REASONS FOR JUDGMENT

Introduction

1                     This case is one of many concerned with the Byzantine provisions of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).  It comes to the Court on appeal from the Administrative Appeals Tribunal (“the Tribunal”) reviewing a primary decision made by the Repatriation Commission (“the Commission”).

2                     It is common ground in this case that the Tribunal erred in law in more than one respect.  One issue concerns the impact or significance of those errors, because an error that could not have affected the decision will not vitiate it.  See BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 at 254 per Lockhart and Hill JJ.  There is no dispute, however, that if the applicant’s principal contention is upheld, the appeal must be allowed and the matter remitted to the Tribunal.  For the reasons that follow I am of the opinion that the applicant should succeed.

Factual background

3                     The applicant, Jacqueline Knight, is the widow of the late Keith Knight, who served in the Royal Australian Navy (“the Navy”) from 1964 to 1974.  The appeal relates to her application for a war widow’s pension following his untimely death.

4                     Mr Knight died at the age of 51 on 9 July 1998 after a myocardial infarction.  Mrs Knight claimed that passive exposure to smoke in enclosed spaces onboard ships during her husband’s naval service materially contributed to him contracting ischaemic heart disease, which, in turn, caused his death.  There was no dispute that Mr Knight’s death was caused by ischaemic heart disease.  Neither was it in dispute that during his naval service he was exposed to a visible tobacco smoke haze in an enclosed space for at least 1000 hours.  The problem for Mrs Knight was that a medical opinion submitted to the Tribunal on her behalf, and which the Tribunal accepted, pointed to the onset of clinical ischaemic heart disease in 1996, two years before Mr Knight’s death, but more than two decades after he had left the Navy.  It was this circumstance that gave rise to the legal issue that has bedevilled her claim.

5                     After Mr Knight left the Navy he went on to work for the Commonwealth in the Department of Defence.  There was uncontested evidence before the Tribunal that during his time in the Department “a fog of smoke” permeated his workplace and circulated via the air conditioning and, in its reasons, the Tribunal noted that it was aware that smoking was not discouraged in offices of the Commonwealth Public Service at the time.  The Tribunal found as a fact that the exposure to smoke whilst in the Department of Defence affected Mr Knight’s health forcing him (in 1987) to cease work in the Public Service.  In 1988 the Commissioner for Employees’ Compensation awarded him workers’ compensation for “an aggravation of a disease, namely reactive diathesis due to cigarette smoke” to which his employment was a contributing factor.

6                     After he left the employ of the Commonwealth, Mr Knight retrained and worked as a bricklayer.  In that job, Mrs Knight said, he continued to be exposed to environmental tobacco smoke at hotels he attended to secure work and where he stayed when he was working away from home.  Mrs Knight told the Tribunal that her husband always returned home smelling of cigarettes, that she had received reports from her son that the smoke and haze in his room was “really awful” and, although her husband would have his own bedroom, smoke “permeated through” the air-conditioning system.  She also stated that, after her husband left the Navy, he continued to be involved with naval life, socialising with ex-servicemen, many of whom smoked.  The Tribunal made no factual findings about any of these matters.

The legislative scheme

7                     Mrs Knight’s application was governed by the terms of the Act, which establishes a scheme for the payment of pensions, health care and allowances to veterans, service personnel and their dependants in cases of injury, disease and death.  The Full Court explored its legislative history in East v Repatriation Commission (1987) 16 FCR 517 (“East”). 

8                     With good reason, in his Report of the Review of Veterans’ Entitlements published in January 2003, the Honourable John Clarke QC characterised the Act as “a complex piece of legislation” and the eligibility and assessment rules and the interrelationships between different aspects of the system as “extremely complicated”.  That is particularly so – as the law reports illustrate – in the area with which this appeal is concerned, the application of the convoluted formula for establishing eligibility for pensions in the particular class of claim into which the present case falls. 

9                     The Commonwealth’s liability to pay Mrs Knight a pension arises under Part II of the Act, particularly s 13(1).  It hinges on whether her husband’s death was “war-caused”.

10                  Section 8 provides, so far as it is material, that a veteran’s death is taken to be war-caused if:

...

(f)        the … disease from which the veteran died is [a] … disease that has been determined in accordance with section 9 to have been a … war-caused disease…

…

but not otherwise.

11                  Section 9 spells out the different circumstances in which a veteran’s disease (or injury) is deemed to be “war-caused”.  Under s 9(1)(b) a disease is taken to be war-caused if (amongst other things) it “arose out of, or was attributable to, any eligible war service rendered by the veteran”.

12                  Under s 7(1)(a), a person who has rendered operational service is taken to have been rendering eligible war service while the person was rendering operational service.  There was no dispute in the present case that Mr Knight rendered operational service with the Navy in Vietnam during a number of periods between 1965 and 1968.  He also had a period of service classified under the Act as “defence service” between 7 December 1972 and his discharge from the Navy on 18 January 1974.  But in this appeal only the operational service is material.

13                  When determining whether a death resulting from injury or disease is “war-caused”, in the case of a veteran with operational service, the Act erects a standard of proof aptly described by the Full Court in Woodward v Repatriation Commission [2003] FCAFC 160, 131 FCR 473 at [86] as “highly beneficial”.  Section 120 relevantly provides:

(1)        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.

…

(3)        In applying subsection (1) or (2) 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 …

… 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.

14                  Thus, under s 120(3) the Commission, and the Tribunal in its place, was bound to determine whether the hypothesis implicit in Mrs Knight’s claim about the relationship between his heart disease and his service – broadly, that it was related to the circumstances of his naval service because of his exposure to passive smoke – was reasonable.

