FEDERAL COURT OF AUSTRALIA

Cross v Repatriation Commission [2013] FCA 229

THE COURT ORDERS THAT:

1.    The application be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction:

1    This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) constituted by Senior Member AK Britton and Dr Hadia Haikal-Mukhtar under the Veterans’ Entitlements Act 1986 (Cth). The Tribunal affirmed a decision of the Veterans’ Review Board, which in turn affirmed a decision of the Repatriation Commission to refuse the applicant’s claim for a war widow’s pension.

2    The applicant, Mrs Daphne Cross, is the widow of the late Mr Joseph Cross who died in 2009 at the age of 90 as a result of a gastrointestinal haemorrhage. Mr Cross had a long term smoking habit which contributed to his death but the issue which was determined adversely to Mrs Cross’ claim was whether her husband’s smoking habit was “war-caused” in accordance with s 13 of the Act.

3    The Tribunal received evidence from three separate sources on the question of whether the necessary causal connection existed. The first was a claim form and answers to a questionnaire provided by Mr Cross before his death. The second was a written report made by Mrs Cross after her husband’s death. The third was a written statement made by Mr Cross’ son, Mr Alwyn Cross in 2012.

4    The explanation for the connection between Mr Cross’ smoking habit and his war service given by Mr Cross in his answer to a question contained in a “claimant report” was:

Being away from home and seeing most troops smoked and drank I looked for something to ease my loneliness. And it appeared normal to follow others.

5    The explanations given by Mrs Cross and her son were in different terms from that of the late Mr Cross. The Tribunal described them at [26] as, not contradictory, but inconsistent with the reasons given by Mr Cross before his death.

6    Mrs Cross’ explanation was that Mr Cross had commenced smoking during war service due to “peer pressure - boredom”.

7    Mr Alwyn Cross’ evidence was that he thought his father smoked during service:

... as a way of relaxing and relieving stress throughout his time serving in the army. Also, his smoking was influenced due to the fact that the other men on service smoked and he would probably have smoked when in groups with the other men as this is what they did.

8    The Tribunal considered that each of the explanations was plausible but stated that, on the material before it, the Tribunal could not be satisfied that the reasons given by Mr Cross or his widow and son were in fact the reason he developed a smoking habit during service.

9    The Tribunal concluded at [30] that “[i]n the absence of better evidence” it could not be reasonably satisfied that the connection between Mr Cross’ smoking and his army service was not more than temporal in nature. It therefore affirmed the decision under review.

10    Mrs Cross’ Originating Application and her counsel’s written submissions sought to invoke two grounds of review which made reference to ss 119 and 120 of the Act. Ultimately, the application was narrowed to one ground, namely that the Tribunal misapplied or misdirected itself as to the application of s 119(1)(h)(i) of the Act.

11    Section 119(1)(h)(i) provides that the decision-maker is to take into account any difficulties attributable to the effects of the passage of time, including on the availability of witnesses.

12    The effect of the submissions of counsel for Mrs Cross was that in approaching the question of causation the Tribunal did not address s 119(1)(h)(i), notwithstanding its express reference to that subsection, or alternatively, left no work to be done by the terms of the subsection.

The legislation

13    Section 13(1) of the Act imposes a liability on the Commonwealth to pay a pension to a veteran’s dependants where the death of the veteran was “war caused”.

14    Section 8 deems a death to be war-caused if, relevantly, the death of the veteran arose out of or was attributable to eligible war service rendered by the veteran.

15    Section 119(1) provides relevantly that, in considering, hearing or determining, and in making a decision in relation to a claim, the Repatriation Commission:

(f)    is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;

(g)    shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and

(h)    without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstances, including any reason attributable to:

(i)    the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and

(ii)    the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran … was not reported to the appropriate authorities.

16    Section 120 prescribes the standard of proof to be applied in respect of a determination under the Act.

17    Sections 120(1) and (3) address the standard of proof where incapacity or death of a veteran relate to operational service. Those subsections have no application to the present case.

18    Section 120(4) provides relevantly that, except in making a determination in relation to matters to which subsection (1) applies, the Commission is to decide the matter “to its reasonable satisfaction.” It is well accepted that this subsection applies the standard of proof required in civil litigation: see Repatriation Commission v Smith (1987) 15 FCR 327 at 335.

