FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Farley-Smith [2007] FCA 1058

ADMINISTRATIVE LAW – review of decision of Administrative Appeals Tribunal (‘Tribunal’) that veteran’s death was war-caused – whether Tribunal considered whole of the material before it – whether material raised a reasonable hypothesis in the context of the veteran’s service – consideration of principles to be applied

ADMINISTRATIVE LAW – procedural fairness – whether breach of s 39 of the Administrative Appeals Tribunal Act 1975 (Cth) – where Tribunal failed to give opportunity to applicant to examine bundle of documents handed to Tribunal at the hearing – where Tribunal indicated that submissions would be received on the weight to be attached to the documents – where Tribunal did not receive further submissions and relied upon documents in its decision – consideration of circumstances in which matter must be remitted

Administrative Appeals Tribunal Act 1975 (Cth), ss 39, 44(1)

Veterans’ Entitlements Act 1986 (Cth), ss 8(1), 119, 120

Bushell v Repatriation Commission (1992) 175 CLR 408 cited

Byrnes v Repatriation Commission (1993) 177 CLR 564 cited

Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 cited

East v Repatriation Commission (1987) 16 FCR 517 cited

Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151 cited

Harradine v Secretary, Department of Social Security (1989) 25 FCR 35 cited

Kioa v West (1985) 159 CLR 550 cited

Mason v Repatriation Commission [2000] FCA 1409 cited

Morales v Minister for Immigration & Ethnic Affairs (1995) 60 FCR 550 cited

O’Sullivan v Repatriation Commission (2003) 128 FCR 590 cited

Repatriation Commission v Bey (1997) 149 ALR 721 cited

Repatriation Commission v Owens (1996) 70 ALJR 904 cited

Repatriation Commission v Smith (1987) 15 FCR 327 cited

Repatriation Commission v Whetton (1991) 31 FCR 513 cited

Schiffer v Pattison [2001] FCA 1094 cited

REPATRIATION COMMISSION v GWENDA FARLEY-SMITH

VID 1374 OF 2005

MIDDLETON J

18 JULY 2007

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The decision of the Tribunal be set aside and the matter be remitted to a differently constituted Tribunal for determination according to law.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     The applicant appeals under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 4 October 2005.  The Tribunal set aside a decision of the applicant made under the Veterans’ Entitlements Act 1986 (Cth) (‘VE Act’) that the death of the respondent’s husband (‘the veteran’) was not war-caused, and substituted a decision that the veteran’s death was war-caused.

FACTUAL AND PROCEDURAL BACKGROUND

2                     The veteran, born in 1923, served with the Australian Army from 6 April 1942 to 8 August 1946.  By reason of his service with the 112 Light Anti-Aircraft Regiment in the Northern Territory in 1943 and 1944 the entire period of the veteran’s military service was operational service. 

3                     The veteran died on 14 November 2001, aged 78 years.  His death certificate stated that the cause of his death was myelofibrosis which he had suffered for 4 years, and oesophageal varices which he had suffered for 2 years. 

4                     On 11 February 2002 the respondent lodged a claim with the applicant in respect of the veteran’s death.  The applicant refused the claim because the cause of myelofibrosis was unknown and therefore the disease could not be related to the veteran’s service.  The respondent applied to the Veterans’ Review Board (‘the Board’) for review of the applicant’s decision, and the Board affirmed the decision. 

5                     The respondent then sought review of the Board’s decision by the Tribunal who set aside the Board’s decision and substituted the decision the subject of this application. 

6                     On 2 November 2005, the applicant appealed to this Court from the decision of the Tribunal. 

LEGISLATIVE FRAMEWORK

7                     Section 13(1) of the VE Act renders the Commonwealth liable to pay pension to a dependent of a veteran where the death of the veteran was war-caused.  The circumstances in which a veteran’s death is taken to be war-caused are set out in s 8(1) of the VE Act.  They include the circumstances where:

·                    The veteran’s death arose out of or was attributable to any eligible war service (which includes operational service) (s 8(1)(b)).

·                    The veteran’s death was due to a disease which would not have occurred but for the veteran having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service (s 8(1)(d)).