15                  To improve the consistency of approach to this question of causation, which is one where there is obvious scope for reasonable disagreement even among medical experts, s 196B authorises the Repatriation Medical Authority to create Statements of Principle (“SoP”) whose purpose is to lay down acceptable hypotheses relating particular diseases or injuries to war service.  Where, as here, there is an SoP in force, s 120A(3) requires the decision maker to find a hypothesis reasonable only if it is “upheld” by the SoP for the relevant disease or injury.

16                  The applicable SoP was entitled “Statement of Principles concerning Ischaemic Heart Disease”, which was Instrument No. 89 of 2007, amended in 2009.  This was the SoP in force at the date of the Tribunal’s decision, but not the Commission’s.  As a general rule the Tribunal applies the law in force at the time of its decision:  Esber v Commonwealth (1992) 174 CLR 430 at 448 per Brennan J.  A veteran whose hypothesis is not upheld by the SoP in force when the Tribunal makes its decision has, however, an accrued right to have his or her entitlement considered under any earlier SoP in force when the Commission made its primary decision:  Repatriation Commission v Gorton [2001] FCA 1194, 110 FCR 321 at [42]-[43] per Heerey J, [50] per Emmett J and [62] per Allsop J.  In this case, the Tribunal noted that as the terms of the earlier SoP were no different, there was no issue as to which was more beneficial for Mrs Knight.  Since only SoP No. 89 of 2007, as amended, is in dispute in these proceedings, I will refer to it as “the SoP”. 

The SoP

17                  The relevant parts of the SoP are to be found in clauses 4-6.

Basis for determining the factors

4.         The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that ischaemic heart disease and death from ischaemic heart disease can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces under [the Act], or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).

Factors that must be related to service

5.         Subject to clause 7 [which does not apply to factor 6(i)], at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.

Factors

6.         The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person’s relevant service is:

…

(i)         being in an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 1000 hours before the clinical onset of ischaemic heart disease, where the last exposure to that atmosphere did not occur more than five years before the clinical onset of ischaemic heart disease; ...

(Emphasis in original.)

The applicant’s hypothesis

18                  The hypothesis for which Mrs Knight contended was that being in an atmosphere with a visible tobacco smoke haze in an enclosed space for more than 1000 hours whilst on operational service made a material contribution to her husband’s total exposure to tobacco smoke, which exposure only ceased within the five years before the clinical onset of his ischaemic heart disease.  Thus, it was argued, although Mr Knight did not develop the disease until some 28 years after the end of his last period of operational service, he continued to be exposed to a visible tobacco smoke haze in an enclosed space after operational service ceased, first during his further period of defence service with the Navy, then as an employee in the Department of Defence and also in connection with his later work as a bricklayer, and the later exposure contributed to his total dose and to his death from ischaemic heart disease within five years of that exposure.

19                  In effect, Mrs Knight was contending that the second clause of the SoP was satisfied if there was material to point to the conclusion that Mr Knight developed ischaemic heart disease within five years of his last exposure to the required atmosphere, whether the time of last exposure occurred during service or, as in Mr Knight’s case, after service. 

The Tribunal’s decision

20                  In an ex tempore decision given on 18 December 2009 the Tribunal determined that Mrs Knight’s hypothesis with respect to Mr Knight’s operational service was not upheld by the SoP and therefore affirmed the decision under review and dismissed her claim.  Unsurprisingly, as the applicable SoP is in similar terms and the standard of proof is less beneficial, it also dismissed her claim in so far as it was based on Mr Knight’s defence service.  On any view, Mrs Knight must succeed on the basis of Mr Knight’s operational service or not at all and, as I said earlier, only the claim based on operational service is material in this Court.

21                  It appears from the Tribunal’s reasons that the Commission did not dispute that Mr Knight satisfied the first clause of factor 6(i) of the SoP during his “naval service”, that is, that Mr Knight had at least 1000 hours of the required exposure.  Regardless, the Tribunal was independently “reasonably satisfied” that Mr Knight had in fact accumulated the required exposure by the end of his period of operational service.  Thus, the Tribunal’s decision turned on its view about whether Mr Knight satisfied the second clause in factor 6(i), which required that the “last exposure to that atmosphere” be no more than “five years before the clinical onset of ischaemic heart disease”.

22                  The Tribunal summarised Mrs Knight’s hypothesis.  But it did not deal with the material bearing on Mr Knight’s exposure after leaving the Navy except to find that he would not have had the required exposure to a visible tobacco smoke haze “while actually working as a bricklayer”.  The reason why it considered it unnecessary to deal with this material is clear.  The Tribunal took the view that clause 6(i) required that Mr Knight’s ischaemic heart disease develop within five years of the last exposure during operational service.  Thus, the Tribunal stated that to conform to the SoP, clinical onset would have had to occur before 26 November 1973, that is, within five years of the end of his operational service.  So, although the Tribunal accepted that Mr Knight’s exposure during service “may have had a cumulative effect upon passive smoke endured by him after naval service”, it considered it was irrelevant, as he had not developed ischaemic heart disease within five years of the end of his last period of operational (or defence) service.

