Padley (1984) 154 CLR 349, 353, 370; Buck v Bavone (1976) 135 CLR 110, 118-9; Corporation of the City of Enfield v Development Assistance Commission (2000) 199 CLR 135, 150, at [34].  The “reasonableness” of the formation of the opinion embodied within this proposition should be understood as saying no more than did Starke J in Boucaut Bay Co (In Liq) v The Commonwealth (1927) 40 CLR 98 at 101, approved by Windeyer J in FCT v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28 at 57 when he said:

… He must not act dishonestly, capriciously or arbitrarily:…  So long, however, as the Minister acts upon circumstances … giving him a rational ground for the belief entertained, …

24                  Put another way, the opinion is to be honestly held and not reached capriciously or arbitrarily and it must not be irrational:  Boucaut Bay, supra, R v Connell, supra at 432, FCT v Bayly (1952) 86 CLR 506, 510;  Buck v Bavone, supra at 118-9.

25                  If such circumstances are displayed, a basis for curial intervention is laid out.  In these circumstances there is a failure of jurisdiction:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 275-6;  Australian Heritage Commission v Mount Isa Mines (1997) 187 CLR 297, 303; Minister for Immigration v Eshetu (1999) 197 CLR 611, 650-57 and there is an error of law entitling the Court to set aside the decision.

26                  The issues propounded by the appellant are found conveniently in paragraphs 3 and 4 of the appellant’s written submissions, as follows:

[3]     The ground of appeal is that his Honour erred in finding that it was open to the tribunal to find that the hypothesis was not reasonable, on the basis that “there was no direct material before the Tribunal actually going to the central part of the hypothesis of connection between war service and excessive drinking” and that his Honour further erred in holding that even if that were wrong, it would not be an error of law” [AB 158-9]

[4]     The ground of appeal thereby raises the questions for decision by the Court of:

·        Whether a claimant is required to put “direct material” before the tribunal that goes to the “central part” of a hypothesis in order to raise a reasonable hypothesis under sub-section 120(3) of the Act;

·        Whether it was open to the tribunal on the material before it to find that no reasonable hypothesis was raised.

27                  Before examining these submissions it is convenient to identify the approach of the primary judge.  His Honour set out in detail (at para [4]) the findings of the Tribunal on the body of evidence before it.  It is convenient for these to be repeated here (the paragraph numbering being that contained in the reasons of the Tribunal):

31.       The hypothesis raised is that the Veteran’s pre-service drinking increased by the time of his discharge from the Army, that it increased further about five years after his discharge, and was maintained at that level until after his retirement when it increased further until the time of his wife’s heart attack and invalidity, when he reduced his drinking somewhat.  The Veteran considered his service in the Middle East to be “pretty grim” and he refused to talk about it.  After the war he continued to be a gentle, “happy go lucky” man, except for occasional outbursts with his family, and except when he had been drinking.  When he had been drinking he became aggressive.  His post-service drinking venue included drinking with his Army friends at the RSL club, whereas his pre-service drinking was only at the golf club.

32.       The Tribunal is required to consider whether a reasonable hypothesis has been raised to connect the Veteran’s drinking with his war service.  While it is reasonable to infer that his war service in the Middle East and in Western Australia were both stressful, albeit in different ways, the nature of that stress is not known and the effect that it had on the Veteran is not known, except to say that he did not want to talk about it.  There is no evidence that the Veteran suffered from any psychiatric disorder arising from his war service.  There is no evidence that he drank to deaden the memories of his stressful war service.,  It was not until his retirement that he drank at home, apart from coming home with his friends to continue drinking after he was already drunk.  His drinking appeared to revolve around his sport, both golf and later bowls, and for many years it was confined to weekends.  There is no evidence that his drinking affected his work in any way.  He was well respected by his friends and his work colleagues and bosses, and appears to have had no difficulty in maintaining those relationships.  While he did not move into a parenting relationship with his step-son to any extent, there is no evidence that it was his drinking that inhibited that relationship.

33.              The Veteran gave no indication to his family that he was drinking because of his war service.  Merely, he refused to discuss his war experiences and he refused to admit that his drinking was a problem.  The juxtaposition of these two negatives does nothing more than leave open a possible relationship rather than pointing to it.  The closest relationship that the Applicant can point to in associating the Veteran’s drinking with his war service is that post-service he drank with his Army friends at the RSL club.  This on its own is a fairly tenuous relationship with his war service.  If it was one of a number of facts pointed to in the hypothesis it could be seen differently from being one of the main facts raised of an association.