8                     The question as to the kind of death suffered by a veteran is to be determined by applying the standard of proof in s 120(4) of the VE Act; that is, to the reasonable satisfaction of the decision-maker.  That section imports the civil standard of proof: see Repatriation Commission v Smith (1987) 15 FCR 327 at 335. 

9                     Section 120(1), so far as is relevant, provides:

Where a claim under Part II for a pension in respect of…the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the death of the veteran was war‑caused…unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

10                  Relevantly, s 120(3) provides:

In applying subsection (1)…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:

…

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

…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…death with the circumstances of the particular service rendered by the person.

11                  Where a claim relates to operational service, the standard of proof to be applied to the question as to whether a death is war-caused is proscribed by s 120(1) and (3) of the VE Act.  Those provisions are to be applied in the manner explained by the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571:

The position may be summarised as follows: (1) First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service?  The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable.  If the hypothesis is not reasonable, the claim fails.  Proof of facts is not in issue at this point.  (2) If a reasonable hypothesis is established, sub-s (1) of s 120 is applied.  The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.

12                  The threshold question posed by s 120(3) requires a consideration of the whole of the material before the decision-maker and the raised hypothesis connecting the death with the circumstances of the particular service rendered by the veteran: see Repatriation Commission v Owens (1996) 70 ALJR 904.  Further, it is mandatory to find in favour of an applicant unless the decision-maker forms an opinion that the whole of the material does not raise the reasonable hypothesis referred to in the statute: see Repatriation Commission v Whetton (1991) 31 FCR 513 at 521.

13                  It seems to me that there are three issues for my determination.  First, whether the decision of the Tribunal was open on the material before it and whether the Tribunal failed to consider the relevant connection between the veteran’s death and the eligible war service.  Secondly, whether the Tribunal applied the wrong test in its asking whether there was proof that benzene does not cause myelofibrosis and whether there was proof that the relevant connection was false.  Thirdly, whether the Tribunal contravened s 39(1) of the AAT Act or failed to accord procedural fairness and the consequences of such contravention or failure in the circumstances of the proceedings before the Tribunal.

The First Issue

14                  In addressing the first issue, I need to consider the hypothesis proposed, and test it in the context of the facts and findings made by the Tribunal, and the material that the Tribunal considered in support of its findings.

15                  The hypothesis relevantly considered by the Tribunal was that the veteran’s service exposed him to the use of petroleum products which caused exposure to benzene which precipitated, or was responsible for myelofibrosis, which in turn caused death.

16                  The facts and findings of the Tribunal were not essentially in dispute and can be summarised as follows:

·                    The veteran used petrol and petroleum products during service.

·                    The duration, extent, and quantity of the usage was unknown.

·                    The petroleum to which the veteran was exposed contained benzene.

·                    The period of possible exposure was approximately 12 months when the veteran cleaned guns and machinery in the Northern Territory.

·                    That exposure was over 52 years before the veteran contracted myelofibrosis.

·                    The kind of death suffered by the veteran was myelofibrosis.

17                  The question for me is whether there was sufficient material before the Tribunal pointing to or supporting a reasonable hypothesis connecting the veteran’s death with the circumstances of his service having regard to these facts.  I say having regard to these facts because the reasonableness of the hypothesis is to be considered in the context of the relevant factual scenario.  This includes that exposure to benzene occurred some 52 years before the veteran contracted myelofibrosis, and was at best intermittent whilst cleaning guns and machinery over a period of approximately 12 months: see, e.g. the approach taken in Whetton 31 FCR 513.  This is not to say that proof of any of these facts is necessary at this stage, just that they needed to be considered in connection with the hypothesis before the Tribunal. 

18                  I should mention, however, that in this case the hypothesis relied upon is not itself limited to the time and duration of exposure to benzene, to which I will refer as the temporal issues.  Whilst I have come to the view that there is sufficient evidence to support the findings of the Tribunal even on the basis of the temporal issues, the necessity for such evidence is not to be assumed.  As was said in East v Repatriation Commission (1987) 16 FCR 517 at 533:

The necessity for quantitative evidence in a particular case must depend upon the nature of the hypothesis being expounded. For example, if a Tribunal accepts medical evidence that condition B may be caused by any degree of exposure to factor A, that the veteran was exposed to factor A and that he or she subsequently developed condition B, it would be wrong to reject the claim because of an absence of evidence as to the extent of the exposure. The hypothesis itself makes quantity irrelevant. If, on the other hand, the evidence is that exposure to quantity X of factor A may cause condition B, the hypothesis cannot be described as reasonable unless there is reason to believe that the veteran was exposed to factor A to the extent of quantity X.