23                  In reaching its conclusion about the correct interpretation of factor 6(i), the Tribunal referred to two judgments of this Court.  The first was Kattenberg v Repatriation Commission [2002] FCA 412, 34 AAR 562 (“Kattenberg”), where the Court held that the Tribunal had erred in law in holding (with regard to an SoP regarding intervertebral disc prolapse) that a factor requiring the smoking of at least 30 pack years of cigarettes before clinical onset signified that the 30 pack years must have occurred during service.  The second was Repatriation Commission v Newson [2008] FCA 401 (“Newson”) which relates to SOPs on osteoarthrosis. 

24                  The Tribunal held that Kattenberg was distinguishable because it was concerned with the development of a habit which, whilst formed on service, can extend post-service.

25                  The Tribunal relied on Newson in support of its conclusion that the word “exposure” in factor 6(i) was not a reference to “generic exposure” but to “exposure during a period of relevant service”. 

26                  In the process the Tribunal emphasised that: 

[w]hat must be kept in mind is that the SoPs set out factors that connect ischaemic heart disease with relevant service.

27                  Finally, the Tribunal expressed its view that even if exposure to visible tobacco smoke haze on service contributed to Mr Knight’s ischaemic heart disease, the contribution had to be “material”.  It relied on Comcare v Canute [2005] FCAFC 262, 148 FCR 232 at [68] (reversed on appeal where the point did not arise for consideration:  [2006] HCA 47, 226 CLR 535), for the proposition that the term “material contribution” imposed “an evaluative threshold, below which a causal connection can be disregarded”.  It then said that there was “no evidence before [it]” that Mr Knight’s exposure during his operational service, combined with his exposure on defence service, “made a material contribution to [his] ischaemic heart disease, which was first diagnosed in 1996”.  Consequently, it appeared to conclude that Mrs Knight’s claim could be dismissed on this alternative basis as well.

The questions of law

28                  Three questions of law are raised in the notice of appeal. 

29                  The first is whether the Tribunal is permitted to make factual findings on the material put before it when it is considering whether a reasonable hypothesis is raised and, if so, what standard of proof applies.

30                  The second question concerns the interpretation of factor 6(i) of the SoP.  Mrs Knight submitted that the Tribunal was wrong to interpret the clause so as to require that the clinical onset of ischaemic heart disease occur within five years of service-related exposure.

31                  The third question is, in effect, whether the Tribunal was wrong to find that there was no evidence that Mr Knight’s service made a material contribution to his heart disease.

The first ground of appeal:  making factual findings at an early stage of deliberation

32                  The first question of law was pleaded in the following way:

When a decision maker, applying sub-section 120(3) of the Act, considers the whole of the material before it as to whether a reasonable hypothesis of connection is raised between the death of a veteran and the circumstances of the particular service rendered by the veteran, is the decision-maker permitted at law to make findings of fact at that stage of consideration, and to make any such findings at the ‘reasonable satisfaction’ standard of proof?

33                  The short answer to this question is ‘no’.

34                  Both parties believed that the Tribunal did not move beyond what has come to be known as the third stage of the Deledio process. 

35                  The third stage of the Deledio process is a reference to the Full Court’s not entirely accurate parsing of the decision-making process prescribed by s 120 of the Act in Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”) at 97-98.  The inaccuracy, pointed out in Bull v Repatriation Commission [2001] FCA 1832, 188 ALR 756 at [13]-[14] per Emmett and Allsop JJ, is not presently relevant.  In Deledio the Court said there was a four stage process involved in the determination of whether (amongst other things) death was war-caused.  At the first stage the decision maker has to consider whether the whole of the material points to an hypothesis connecting the death with the circumstances of the veteran’s service.  If not, then the application fails.  At the second stage where the material raises such an hypothesis the question is whether there is an SoP in force.  At the third stage (where an SoP is in force), the Court explained, the Tribunal must decide whether the hypothesis is consistent with the ‘template’ in the SoP, that is, whether one or more of the minimum factors the SoP lists are present and considering whether one or more of them is related to the relevant service, which, in turn, involves the application of s 196B(14) of the Act.  Until this stage is complete, the Tribunal is not permitted to make findings regarding the facts necessary to make out the hypothesis.  It is not to determine whether the material before it establishes the necessary facts, only if the material “points to some fact or facts (“the raised facts”) which support the hypothesis” (Bushell v Repatriation Commission (1992) 175 CLR 408 at 414 per Mason CJ, Deane and McHugh JJ), which in turn must be supported by the applicable SoP.  Put another way, in the other key High Court decision, “the material before the Commission [or Tribunal] must raise some fact or facts which give rise to the hypothesis” (Byrnes v Repatriation Commission (1993) 177 CLR 564 (“Byrnes”) at 569 per Mason CJ, Gaudron and McHugh JJ).  If, in accordance with these principles, the material raises a reasonable hypothesis connecting the service and the injury, disease or death, the claim has to be dealt with in accordance with s 120(1).  That is the fourth stage.

36                  It is only at the fourth stage that fact-finding is to occur.  Facts need not be established for an hypothesis to be erected; facts may be assumed: Byrnes at 569-70 per Mason CJ, Gaudron and McHugh JJ.  The reason for this is obvious.  The primary meaning given to “hypothesis” in the Shorter Oxford English Dictionary (1993) is:

A proposition put forward merely as a basis for reasoning or argument, without any assumption of its truth.

37                  Another is:

A supposition, an assumption; esp. one made as a starting-point for further investigation or research from known facts.