34.              In terms of the raised facts, when considered in relation to those in Stares [Repatriation Commission v Stares (1996) 41 ALD 212], the Applicant’s case would appear to be weaker.  Certainly it is a much weaker case when compared with the Tribunal’s decision Re Wallis [Re Wallis and Repatriation Commission [2000] AATA 1060], in which the facts can be clearly distinguished.

35.       In considering the evidence as a whole in respect of the raised facts, the Tribunal is concerned that so much of the hypothesis is left open as to make it so tenuous as to be not reasonable, taking into account the definition of a “reasonable hypothesis” endorsed by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408, where Mason CJ, Deane and McHugh JJ said, at 414:

                        ‘[An] hypothesis cannot be reasonable if it is ‘contrary to proved scientific facts or to the known phenomena of nature’.  Nor can it be reasonable if it is ‘obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous’.

In the words of the High Court in Bushell, the hypothesis raised by the Applicant in this matter is “too tenuous” and therefore the Tribunal considers that, pursuant to s 120(3) of the Act a reasonable hypothesis has not been raised on the evidence.

28                  The essential submission advanced before the primary judge (see para [8] of his Honour’s reasons) was that the Tribunal had improperly weighed up the hypothesis as against material which did not support the hypothesis, because the Tribunal in its reasons points out the state of the evidence in respect of a range of discrete matters.  The submission was, in effect, that what might be termed “premature fact finding” had occurred.

29                  The primary judge had noted (at para [7]) that the principal guidance to be gained from the main authorities is that the opinion as to a reasonable causal hypothesis required to be formed by the Commission under subs 120(3) of the Act is to be formed prior to consideration of what arises under subs 120(1), so that if a negative answer is produced by reference to subs 120(3), that settles the issue arising under s 120(1), without more.  His Honour said that these same authorities also established that the Commission’s (relevantly here, the Tribunal’s) consideration pursuant to subs 120(3) of the whole of the material is not to involve fact-finding in the sense of accepting or rejecting particular parts of the material before it.

30                  The primary judge accepted the submissions of the respondent.  Paragraphs [12] and [13] of his reasons reflect his Honour’s reasoning:

[12]   In my opinion, despite the well crafted argument by counsel for the applicant, the respondent’s argument must be accepted.  There is nothing to indicate that the Tribunal did not address the task it was given pursuant to s 120(3) of the Act or that it impermissibly entered into fact-finding which is of a kind reserved to it only when considering s 120(1) at a later stage.  It had a body of material before it which related to the drinking of the deceased.  None of it bore directly upon the link between war service and drinking, or even his drinking during the war.  He drank before the war, he drank after the war and he continued to drink for the rest of his life.  Whether that material, coming as it does from various sources, gives rise to a reasonable hypothesis is, as the High Court said in Owens, a question of fact.  As with questions of fact, minds can differ.  On the material before it the Tribunal could have found that the hypothesis was reasonable, but it was open to it to find to the contrary. Decisions in other factual situations are of little assistance in a case such as the present, but I found the judgments of Lockhart J in Owens v  Repatriation Commission (1994) 35 ALD 278 and Davies J in the Full Court in the same case (Owens v Repatriation Commission (1995) 59 FCR 559) useful, considering the approval of those judgments by the High Court when refusing leave (see Owens).

[13]   I agree with thesubmission of the respondent’s counsel that the reasons of the Tribunal do not reveal or reflect any error of law.  No error of law can be identified in them.  On the contrary, the reasons refer to the relevant authority.  For my own part, I think that there is some danger in a Tribunal guiding itself by judicial paraphrases rather than by the statutory language, but that did not lead to any error here.  Counsel for the applicant sought to make much of the words “so much of the hypothesis is left open”.  In my view, those words, taken in context, simply mean that there was no direct material before the Tribunal actually going to the central part of the hypothesis of connection between war service and excessive drinking, which remains entirely a matter of inference.  Even if that were wrong, it would not be an error of law but, in my opinion, it is plainly correct.  The language of decision-makers is not to be scrutinised with too fine or pedantic an approach.

31                  As developed, the appellant’s submissions before us were to the effect that on the material before it, it was not open as a matter of law for the Tribunal to come to the opinion that the material before it did not raise a relevant reasonable hypothesis.  This was for two reasons: first, material was said not to have been taken into account by the Tribunal and so regard had not been had to all the material before it; and, secondly, even if regard had been had to all the material, no tribunal properly understanding its task, in the way described in [23] to [25] above, could have reached the conclusion it did.

32                  As to whether the Tribunal had regard to all the material, the appellant relied in particular on the oral evidence of the deceased veteran’s sister.  That evidence, in particular, contained the following passages:

…

“I know that after the war my brother would drink a couple of sherries at night after work, but drank heavily on the weekends with his friends.  Every Friday night he would go to the club and also on Saturday after bowls or golf he would drink quite heavily.”? --- Yes.