19                  I turn to the evidence before the Tribunal.  Two experts were called by the applicant – Professor Fox (a haematologist) and Professor Peach (an epidemiologist).  I need not rehearse their evidence except to say they both held the view that there was no connection between exposure to benzene and the contraction of myelofibrosis, especially in the circumstances of the temporal issues raised in this case.  I accept that their evidence (without more) could have led to the conclusion that the hypothesis considered by the Tribunal would not have been reasonable.  The Tribunal similarly regarded that as the likely position.  As the Tribunal observed at [91]:

On the evidence of Professors Fox and Peach alone, it might be thought that medical and/or scientific opinion would not support the hypothesis, and that there was an absence of support within the medical profession and other scientists for the connection between benzene and myelofibrosis.

20                  However, as the Tribunal went on to observe, more information was available and was before the Tribunal. 

21                  The applicant contended that this further material cannot support the hypothesis, particularly when one considers the temporal issues, and that the Tribunal failed to consider, as s 120(3) of the VE Act requires, whether the whole of the material before it raised a reasonable hypothesis connecting the veteran’s death with the circumstances of the particular service rendered by the veteran.  Undoubtedly s 120(3) of the VE Act requires the Tribunal to consider that connection.  In my view, the Tribunal did undertake that enquiry and it was open for the Tribunal on the whole of the material before it to reach its conclusions.

22                  In my view, the applicant underestimated the impact of the other material (in addition to the evidence of Professors Peach and Fox) before the Tribunal and, in particular, the evidence of Dr Collins who was called by the respondent.  In fact, if accepted, the evidence of Dr Collins could in itself sufficiently point to the connecting hypothesis, even taking into account the temporal issues.

23                  Dr Collins (a pathologist) prepared two written reports which were in evidence before the Tribunal.  He was not required for cross examination and he did not appear before the Tribunal.  The representative of the applicant stated before the Tribunal, when indicating that Dr Collins was not required for cross-examination, that it was for the Tribunal to decide “how much evidence (sic) to give to Dr Collins’ reports without cross-examination”.  It was a forensic decision made by the applicant not to cross-examine Dr Collins, and the Tribunal was invited to and was entitled to place appropriate weight upon the reports of Dr Collins as tendered. 

24                  It cannot be said that Dr Collins’ reports should have been completely disregarded by the Tribunal.  Dr Collins maintained his position in support of the hypothesis contended.  Whilst the applicant may regard Dr Collins’ position as unconvincing, the Tribunal obviously did not regard the opinion of Dr Collins as worthless, and was entitled to rely upon it to reach its conclusions.  The Tribunal, having received the evidence of Dr Collins, considered his opinion, and weighed that opinion in light of the whole of the material before it. 

25                  In his first report, Dr Collins made two important statements:

It has been generally accepted that in primary myelofibrosis, there is no definitively known cause and hence the use of various terminologies for this condition, such as “idiopathic” or “agnogenic” although with recent research these descriptive terms would appear somewhat inappropriate.  The development of this form of the disease has been linked to exposure to petroleum derivatives, particularly toluene and benzene, or to ionizing radiation (see accompanying example article by Tondel).

It has been suggested that, as a Bofors gunner during the war, the late Mr Farley-Smith may have been exposed to petrol/benzene.  If such a suggestion can be appropriately substantiated then, in my opinion, there is a real possibility his death was war associated through the link between benzene exposure causing toxic effects on the bone marrow which then resulted in myelofibrosis.  [emphasis added]

26                  I observe that the reference to the article by Tondel (Tondel, et al, ‘Myelofibrosis and Benzene Exposure’ (1995)) is only by way of example to support his conclusion.  I also observe that Dr Collins was aware that the veteran’s exposure to benzene was as “a Bofors gunner” and during the war, and thus was aware of the substantial gap in years between exposure and death, and probably between exposure and the time the veteran contracted myelofibrosis, and of the general nature of the veteran’s exposure.