38                  These were essentially the meanings given to it by the Full Court in East at 532-3and accepted in the High Court, especially by Brennan J, in Bushell at 428.  Thus, an hypothesis may be reasonable, though unproved, and contrary to the weight of the evidence:  Kattenberg at [38].  As the Full Court put it in East at 533, a reasonable hypothesis is “an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities”.  The Court also held that it was insufficient that the hypothesis is merely open:  East at 532 (approving an interpretation given to the expression by the VRB in Stacey, 26 June 1985, unreported).  But the distinction may be a fine one.  And on one view this observation may be inconsistent with what the High Court said in Byrnes, although nothing turns on that in this case.

39                  Mrs Knight contends that the Tribunal made three findings of fact, each an error of law, because in so doing the Tribunal misunderstood its statutory task.

40                  The first is a finding of fact in Mrs Knight’s favour.  It was therefore immaterial to the decision the Tribunal reached. 

41                  The second was a statement in these terms:

[W]e do not accept that the deceased would have been exposed to visible tobacco smoke haze whilst actually working as a bricklayer…

42                  The Commission concedes that this finding should not have been made but submitted that it can be interpreted in two ways, either as referring to work on building sites, in which case it is immaterial because irrelevant on any view (as that was not Mrs Knight’s case), or so as to capture Mrs Knight’s argument, in which case it is material only if the Tribunal was wrong in its interpretation of factor 6(i), so that the error stands or falls with the applicant’s second ground of appeal.  I do not think that two interpretations are open.  The use of the words “whilst actually working as a bricklayer” (emphasis added) seems to preclude it.  As it was never part of Mrs Knight’s case that her husband was exposed to visible tobacco smoke in enclosed spaces during his actual work, but when he was in hotels during the course of his employment but when not working, this reflects a misunderstanding of her hypothesis.  But the error only has significance if Mrs Knight’s second ground of appeal succeeds.

43                  The third impugned finding is said to appear in the following passage of the Tribunal’s reasons:

There is no evidence before us that exposure to visible tobacco smoke haze in the 194 days of operational service, together with exposure between December 1972 to January 1974, whilst on defence service, made a material contribution to the deceased’s ischaemic heart disease, which was first diagnosed in 1996.

44                  In fact, Mrs Knight submitted that this passage disclosed three errors.  One of those errors is raised under the third ground of appeal and I put it to one side for now.  Of the other two, the first is again that the Tribunal has improperly made a finding of fact – the finding that there is no evidence to establish that Mr Knight’s exposure to passive smoke during his naval service made a material contribution to his heart disease – when it was engaged in the third stage of the Deledio process.  The second is said to be that the Tribunal has applied the wrong test, asking itself whether Mr Knight’s service materially contributed to his ischaemic heart disease, when it should have asked itself whether factor 6(i) was contributed to in a material degree by his service. 

45                  The Commission’s response to these alleged errors (as with the error said to be raised under the third ground of appeal), is to argue that they cannot be material to the Tribunal’s decision.  At this stage in its reasons the Tribunal had already decided that Mrs Knight’s claim failed because it did not raise a hypothesis supported by the SoP because of the delay in the clinical onset of Mr Knight’s heart disease.  This passage expressed the Tribunal’s unnecessary consideration of what it thought was an alternative basis for rejecting her claim and was therefore “surplusage…[and] did not affect the Tribunal’s decision”.

46                  With respect to the first error this passage is said to disclose, I was initially attracted to Mrs Knight’s argument.  On reflection, however, I think it should be rejected.  The reasons for the decision should “not be construed minutely and finely with an eye keenly attuned to the perception of error” (Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287, approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.  Notwithstanding the position taken by the Commission, it seems to me that the passage is open to the interpretation that the Tribunal was making an observation about the state of the evidence (or, better put, the material) before it as part of its consideration of the question involved in Deledio’s third stage and was not making a finding of fact.

47                  In the case of the second alleged error, however, I accept Mrs Knight’s submission.  The terms of clause 5 and the opening words of clause 6 of the SoP admit, in my view, of no other interpretation.  On this question, the Tribunal’s misstatement of the statutory test – considering the connection between Mr Knight’s heart disease and his service, instead of the connection between factor 6(i) and his service – was apt to lead it into error.

48                  The answer to the first question, then, is that the Tribunal erred in law.

The second ground of appeal:  the proper interpretation the Statement of Principles concerning Ischaemic Heart Disease, No. 89 of 2007 (the SoP)

49                  The second ground of appeal raises the question of how the SoP should be construed.  It goes to the heart of the appeal. 

50                  The question of law was whether clause 6(i) required that part of the exposure to visible tobacco smoke haze in an enclosed space occurring within five years of the clinical onset of ischaemic heart disease had to be connected to service – here, operational service.  More accurately, the question as argued was whether clause 6(i) required that the last exposure (that is exposure to the relevant atmosphere within five years of clinical onset of the disease) had to be connected to service.

51                  Mrs Knight’s case was that for a reasonable hypothesis to be raised, it was sufficient that the material pointed to facts that showed that:

•                     the veteran was in the relevant atmosphere for at least 1,000 hours before the onset of the disease;

•                     his being in the atmosphere was “related to service” within the meaning of s 196B(14); and

•                     he contracted the disease within five years of last exposure to that kind of atmosphere.

  52                  It was, so she contended, unnecessary that the disease be contracted within five years of operational service in such an atmosphere.  In my opinion, the contention is right.

  53                  Section 196B(14) relevantly provides:

  A factor causing, or contributing to…disease or death is related to service rendered by a person if:

  (a)     it resulted from an occurrence that happened while the person was rendering that service; or

  (b)     it arose out of, or was attributable to, that service; or

  …

  (d)     it was contributed to in a material degree by, or was aggravated by, that service;

  …

  (g)     in the case of a factor causing, or contributing to the death of a person – it was due….to a disease that would not have been contracted: :

                                              i.                   but for the rendering of that service by the person; or

                                             ii.                   but for changes in the person’s environment consequent upon his or her having rendered that service.