“On my visits I saw him come home after drinking.  It was clear that he had drunk too much.  I could tell by the way he was staggering.”  Is that right? --- Yes.

“I also noticed that my brother’s personality was different after he returned from service particularly when he was drinking, he became bad tempered and impatient.  My brother was a placid man before he went to the war and thus this was quite a noticeable difference.”? --- Yes.

“His short fuse was particularly noticeable if you told my brother that he was drinking too much.”? --- Yes.

“On one occasion whilst I was visiting I tried to talk to him about the war and also about his drinking habits.  He argued with me about it and I ended up in tears.  He got very angry that I had mentioned the war and would not give me any details.  He was just angry that the war had happened.”? --- Yes

“Any time that war was mentioned my brother sometimes started to sing to avoid finishing the discussion.  He said that it was not good and would try and change the subject.  My brother’s war service was abhorrent to him and refused to talk about it.”? --- Yes.

“I know that my brother never went to Anzac Day marches.  He said that he did not want to remember and that all that was important was that he was discharged.  It was clear that my brother wanted to block that memory out of his life.” ? --- Yes.

“My mother was very proud that my brother had served and wanted to send for his medals.  My brother did not want to get his medals and said that the only medals he wanted were his golf medals.”? --- Yes.

“After the war my brother would not touch guns of any kind.  He was very loud in his cursing of those who went out shooting.”? --- Yes.

“My brother had very strong views about the sending of young men to later wars such as Vietnam or Korea.  He was adamant that men should not be sent to war and thought that such things should never happen.”? --- Yes.

Then lastly:  “The matters I have stated above are true and correct to the best of my recollection.  Dated 26 June 2000.”? --- Correct.

33                  However, this oral evidence was no wider than the material referred to by the Tribunal at paras [17], [18] and [19] of its reasons.

34                  We have examined the factual material referred to by the Tribunal at paras [3] to [21] of its reasons and the submissions of the appellant and we cannot conclude that the statement by the Tribunal in the first sentence of para [35] of its reasons that it had examined all the material before it was not an accurate reflection of what the Tribunal did.  This is so especially in the light of the various statements in the cases that it is not incumbent on a Tribunal to cover every aspect of every factual matter:  Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620, 621 (per Fox J); Bisley Investment Corp v ABT (1982) 40 ALR 233; and FCT v Caneiro (1988) 15 ALD 368, 369; and in the light of the approach not to examine the Tribunal’s reasons with an eye too keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

35                  Thus, the real question in the appeal is whether the conclusion of the Tribunal was on the material open at law to it.  For it not to be, it would have to be an opinion of the kind referred to in [23] and [24] above.

36                  No question of the bona fides or honesty of the Tribunal arises.

37                  One of the difficulties in analysis is brought about by the identification of the hypothesis.  The Tribunal set out its understanding of the hypothesis put forward at para [31] of its reasons (see [27] above).  The Statement of Facts and Contentions of the appellant to the Tribunal proposed the following hypothesis:

4.  The applicant contends that the veteran was a light social drinker prior to enlistment and became a heavy drinker following discharge from the army.  The applicant [sic] served in hot, dry and isolated conditions in a hardworking unit not subject to discipline where drinking constituted being ‘one of the boys’ and beer was readily available.  The applicant further contends that the veteran experienced stressful service in the Middle East.  It is the applicant’s contention that the combination of these factors led to the veteran becoming a heavy drinker.

5.       The Applicant contends that no other reason exists as to why the veteran was a light social drinker prior to service and a heavy drinker following service other than the intermediary experience of wartime service.

38                  Neither para [31] nor the above is really an adequately expressed hypothesis.  Each is a description of events which contains causal propositions.  An hypothesis is a proposition made as a basis for reasoning or a supposition made as a starting point for further investigation from known facts.  It is one connecting the death with service.  The type of hypothesis which might be raised was touched on in para [32] of the Tribunal’s reasons (see [27] above), eg that the veteran began drinking heavily to deaden the memories of stressful war service or otherwise cope with his experiences in the War or the veteran developed a habit of consumption by reason of service camaraderie.

39                  In any event, the material disclosed the following:

(a)           Prior to the War, the veteran was a light social drinker at the golf club on the weekends.

(b)          In the War, the veteran was a sapper who served in the Middle East in 1941 and 1942 and in Western Australia and the Northern Territory in 1943 and 1944.

(c)           After the War, the veteran described his war experiences as “pretty grim”.  However, he spoke little about the War and was seen to become upset when asked about it.  He would try and avoid the subject and would become upset when the subject of war was discussed.