27                  Further, in his second report dated 15 June 2004, he referred to the report of Professor Peach dated 26 March 2004, where Professor Peach raised the temporal issues in the following manner:

The widow is hypothesising that a relatively short, intermittent exposure to benzene can cause myelofibrosis more than 50 years after such exposure has ceased.

Nevertheless, Dr Collins still maintained his view as to the causal link between benzene and myelofibrosis.  It cannot be said that Dr Collins was not aware of the temporal issues, and that his view should be disregarded on this account.

28                  Before me, an attack was sought to be made of Dr Collins on the basis that he was not qualified at all, and certainly not as qualified as the expert witnesses called by the applicant.  This was not raised before the Tribunal and, as I have said, his reports were tendered without objection.  I note that Dr Collins is described in his reports as a Consultant Forensic Pathologist. 

29                  In my view, it is too late now before this Court for the applicant to be submitting that Dr Collins was not sufficiently qualified to express his view and to rely, as the applicant does, on the comments of Menzies J in Commissioner for Government Transport v Adamcik (1961) 106 CLR 292 at 302:

It would be going too far to say that any legally qualified medical practitioner is to be regarded as sufficiently qualified as an expert to express an opinion upon any matter of medical science…

30                  It was further contended by the applicant that the Tondel article was contradicted by subsequent papers, not by Tondel himself, but apparently by his “supervisors and senior staff”, according to Professor Peach.  It was also contended that Dr Collins, in any event, only raised the “possibility” of the relevant causal connection, which was not sufficient to give rise to a reasonable hypothesis.  The respondent pointed out that in response to Professor Peach, Dr Collins stated that:

Whilst I agree with Prof. Peach’s view that the proposed relationship between benzene exposure and the subsequent development of myelofibrosis is based on epidemiological studies and individual case reports, such a correlation does not necessarily exclude a definitive causal connection.

31                  As I have indicated, the Tondel article was merely an example of one reference material relied upon by Dr Collins.  I do, however, accept that the Tondel article could not assist directly on the temporal issues as it concerned a case study about one man who had been exposed to benzene for 17 years as a petrol station attendant and who contracted myelofibrosis 13 years after that exposure. 

32                  However, Dr Collins expressed himself, knowing of the temporal issues in this case, more definitively than the applicant submitted.  Dr Collins spoke of a “real possibility”, not just a “possibility” or “mere possibility”, that the veteran’s death was relevantly connected to his exposure to benzene.  Dr Collins’ above response to Professor Peach does not detract from the opinion of Dr Collins, which he did not recant, in favour of the hypothesis proposed by the respondent, being cognisant of the temporal issues.

33                  In any event, this was not the only material before the Tribunal that supported the hypothesis connecting the veteran’s death with his war service, although Dr Collins’ evidence was the only material before the Tribunal to address the temporal issues in the way I have indicated above.

34                  The other expert called by the respondent was Dr Parkin.  Dr Parkin provided a letter to the respondent dated 24 April 2003, which letter was tendered in evidence before the Tribunal.  Dr Parkin was a haematologist at Heidelberg Repatriation Hospital and he identified four reports that linked benzene with myelofibrosis.  Dr Parkin concluded that there was support for the hypothesis that benzene exposure contributed to the veteran developing myelofibrosis.  The Tribunal does not seem to expressly take Dr Parkin’s evidence into account, but that was material before the Tribunal.

35                  In addition there was the survey material from Sweden referred to in the Tondel article, and the United Kingdom survey referred to (although also discounted) by Professor Peach, and the bundle of documents produced by the respondent which were specifically relied upon by the Tribunal.  Even accepting the criticisms of the applicant in respect of the content of the material, it does nevertheless show that the hypothesis (putting aside temporal issues) was not contrary to known scientific facts, nor was so obviously fanciful, impossible, incredible or untenable, or too remote or too tenuous: see Bushell v Repatriation Commission (1992) 175 CLR 408 at 414 and East 16 FCR at 533. 