  54                  The Tribunal found that the last exposure to the relevant atmosphere had to “relate to exposure whilst on service”.  In effect, it determined that the last exposure had to have occurred during service.  Ms Henderson, who appeared for the Commission on the appeal, maintained that the Tribunal’s interpretation was correct.  She argued that the words “last exposure to that atmosphere” showed that the factor “refers to a finite period of exposure to the specified atmosphere” rather than merely exposure to an atmosphere of the nature described in the factor.  Consequently, she said, when the requirement in clause 5 that the factor be related to service is applied, it must mean that the period of exposure could only be related to service if it occurred during operational service.  In short, she submitted that:

  “last exposure” [in factor 6(i)] must be given meaning.  And the only meaning that it can tolerably be given, in this context, is the last exposure during operational service.

  55                  I am unable to agree.  With respect, in my view the Tribunal misconstrued the SoP.  It put an unnecessary gloss on the clause to require that exposure during the five years before the clinical onset of ischaemic heart disease occur during service.  If that was the intention, why not expressly say so?

  56                  The root of the problem appears in this statement in its reasons: 

  What must be kept in mind is that the SoPs set out factors that connect ischaemic heart disease with relevant service.

  57                  To appreciate why this is problematic it is necessary to return to the terms of the SoP.

  58                  Clause 6 is concerned with the aetiology of ischaemic heart disease, not its relationship to service.  I accept the argument put by Mr Vincent, counsel for Mrs Knight, that the purpose of the qualification in the last clause of factor 6(i) was to incorporate a medical requirement for attribution of ischaemic heart disease to passive smoking, namely, the existence of a latency period of no more than five years from last exposure.  But an applicant does not fit into the template of the SoP unless, in addition to meeting one of the factors in clause 6, at least one of the factors is related to operational service.  That is what clause 5 provides.  The SoP does not, therefore, “set out factors that connect ischaemic heart disease with relevant service”.  Rather, it sets out factors that the Repatriation Medical Authority recognises as potential causes of ischaemic heart disease.  In other words, it sets out factors that can be connected with service.  Whether or not a factor is connected with the relevant service is answered by applying s 196B(14) of the Act. 

  59                  That conclusion is reinforced by an examination of other parts of clause 6 – other factors listed in the clause (of which there are 45 in total).  For example, amongst the factors in clause 6 are:

  (f)        having dyslipidaemia [persistently abnormal lipid profile] before the clinical onset of ischaemic heart disease; or

  …

  (p)        undergoing a course of therapeutic radiation involving the mediastinum or the chest wall region overlying the heart, before the clinical onset of ischaemic heart disease; or

  (q)        using a combined oral contraceptive pill for at least the 21 days before the clinical onset of ischaemic heart disease…

  …

  (s)        using amphetamines or amphetamine-like compounds, within the 24 hours before the clinical onset of ischaemic heart disease;

  60                  There is no apparent connection between any of these factors and service.  To take the last factor, a veteran or his or her dependants would not lose out because (s)he did not take the amphetamines during service as long as his or her use of amphetamines was related to service within the meaning of the expression in s 196B(14).  In the case of the factor in (p), a reasonable hypothesis would be raised if therapeutic radiation involving the mediastinum for, say, lung cancer, was administered many years after service where the tumour was related to service although the clinical onset might have occurred well after the veteran had been discharged from service. 

  61                  Whether a factor is related to service, as required by clause 5, is to be determined by considering whether it meets the statutory definition of “related to service” in s 196B(14).  The relationship between the factor and service is not established only where the last exposure occurred during service.

  Newson

  62                  The Tribunal’s reliance on Newson was, with respect, misconceived.  Newson concerned a differently-worded legislative instrument.  Despite the simplicity of this conclusion, the use to which the Tribunal put the reasoning in Newson and the submissions the Commission made in support of it mean that a close analysis of that judgment is called for.

  63                  Mr Newson served in the RAAF from 1942 until 1947, first as a “trainee technical” and then as a “fitter general” at various RAAF bases.  After he was discharged from service he worked as a carpenter/joiner for various building companies for twenty years and then for the Sydney County Council (later Energy Australia) for 22 years until he retired in 1989.  He made a claim for a disability pension under the Act with respect to a variety of ailments.  He was granted a part pension in respect of some of them and sought a review, first by the Veterans’ Review Board (“the VRB”) and then in the Tribunal.  The VRB affirmed the Commission’s decision but the Tribunal overturned it.  The Commission appealed to this Court and Edmonds J allowed the appeal.  The conditions in question in this Court were osteoarthrosis of the knees and the right hip.

  64                  The Tribunal first considered Mr Newson’s case under the then current SoP concerning osteoarthrosis (No. 32 of 2005) (“the 2005 SoP”), rather than the earlier SoP in force at the time of the primary decision (No. 82 of 2001) (“the 2001 SoP”).  Ultimately, however, it applied the 2001 SoP on the basis that it was more beneficial to Mr Newson.

  65                  The factors “that must exist before it can be said that, on the balance of probabilities, osteoarthrosis or death from osteoarthrosis is connected with the circumstances of a person’s relevant service” are set out in clause 5 of the 2001 SoP.  Clause 4 (like clause 5 of the SoP in this case) stipulates that, subject to clause 6 (which is irrelevant for present purposes) at least one of the factors in clause 5 had to be “related to the relevant service rendered by the person”.