19    Section 120(6) provides relevantly that nothing in the provisions of s 120 shall be taken to impose on a claimant any onus of proving any matter relevant to the determination of a claim or application.

The Tribunal’s reasons

20    The Tribunal’s reasons were succinctly stated in paras [22] – [30] which I will reproduce in full as follows:

22. There is no issue that a connection has been raised between smoking and a cause of Mr Cross’s death, gastrointestinal haemorrhage. The issue in dispute is whether Mr Cross’s smoking habit arose out of, or was attributable to, or was contributed to in a material degree by, his service. To be “attributable to” service, it is not necessary that Mr Cross’s service be the sole or dominant cause of the development of his smoking habit (Gilkinson v Repatriation Commission [2011] FCAFC 133). The term “material contribution” imposes an evaluative threshold, below which a causal connection between the service and the factor that lead to disease can be disregarded (Comcare v Canute [2005] FCAFC 262 [68] (reversed on appeal where the point did not arise for consideration: [2006] HCA 47; 226 CLR 535); Knight v Repatriation Commission [2010] FCA 1134 [95]).

23. We are reasonably satisfied that Mr Cross commenced smoking during service. Mr Cross made that claim in the smoking questionnaire, it was corroborated by his wife, and is consistent with the history given on his admission to Manning Base Hospital in 2005. However, as has been authoritatively determined, a temporal connection alone is insufficient to establish a causal connection between smoking and service (see for example Re Repatriation Commission v Tuite [1993] FCA 39 [8]; see also Repatriation Commission v Law [1981] HCA 57; (1981) 147 CLR 635 [26]).

24. In the smoking questionnaire, Mr Cross claimed that, when he left the Army, he was smoking between 30 to 40 cigarettes a day and had been smoking for 18 months. He gave as the reason he started to smoke on a regular basis “to ease my loneliness and it appeared normal to follow others”. Mrs Cross gave a slightly different reason “peer pressure – boredom”. Mr Alwyn Cross thought his father smoked during service:

[A]s a way of relaxing and relieving stress throughout his time serving in the army. Also, his smoking was influenced due to the fact that the other men on service smoked.

25. We have before us a number of different explanations for why Mr Cross started to smoke during service: to ease loneliness, out of boredom, and to relax and relieve stress. The only common thread in the proffered explanations is that “smoking appeared normal” (as stated by Mr Cross) or peer pressure (as understood by his widow and son). The basis of Mrs Cross and Mr Alwyn Cross’s stated understanding is unknown.

26. The questionnaire is the only direct evidence of the reason or reasons Mr Cross smoked during service. The reasons provided in that document lacked particulars. The hearsay accounts given by Mr Cross’s widow and son, while not contradictory, are inconsistent with the reasons he gave. We are unable to explore the basis of this apparent inconsistency because the veteran is deceased, Mrs Cross is incapacitated and, as advised by her counsel, Mr Alwyn Cross is unable to add anything to the information contained in his statement.

27. It may be the account given by Mr Cross is accurate and the respective accounts given by his widow and son are not. The reverse may also be the case. Alternatively it may be that Mr Cross smoked during service for all of the reasons he, his widow and son proffered, but each failed to properly record their understanding. A further possibility is that any apparent discrepancy is merely a matter of nuance and expression. The difficulty presented by Mr Cross’s untested and unsupported account, coupled with the at least partially inconsistent accounts given by his relatives, is that it is not possible to identify with any degree of confidence the reason or reasons he began smoking during service.

28. We are mindful that in deciding whether there was a causal connection between the development of Mr Cross’s smoking habit and service, that we must have regard to the beneficial nature of the Act together with the fact that we are not bound by the rules of evidence and must take into account any difficulties attributable to the effects of the passage of time, including the unavailability of witnesses (ss 119 (1) (f) & 119 (1) (h)). While each of the explanations proffered are plausible, on the material before us, we cannot be reasonably satisfied that the reasons given by Mr Cross or his family members, were in fact the reason he developed a smoking habit during service. In reaching that conclusion we accept that it is possible that there may be no material difference between what Mr Cross and his widow and son intended to convey by using the terms — “[it] appeared normal” and “peer pressure” — to explain why each understood Mr Cross started to smoke. While possible, we could not be satisfied to the requisite standard that this was the case.