36                  In addition to the concession regarding the veteran’s exposure to benzene, the Tribunal also referred to other decisions of the Tribunal (on which no objection was taken) where it seemed clear that access to petroleum was readily available and its usage was probably without protective clothing or breathing apparatus: see Whitworth v Repatriation Commission [2002] AATA 861; Prestegar v Repatriation Commission (unreported, Northrop J, 14 February 1997).  All this material was available to the Tribunal to support the hypothesis.

37                  There was also the study in the United Kingdom of 24,500 male employees in oil distribution centres of three petroleum companies in the UK between 1950 and 1975 (Rushton and Alderson, ‘Epidemiological survey of Oil Distributions Centres in Britain’ (1983)), which was referred to by Professor Peach.  The Tribunal referred to this study by reference to three “petroleum refineries” but I do not think anything turns upon this incorrect reference to petroleum refineries instead oil distribution centres.  It was not a mistake which necessarily gives rise to an error of law and does not in my view impact upon the reliance placed by the Tribunal upon the study.  This study concluded that having regard to the instance of myelofibrosis in the UK, it was expected that there would be 3 deaths within the total number surveyed, but in fact there were 5 deaths.  Professor Peach, whilst acknowledging that the greater number of deaths than expected would not have been “a chance finding”, said that the study did not conclude an association between myelofibrosis and benzene.  In fact, Professor Peach said that there had been studies conducted within the Australian petroleum industry which had concluded that there was no association between myelofibrosis and benzene and where there had been a measure of the extent of benzene exposure.  Nevertheless, the Tribunal was entitled to attribute less weight to Professor Peach’s view, and rely upon the study itself (which it did).

38                  Finally, there was the bundle of documents produced by the respondent.  Putting aside the circumstances of reliance by the Tribunal upon those documents (to which I will return) that material does contain some general references to the connection between benzene and the contraction of myelofibrosis, although again not in respect of the temporal issues.

39                  Against this material before the Tribunal, the Tribunal heard the very strong views of Professors Fox and Peach concerning the connection between benzene and myelofibrosis.  Professor Peach, in particular, did not agree with Dr Collins and criticised his conclusions.  However, the Tribunal did not find the evidence of Professors Fox and Peach to be of such a “superior reliability” that there was not sufficient ground to determine the death was war-caused.  Both were subject to cross-examination, and one adverse comment was made implicitly of Professor Peach by the Tribunal in the Tribunal stating that Professor Fox was far less rigid than Professor Peach in expressing his opinions. 

40                  In any event, it was not for the Tribunal to necessarily determine opposing views, just have regard to them in examining the validity of the reasoning which supports the hypothesis: see Bushell 195 CLR at 413-416.  This, in my view, was the task the Tribunal undertook.

41                  I mention one further matter for completeness.  The respondent seemed to suggest that assistance could be obtained by s 119 of the VE Act.

42                  No reliance can be placed upon s 119 of the VE Act to fill in gaps where there is insufficient evidence to assist the respondent’s case: see Repatriation Commission v Bey (1997) 79 FCR 364 at 373-374 and Mason v Repatriation Commission [2000] FCA 1409.  However, in my view there were no relevant gaps in the material before the Tribunal, and for the reasons I have indicated, the evidence before the Tribunal supported the Tribunal’s conclusions.

The Second Issue

43                  I now come to the second matter for my consideration.  The applicant submitted that the Tribunal asked itself the wrong question when it tested the hypothesis of connection by asking whether there was “proof that benzene does not cause myelofibrosis” and “proof that the connection is false”.

44                  The applicant submitted that the absence of evidence disproving a connection between benzene and myelofibrosis could not elevate the hypothesis of such a connection to a reasonable hypothesis. 