  66                  In one respect the Commission argued the Tribunal had correctly interpreted the SoP.  That related to factor 6(i) in the 2005 SoP which read:

  (i)         for osteoarthrosis of a hip, knee or ankle joint only, lifting loads of at least thirty-five kilograms while bearing weight through the affected joint to a cumulative total of at least 168 000 kilograms within any ten year period before the clinical onset of osteoarthrosis in that joint, and where the clinical onset of osteoarthrosis in that joint occurs within the twenty-five years following that period. 

  (Emphasis added.)

  67                  The Tribunal decided that the phrase “any ten year period” in the factor “provides flexibility in cases where, for example, significant weights are only lifted towards the end of a veteran’s service” or from time to time during the veteran’s service and the remaining weight may be lifted in the veteran’s post-service work, as long as the service portion made a material contribution to the required weight.  The Tribunal then noted that the clinical onset of the osteoarthrosis of the right hip would need to have occurred no later than 1980, that is 25 years after the ten year period commencing in the last year of service, and, as it found that the clinical onset was in the mid-1980s, it could not be satisfied that Mr Newson met all the criteria for clause 6(i), in particular, that the clinical onset of his condition was within 25 years of the ten year period.

  68                  The Commission argued that the Tribunal should have come to the same conclusion in its application of the equivalent factor in the 2001 SoP, factor 5(j).  But it did not.  Factor 5(j) read:

  for osteoarthrosis of a hip or knee joint lifting loads of at least 35 kg while weight bearing to a cumulative total of 168 000 kg within any 10 year period, before the clinical onset of osteoarthrosis in that joint, and where such physical activity has ceased, the clinical onset of osteoarthrosis has occurred within the 25 years immediately following such activity;

  69                  The Tribunal referred to Mr Newson’s evidence that he continued to engage in heavy work until 1967 and, on that basis, was reasonably satisfied that the clinical onset of his hip condition in the mid 1980s was within 25 years of the cessation of that activity.  The difficulty with its conclusion was that it had apparently overlooked the need to apply clause 4 of the 2001 SoP, which, in a variation on the typical formula, required at least one of the factors (subject to clause 6 which was not relevant) to be related to “any relevant service”.  It made no reference to whether Mr Newson’s service was related to “the factor”.  It did not consider whether the service had materially contributed to osteoarthrosis for at least ten years within the twenty-five years before the clinical onset of the disease.  Significantly, in that case the relevant period was entirely outside the veteran’s service period.

  70                  When it came to the claim with respect to his knees, the same problem arose. 

  71                  Factor 5(k) in the 2001 SoP (the equivalent factor in the 2005 SoP was 6(l)) then read:

  (k)        for osteoarthrosis of a knee joint, kneeling or squatting for at least one hour each day on more days than not for at least two years before the clinical onset of osteoarthrosis in that joint, and where such physical activity has ceased, the clinical onset of osteoarthrosis has occurred within the 25 years immediately following such activity;

  72                  The Tribunal said it was reasonably satisfied that Mr Newson was kneeling or squatting for at least an hour a day on more days than not for at least two years before 1999 (the date of clinical onset of his osteoarthrosis of the knees) and had continued in that activity from the time of his service until he retired in 1989.  It followed that the clinical onset of the osteoarthrosis had occurred within 25 years immediately following the activity.  The Tribunal then proceeded to find that Mr Newson met clause 5(k) without referring to clause 4 or explaining how Mr Newson’s work as a carpenter/joiner two decades after his discharge from service and his subsequent work were related to his eligible service.

  73                  The issue in Newson was whether the Tribunal overlooked the antecedent clause which required that the relevant factor be related to any relevant service rendered by the person.  Edmonds J held that there was a fundamental error in the Tribunal’s reasoning process that infected both its conclusions.  His Honour held (at [35]) that the periods referred to in the factors – i.e. the ten year period in factor 5(j) and the two year period in factor 5(k) -had to encompass “at least part of a period of relevant service … otherwise there is no relationship between the injury/disease and the relevant service” and “part of the period of relevant service must contribute to the requirements of each factor…”.  So much is obvious.  An application of clause 4 in the 2001 SoP would require it. 

  74                  His Honour also held (at [35]) that part of the period of relevant service in Mr Newson’s case had to contribute to the requirements of each factor – in the case of factor 5(j) to the total weight lifted over the period not greater than 10 years and in the case of factor 5(k) to the kneeling or squatting time requirement in one of the two years.  Again, that would follow from an application of clause 4 read with s 196B(14).

  75                  The Tribunal’s reference in the present case to paragraphs 38 and 39 of his Honour’s reasons, however, is misplaced. 

  76                  What his Honour relevantly said was:

  [38]      Where the Tribunal’s process of reasoning appears to have fallen into error is in its construction of the factors in cll 5(j) and (k) of Instrument No 82 of 2001 as to when the period of 25 years, within which clinical onset must occur, first starts.  Under the current Statement of Principles in Instrument No 32 of 2005, it is clear that in the case of the factors in cll 5(i) and (l), the period of 25 years first starts immediately following the 10 year or lesser period and the two year period respectively.  The Tribunal was of the view that the start date under the factors in cll 5(j) and (k) of the previous Statement of Principles in Instrument No 82 of 2001 did not occur until physical activity of the generic kind referred to in the factors, ‘heavy lifting’, in the case of cl 5(j), and ‘kneeling and squatting’, in the case of cl 5(k), actually ceases even if that cessation does not occur until years after the expiration of the 10 year or lesser period in the case of the factor in cl 5(j) and the expiration of the two-year period in the case of the factor in cl 5(k).  Hence, the Tribunal’s finding, that Mr Newson’s ‘heavy lifting’ only ceased in 1967 led it to the conclusion that the 25 year period within which clinical onset must occur in the case of the right hip only then commenced; and the finding that Mr Newson’s ‘kneeling and squatting’ only ceased in 1989 led it to the conclusion that the 25 year period within which clinical onset must occur in the case of both knees only then commenced.