(d)          The drinking habits of the veteran after the War were described as follows.  His sister said that after the War he would drink a couple of sherries at night after work but drank heavily on the weekends with his friends.  She also said that he became bad tempered and impatient when drinking.  He was placid before the War.  The veteran’s stepson said that from 1947 the veteran would drink heavily on the weekends.  He would become more voluble and aggressive when drinking, being normally “meek”.  He would drink a few glasses of wine each evening at home during the week – 3 to 4 glasses of fortified wine.  The stepson said that this pattern of drinking continued until 1974 when his consumption increased and he would drink heavily on Friday, Saturday and Sunday nights and at the bowling club at least two days per week. This increased drinking from 1974 coincided with his retirement.

(e)           He often drank with ex-servicemen.

40                  The above is not intended to be exhaustive.  The Tribunal dealt with the veteran’s drinking in paras [7] to [21] of its reasons.  However, the above is enough to disclose that on the material available it could hardly be denied that an hypothesis of the kind referred to in [38] above was by no means fanciful or impossible or incredible or untenable.  He drank lightly before the War, experienced stress in the War, spoke in guarded and repressed terms of the War and drank more heavily after the War.  It could hardly rationally be said that an hypothesis that the increased drinking habits were brought about by his associations in the war or were to cope with his experiences in the war was fanciful or tenuous, etc.  People who experience stress sometimes cope by consumption of alcohol.

41                  However, the inability rationally to characterise the hypothesis as fanciful, etc, does not answer the inquiry for subs 120(3).  As set out in East, supra at 533:

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 on the balance of probabilities.

42                  On this basis, one can see that the reasons for the veteran’s increased drinking after the War might be consistent with the hypothesis in [38] above; but the drinking may also be equally explained otherwise, for example, a liking for convivial company of former service friends or a simple increased liking for alcohol consumption, especially after sporting activities.

43                  If the consumption had been of a pattern which bespoke a change in behaviour referable to service or to coping with the experience of service, it might point to a connection with war service.

44                  The Tribunal grappled with the problem in discussing cases which had dealt with similar problems.  At paras [24] and [25] of its reasons it said the following:

[24]     The Tribunal was referred to the decision of the Federal Court in Borrett v Repatriation Commission [2000] FCA 1829.  In that matter the Tribunal found that no reasonable hypothesis had been raised.  His Honour, Tamberlin J, noted that whether a hypothesis is established and is reasonable is a matter of fact.  His Honour found that the Tribunal erred in asserting that there was no evidence of the Veteran’s drinking patterns on service and noted that he had drunk prior to service.  There was also evidence from witnesses as to the veteran’s drinking on service.  These were considered by His Honour to be important matters, and he noted that it was a misstatement of the evidence on critical aspects when the Tribunal considered whether a reasonable hypothesis was raised, which pointed to error.  Moreover, the Tribunal had rejected the hypothesis, not on the facts raised by the material, but on the facts as found by the Tribunal.

[25]     Counsel for the applicant also referred to another decision Re Wallis and Repatriation Commission [2000] AATA 1060, the inference being that it supported the Applicant’s case.  In that matter the Tribunal found that a reasonable hypothesis had been raised on the evidence, that Mr Wallis enlisted at the age of 18 years and he did not drink prior to service but was drinking by the time of his discharge.  He was withdrawn and moody and bad tempered, and did not often speak about his war service.  There was evidence that Mr Wallis had said that having a few beers helped him with his nerves/anxiety state.  He had a photograph of dead bodies securely located with other items he had collected during the war that was not opened by his family until after his death.  He demonstrated a marked negative reaction to war films, and commented that they were not a true reflection of what it was really like.

45                  From the above discussion it is clear that, as the primary judge said, whether or not the material before the Tribunal pointed to or raised a connecting hypothesis was very much a matter of debate.  It was a factual question which the Tribunal determined.

46                  The complaint about the primary judge’s reasons set out in [26] above is misconceived.  What his Honour said in para [13] (see [30] above) must be set in the context of what he said in paragraph [12] (see [30] above).  It is doubtful whether the primary judge needed to use the adjective “direct”, but what he was clearly saying was that the Tribunal was of the view that the material did not point to the hypothesis connecting war service and service drinking and so war service and death.  His Honour was of the view that the material was such as to permit the Tribunal to come to the view it did. On the approach dictated by East, supra, his Honour was correct in that conclusion.  Therefore, if the Tribunal was wrong in its conclusion there was no error of law, only an error of fact.  That was his Honour’s view.  He was correct.

47                  For these reasons the appeal should be dismissed with costs.

Associate:

Dated:              21 December 2001