45                  In my view, the Tribunal did not ask the wrong question or pose the wrong test.

46                  The Tribunal needed to test the hypothesis to determine whether it was reasonable.  The Tribunal could rely upon the material before it to so test the hypothesis.  The absence of evidence, whilst not elevating in itself a hypothesis as being reasonable not otherwise supported by sufficient material, could be taken into account in determining whether the hypothesis was reasonable.  The Tribunal raised the issue of the absence of proof in connection with whether the hypothesis relied upon was contrary to proven scientific facts or to the known phenomena of nature.  In my view, this was appropriate.  It accepted that the contents of the report of Dr Collins, the survey material from Sweden referred to in the report of Tondel, the United Kingdom survey referred to by Professor Peach, and the bundle of documents produced by the respondent supported or pointed to a reasonable hypothesis connecting the service of the veteran and his exposure to benzene to his subsequent death from myelofibrosis.  When the Tribunal said that there was no proof that benzene does not cause myelofibrosis and no proof that the connection is false, the Tribunal was not postulating a test, but merely observing that the hypothesis was not contrary to proven scientific facts or to the known phenomenon of nature, which was a relevant enquiry.

The Third Issue

47                  Finally, I turn to the question of the alleged contravention of s 39(1) of the AAT Act and the failure of the Tribunal to accord procedural fairness.  The applicant sought leave to amend its notice of appeal to raise this new ground of appeal.  The amendment was first notified to the respondent on 25 January 2006.  The respondent was given ample notice of the amendment and the substance of the amendment.  No relevant prejudice could be said to arise by reason of the proposed amendment. 

48                  As I have found that the ground raised in the amendment is to be successful for the reasons I set out below, I will give leave to amend the notice of appeal to raise the new ground.

49                  The applicant submitted that the bundle of documents referred to at [95] of the Tribunal’s reasons should not have been relied upon by the Tribunal in its reasons as it was not given copies of such material at the hearing, not given the opportunity to make submissions in relation to them, and not given the opportunity of putting the documents to Professors Peach or Fox.  Further, the applicant submitted that, despite objecting to the tender of the material at the hearing, and the Tribunal stating that it would hear the applicant on the question of the weight to be given to the material, the Tribunal did not hear the applicant further on this matter, and proceeded to rely upon the documents.  In this regard, the applicant submitted that it had been denied procedural fairness and there had been a breach of s 39(1) of the AAT Act.  In my view, this submission should be upheld.

50                  Although an examination of the transcript of the hearing before the Tribunal does not provide a complete record of what occurred, it is useful to set out the relevant parts:

Mr Handley:  Quite frankly, I don’t know where we are with these documents, or what the relevance of them is going to be – whether they are going to be the subject of cross-examination or whether they are simply background reading or what.  Some have been on the Tribunal files, some are not and I am not sure really what the status of them is.

Mr De Marchi:  As I have indicated, sir, they are all designed to assist the Tribunal in its final determination of this case.

Mr Handley:  But are they being tendered as exhibits?

Mr De Marchi:  Yes.

Mr Handley:  Have you anything to say about any of this, Mr Nyhof?

Mr Nyhof:  Well, sir, I think any of the documents that post date the facts and contentions – all of them ought to have been given to me beforehand and indicated, sir, that he was going to rely on them and tender them in evidence.  I am surprised at this latest turn of events.  The problem with the documents of course, sir, is that we cannot cross-examine on the authors or find out any details of the studies in which they appear to be – and how those studies were conducted and so on.  So, you know, it would be my submission, sir, that if you are taking me to evidence that you ought to record the weight with which they ought to be attributed.

Mr Handley:  Just to be sure that we have all got the same documents – I will arrange for two sets to be copied but – I will hear what you say later, Mr De Marchi about what weight to attach to them.

51                  However, there does not appear to be any return by the Tribunal to the issue of the weight to be attached to the bundle of documents.  Indeed, the Tribunal in its reasons for decision stated that the bundle of documents was not the subject of specific attention or submission and acknowledged that reference to them appeared unorthodox.  The Tribunal also acknowledged that the documents were not the subject of examination by the applicant, nor were they put to Professors Peach or Fox.