  [39]      In my opinion, this process of reasoning is predicated on an erroneous construction of the references to ‘such physical activity’ in both cll 5(j) and (k) of Instrument No 82 of 2001.  It is not a reference to physical activity of that generic kind such as ‘heavy lifting or ‘kneeling and squatting’; the reference is to ‘such physical activity’ and, so understood, is a reference back to the physical activity meeting the anterior terms of the factors in cll 5(j) and (k).  As indicated in [35] above, this in turn requires the relevant periods therein referred to -‘within any 10 year period’ and ‘for at least two years’ – to encompass at least part of a period of relevant service so as to provide a relationship to meet the requirements of cl 4 that the factor must be related to any relevant service rendered by the person.  Such physical activity ceases, at the latest, at the end of the 10 year period in the case of the factor in cl 5(j) of Instrument No 82 of 2001 and, in the case of the factor in cl 5(k) of that instrument, at the end of the two year period; in other words, in the case of the factor in cl 5(j) in 1955 and in the case of the factor in cl 5(k) in 1947.

  (Emphasis added.)

  77                  The Tribunal in the present case used these passages to support its interpretation of factor 6(i) in the SoP.  It stated:

  What must be kept in mind is that the SoPs set out factors that connect ischaemic heart disease with relevant service.  Kattenberg supra is distinguishable as a smoking habit formed on service can extend post service.  As pointed out in Newson supra at paragraphs 38 to 40, the reference to exposure is not to generic exposure but to exposure during a period of relevant service.

  Accepting, as we do, that the period of exposure must relate to exposure whilst on service… the clinical onset of the deceased’s ischaemic heart disease would have had to have been prior to 19 January 1979.  Any link to operational service would have had to have been prior to 26 November 1973.

  78                  I will come back to the remark about Kattenberg later.  Edmonds J, however, had nothing to say about factor 6(i) and the question with which he was concerned did not involve exposure to anything.  Here, provided that Mrs Knight could show, for example, that her husband’s presence in the relevant atmosphere arose out of, or was attributable to his service, was contributed to in a material degree by that service, or would not have occurred but for the rendering of that service or but for changes in Mr Knight’s environment consequent upon his having rendered that service (see s 196B(14)(b), (d) and (f)), later exposure to such an atmosphere could bring Mr Knight within the five year latency period.  In Newson the Tribunal had taken a similar approach when it was considering factor 6(i) of the 2005 SoP (concerning osteoarthrosis of the right hip), a conclusion which was not the subject of criticism on appeal.  See Newson at [24]-[25] and [36].

  79                  Just as Edmonds J said of “such physical activity” in Newson, the reference to “last exposure” is, indeed, a reference back to the exposure meeting the anterior terms in the factor, but it does not follow that “last exposure” in factor 6(i) of the SoP means last exposure during a period of relevant service.

  80                  As Mr Vincent submitted, Newson is distinguishable.  Unlike factor 6(i) of the SoP, which does not prescribe a time period over which exposure to the requisite atmosphere must occur, the relevant clauses in the SoP concerning osteoarthrosis contained a time period (ten years) during which the relevant activity had to be performed.  In Newson the medical condition could not be related to service unless at least some of the service occurred in the period.

  Kattenberg

  81                  In Kattenberg the veteran argued that his intervertebral disc prolapse was caused by smoking. 

  82                  The relevant factor in that case was in the following terms:

  (f)        smoking at least 30 pack years of cigarettes before the clinical onset of intervertebral disc prolapse.

  83                  The relevant ground of the applicant’s appeal in Kattenberg was set out by Emmett J at [41]:

  A "factor" in a Statement of Principles will be related to service if, for example, it was contributed to or aggravated by that service: s 196B(14)(d).  In order to satisfy the Statement of Principles concerning intervertebral disc prolapse the applicant had to meet the factor "smoking at least 20 [sic] pack years of cigarettes before the clinical onset of intervertebral disc prolapse".  The applicant's case was that he had smoked before his operational service but increased his smoking as a result of that service.  The tribunal erred by only having regard to the cigarettes smoked as a result of that service and not asking whether his total cigarette consumption had [been] contributed to by his service.

  84                  Emmett J upheld this ground.  His Honour held that the Tribunal erred in the way it construed the SoP.  The Tribunal had required that the smoking of at least 30 pack years be wholly attributable to service and did not consider the possibility that the service contributed to the smoking of the requisite number of cigarettes in a material degree or that it would not have occurred but for the rendering of the service, that is, that one of the causal relationships spelled out in s 196B(14) between the specified number of pack years specified in s 196B(14) obtained. 

  85                  In my view, the Tribunal made a similar error in this case.

  86                  Mrs Knight compared the relevant factor in the present case with the factor under consideration in Kattenberg, whereas the Tribunal purported to distinguish Kattenberg on the ground that “a smoking habit formed on service can extend post service”.  With respect, I do not agree that Kattenberg can be distinguished in this way.  Nothing in his Honour’s reasons supports it. 