52                  In my view it appears from the transcript that the bundle of documents was implicitly accepted by the Tribunal as evidence before it, but the Tribunal was envisaging submissions from the respondent concerning the weight to attach to them.  It would appear from evidence filed by the applicant in this proceeding that the bundle of documents was not formally tendered or assigned an exhibit number during the hearing, although they were subsequently marked by the Tribunal as “Exhibit I Medical Research Documents”.  Copies apparently were not provided to the representative of the applicant.  It may be that some of the documents in the bundle were previously filed and exchanged between the parties, and used in cross-examination, but it is clear that the Tribunal relied upon others in the bundle to reach its conclusions.  There seems to have been no objection to the actual admission of the material, but this failure to object was done on the basis that the respondent would indicate (presumably in submissions) the weight to be attached to them, once 2 sets of the bundle had been copied to ensure all parties had the same documents. 

53                  Undoubtedly the Tribunal is entitled to rely upon material to inform itself as it sees fit, but it must accord the parties procedural fairness and comply with s 39 of the AAT Act.  If I am correct to conclude that the Tribunal was indicating to the applicant that it would be given the opportunity to consider the bundle of documents (after copies had been made), and was calling upon the respondent to address it as to weight, and thus give the applicant an opportunity to respond, in failing to do so, the Tribunal failed to accord procedural fairness and failed to comply with s 39 of the AAT Act. 

54                  Section 39(1) of the AAT Actprovided that, subject to provisions which are irrelevant for present purposes, the Tribunal must ensure that every party sitting before a Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision, and to make submissions in relation to those documents.  It seems to be clear that the section provides that the Tribunal must apply notions of procedural fairness: see Kioa v West (1985) 159 CLR 550 per Mason J and O’Sullivan v Repatriation Commission (2003) 128 FCR 590 at [45].  Obviously the requirements will depend upon the particular circumstances of each case.  It may be in some circumstances where a party is represented then there is some onus upon a party to be proactive in requesting from the Tribunal an opportunity to present its case such as, for instance, in seeking an adjournment: see, e.g. Schiffer v Pattison [2001] FCA 1094.  However, as I have said, in this case the Tribunal and the respondent effectively represented there would be an opportunity for the applicant to present further submissions on the issue of the bundle of documents once those documents had been seen.  That opportunity was not given. 

55                  I do not consider it was incumbent upon the representative of the applicant to have voiced any further objection or to have sought to reserve further rights to address, because it was anticipated the issue would be dealt with later by the Tribunal and the respondent.  The formal tender of documents was the practice of the Tribunal.  It would have been reasonable to assume that a formal tender would occur, along with the opportunity to address the Tribunal as to the weight to be given to the documents.  It cannot be said there was any waiver by the applicant, because of the expectation, to which I have referred, of the course of action which was proposed and because the applicant could not have known (without seeing the actual documents) of their contents or significance.

56                  The respondent submitted that the bundle of documents simply strengthened the Tribunal’s resolve, and it was not in fact necessary for the Tribunal to rely upon the bundle of documents to reach its conclusion in favour of the respondent.  It was contended, therefore, that the reliance on the bundle of documents would have made no difference to the outcome.

57                  I cannot accept that submission.  After considering the evidence, particularly of Professors Fox and Peach, the Tribunal stated:

95.       As may be seen from the foregoing, a hypothesis may be reasonable despite the fact that it might be unproved, may have little support within the medical profession and may be dependent upon assumption.  I cannot find on the material read and heard in these proceedings, that the raised facts are unreliable.  Nor can I find that the evidence of Professors Fox and Peach is of such a superior reliability that there is no sufficient ground to determine that death in the present application was war-caused.  At the conclusion of the evidence but before the conclusion of the hearing, Mr De Marchi produced a bundle of extracts from internet web sites, without specific attention or submission being directed to any of them.  An analysis of those sites indicates that there is some support within the profession for an association between benzene and myelofibrosis – refer www.merck.com/mmhe/sec14 and www.caremark.com/wps/portal.  Additionally, one of the documents forming part of the “web” exhibits – the copy of which is so poor that the web address cannot be identified refers to an increased incidence of myelofibrosis in the case of firemen who have been exposed to benzene.  Regard for this material may appear unorthodox however it does highlight that contrary to the opinion of Professor Peach, in ‘world medical literature’ there does exist a body of literature raising a connection between benzene and myelofibrosis.

96.       I readily acknowledge that those documents were not the subject of examination by the respondent, nor were they put to Professors Fox or Peach.  However, the opinions expressed in those documents found at web sites of reputable medical organisations, do indicate that the hypothesis is reasonable because the connection between benzene and myelofibrosis is more than a possibility.  Veterans and their widows need not establish a hypothesis as reasonable by a “causal connection” (refer Professor Peach) or a “definitive causal connection” (refer evidence of Dr Byron Collins).  The finding of the reasonableness of the hypothesis does not depend on a resolution of or choice between competing medical theories.  The contents of the report of Dr Byron Collins, the survey material from Sweden referred to in the report of Tondel (including his own survey), the United Kingdom survey referred to by Professor Peach and the information found from the internet sources as tendered does point to material raising a reasonable hypothesis connecting the operational service of the deceased, his exposure to benzene by petroleum products and myelofibrosis.  The hypothesis is not “obviously fanciful, impossible, incredible, or not tenable or too remote or too tenuous” (refer East v Repatriation Commission (1987) 74 ALR 518 at 533).

58                  An analysis of the Tribunal’s reasons show, in my view, the bundle of documents was relied upon in at least two respects.  One was to impact particularly upon the acceptance of the evidence given by Professor Peach.  The other was to show the connection between benzene and myelofibrosis was “more than a possibility”, which was a critical issue.

59                  It may be said that in view of Dr Collins’ evidence and the other material referred to by the Tribunal supporting the relevant connection, the acceptance or otherwise of Professor Peach’s evidence has immaterial.  However, it does seem to me that the Tribunal did look into the relative strengths of the expert evidence, and could not find the evidence of either Professors Fox or Peach of such a “superior reliability” to persuade it that there was no sufficient ground to determine that the death of the veteran was war-caused.  The bundle of documents was used by the Tribunal to highlight a view which was contrary to Professor Peach’s in relation to the existence of world medical literature, and impacted upon the Tribunal’s assessment of Professor Peach adversely to the applicant.

60                  In addition, the Tribunal did seem to single out this bundle of documents as at least assisting in the Tribunal concluding that the hypothesis was “more than a possibility”.  I acknowledge that the Tribunal did later refer to other material, which in itself may have been sufficient to assist in the conclusion reached (particularly the reliance on Dr Collins), but I cannot be satisfied as to the comparative weight given to all the material relied upon by the Tribunal to reach its ultimate conclusion.  Having regard to the separate and specific treatment given to the bundle of documents by the Tribunal, it may well be that the Tribunal was finally persuaded by the information in the bundle to reach the conclusion it did. 

61                  Generally speaking, if a court decides that the Tribunal has erred in law, the Tribunal decision is set aside and the matter is remitted for determination according to law: see Morales v Minister for Immigration & Ethnic Affairs (1995) 60 FCR 550 and compare with Harradine v Secretary, Department of Social Security (1989) 25 FCR 35. 

62                  There may be an issue whether a denial of procedural fairness is an error of law, but in the circumstances of this case where the lack of procedural fairness is clearly apparent on the reasoning of the Tribunal, in my view, the reasons of the Tribunal do disclose an error of law: see Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28.

63                  Another way to approach the present issue is to treat the actions of the Tribunal as a breach of s 39(1) of the AAT Act, and thus there was a failure to comply with its statutory duty.  This would itself be an error of law: see O’Sullivan (2003) 128 FCR at [60].

64                  I have a discretion under s 44(4) of the AAT Act, which includes not remitting the matter if that is appropriate.  This is not a case where this Court can be sure what decision would have been reached had procedural fairness be accorded.  I cannot be satisfied for the reasons given above that there is no possibility of a different result: see Giretti v Commissioner of Taxation (1996) 70 FCR 151 at 165-166; and O’Sullivan (2003) 128 FCR at [62].

65                  I should mention that there was another ground of appeal relating to the bundle of documents and whether it was open for the Tribunal to make certain findings on the basis of the information contained therein.  As I have found that the bundle of documents should not have been relied upon by the Tribunal, it is unnecessary for me to address this other ground of appeal.

CONCLUSION

66                  In view of my findings above and on the basis of the options put before me by the parties for the further disposal of the hearing before the Tribunal, I will remit the matter for determination in accordance with law before a differently constituted Tribunal. 

Associate:

Dated:         18 July 2007