  87                  Mrs Knight’s construction of the SoP is, in my view, consistent with the approach taken by Emmett J.  As his Honour indicated in that case, whether the factor is related to service is to be considered by asking whether one of the causal relationships specified in s 196B(14) explained Mr Knight’s presence in the relevant atmosphere. 

  88                  As I have already observed, to require that the last exposure occur during service imposes an additional hurdle for an applicant which, in my view, is not erected by the terms of the SoP. 

  89                  Thus, the Tribunal failed to ask itself the right question.  That amounts to an appealable error of law within s 44 of the AAT Act:  Roncevich v Repatriation Commission [2005] HCA 40, 222 CLR 115 at [28].

  The third ground of appeal

  90                  This ground of appeal relates to the Tribunal’s conclusion that there was an alternative basis for rejecting Mrs Knight’s claim.  It reads:

  When a decision maker, applying sub-section 120(3) of the Act, considers the whole of the material before it as to whether a reasonable hypothesis of connection is raised between the death of a veteran from ischaemic heart disease and the circumstances of the particular service rendered by the veteran, in circumstances where factor 6(i) of Statement of Principles No. 89 of 2007 concerning Ischaemic Heart Disease is sought to be related to the circumstances of the particular service rendered by the veteran, does

  (a)        material that the veteran was exposed to in excess of 1000 hours of atmosphere with a visible tobacco smoke haze in an enclosed space on operational service; and

  (b)        medical opinion that exposure to tobacco smoke during operational service was significant;

  constitute at law a raising on the whole of the material of a fact that the veteran’s death from ischaemic heart disease was “contributed to in a material degree by… service” within the meaning of section 196B(14)(d) of the Act.

  91                  What the Tribunal said was:

  Even if exposure to a visible tobacco smoke haze on service contributed to the deceased’s ischaemic heart disease, the contribution must be a material contribution.  In Comcare v Canute (2005) FCAFC 266, the inclusion of the term “material contribution” was held to impose an evaluative threshold, below which a causal connection can be disregarded. There is no evidence before us that exposure to a visible tobacco smoke haze in the 194 days of operational service, together with exposure between December 1972 to January 1974, whilst on defence service, made a material contribution to the deceased’s ischaemic heart disease, which was first diagnosed in 1996.

  92                  As I said earlier, in my opinion the Tribunal is here expressing its view that there was no material before it that raised or pointed to a fact that was part of Mrs Knight’s hypothesis, namely that Mr Knight’s death from ischaemic heart disease was contributed to in a material degree by his service, within s 196B(14)(d).

  93                  Mrs Knight pointed to material that was before the Tribunal and that she says did raise or point to that fact.  First, the material, which the Tribunal accepted, which showed that his exposure in fact exceeded 1000 hours during his operational service.  Second, a medical opinion from Dr Russell Butler.

  94                  As with the first ground of appeal, the Commission argued that it did not matter. 

  95                  I agree that it is necessary to answer this question.  I would point out, however, that it suffers from the same vice Mrs Knight complained of under her first ground of appeal.  It wrongly assumes that the relevant causal connection is between the disease and the service when it is between the factor and the service.

  Conclusion

  96                  I therefore answer the questions posed in the notice of appeal as follows:

  Question 1:  When a decision maker, applying sub-section 120(3) of the Act, considers the whole of the material before it as to whether a reasonable hypothesis of connection is raised between the death of a veteran and the circumstances of the particular service rendered by the veteran, is the decision-maker permitted at law to make findings of fact at that stage of consideration, and to make any such findings at the “reasonable satisfaction” standard of proof.

  Answer:        No

  Question 2:  Does the meaning of:

         ‘being in an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 1,000 hours before the clinical onset of ischaemic heart disease, where the last exposure to that atmosphere did not occur more than five years before the clinical onset of ischaemic heart disease:

  as those words appear in factor 6(i) of the Statement of Principles No 89 of 2007 concerning Ischaemic Heart Disease made under section 196B of the Act, require that that part of the exposure to visible tobacco smoke haze in an enclosed space which occurs within 5 years of the clinical onset of ischaemic heart disease, itself needs to be exposure which is connected to service rendered by a veteran.

  Answer:          No

  Question 3:     When a decision maker, applying sub-section 120(3) of the Act, considers the whole of the material before it as to whether a reasonable hypothesis of connection is raised between the death of a veteran and the circumstances of the particular service rendered by the veteran, in circumstances where factor 6 (i) of Statement of Principles No 89 of 2007 concerning Ischaemic Heart Disease is sought to be related to the circumstances of the particular service rendered by the veteran, does:

  (a)               material that the veteran was exposed to in excess of 1000 hours of atmosphere with a visible tobacco smoke haze in an enclosed space on operational service: and

  (b)               medical opinion that exposure to tobacco smoke during operational service was significant

  constitute at law a raising on the whole of the material of a fact that the veteran’s death from ischaemic heart disease was “contributed to in a material degree by … service” within the meaning of section 196B(14)(d) of the Act.

  Answer:          Unnecessary to answer.

  97                  The appeal should therefore be allowed and the matter remitted to the Tribunal for re-determination pursuant to s 44(5) of the AAT Act. 

  Orders

  98                  The appeal is allowed.

  99                  The decision made by the Administrative Appeals Tribunal on 18 November 2009 in proceeding number 2007/5801 is set aside and the matter is remitted to the Tribunal to be determined according to law. 

  100               The respondent is to pay the applicant’s costs. 

   

  I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

  
  
  

  Associate:

  
  

  Dated:         22 October 2010