29. The Writeway report relied upon by Mrs Cross states that smoking was commonplace among members of the service and cigarettes were readily available. Those findings are uncontroversial and accepted by us. The report however does not assist us in identifying the reason or reasons Mr Cross developed a smoking habit during service.

30. In the absence of better evidence we are unable to be reasonably satisfied that the connection between Mr Cross’s smoking and service was more than temporal in nature. Accordingly we must affirm the decision under review.

Consideration

21    The starting point in the submissions made by Mr Vincent, counsel for Mrs Cross, was that the Tribunal had evidence from three different sources each of which attributed the reason for Mr Cross’ smoking habit to something which may be said to be war-caused.

22    The vice in the Tribunal’s approach was then said to be that it failed to take into account the difficulties referred to in s 119(1)(h)(i), namely the difficulties in ascertaining the cause of Mr Cross’ smoking habit arising from effects of the passage of time, including the death of Mr Cross and the unavailability of Mrs Cross who was suffering from a disability.

23    Instead of adopting that course, as required by s 120(4) and s 119(1)(h)(i), the Tribunal was said to have determined the question by pointing to inconsistencies between the three different accounts of the cause of Mr Cross’ smoking habit in coming to the conclusion that it could not reach the requisite state of satisfaction in the absence of “better evidence”.

24    This error in the Tribunal’s approach to the question was said to be evident, in particular, in [27], [28] and [30] of its reasons.

25    Counsel for the Commission, Miss Henderson, emphasised the proposition which follows from s 120 that the Tribunal had to be satisfied to the relevant civil standard. She submitted that the Tribunal was mindful of this and the effect of its reasons was that the evidence did not enable it to reach the state of satisfaction required by s 120(4).

26    Miss Henderson drew my attention, in particular, to the acknowledgment by the Tribunal in [28] that it must have regard to the beneficial nature of the Act and, in particular, that it must take into account any difficulties attributable to the passage of time, including the unavailability of witnesses as required by, inter alia, s 119(1)(h).

27    In addition, Miss Henderson pointed out that, ultimately, the Tribunal accepted at [28] that there may be no material difference between the evidence of Mr Cross and his widow and son. But what was critical to the Tribunal’s reasons was, in Miss Henderson’s submission, that after accepting that there may be no real dissonance in the different versions of the explanation for Mr Cross’ smoking habit, the Tribunal could not be satisfied to the requisite standard that it was war caused.

28    On this approach, there could be no suggestion that the Tribunal had failed to take into account, or misapplied, the directions given in s 119(1)(h).

29    The proper construction and application of s 119(1)(h) has been explained in a long series of cases to which I was taken by counsel for both of the parties.

30    The seminal authority is the decision of a Full Court of this Court in Repatriation Commission v Bey (1997) 79 FCR 364 at 373-374. The decision has been referred to in many other cases including Mason v Repatriation Commission [2000] FCA 1409 at [75] and Fenner v Repatriation Commission (2005) 218 ALR 122 at [28].

31    The effect of the authorities is that it is not the function of s 119(1)(h) to fill in gaps where the evidence is not sufficient to support an applicant’s case. As Weinberg J said in Mason at [76], cases of the present type will usually involve problems of remembering details of events and s 119(1)(h) is designed to ensure that those matters are taken into account but these matters are not to prevail over the structure and text of the remaining provisions of the Act.

32    The observations made by Mansfield J in Fenner at [27] – [29] are to the same effect.

33    I do not accept the submission made by Mr Vincent that this line of authority is limited to cases where there is no evidence of a particular fact. The same approach is to be applied where there is insufficient evidence to enable the Tribunal to reach the requisite state of satisfaction: see Kowalski v Repatriation Commission [2010] FCA 409 at [50] – [54] and [97] – [98].

34    In Parnell-Schoneveld v Repatriation Commission [2003] FCA 153 at [46], I said that s 119(1)(h) lowered the standard of proof. This statement does not seem to have been referred to in other authorities, although the balance of what I said at [46] was followed by Mansfield J in Fenner at [27]. I accept the submission that my observation in Parnell-Schoneveld is too broadly stated. The subsection does not lower the standard which is established in s 120(4). That is plain from the other authorities to which I referred. As Mansfield J said in Fenner at [29], s 119(1)(h) is relevant to the way the Tribunal proceeds but it cannot remove the responsibility of applying s 120.

35    In my opinion, the Tribunal dealt with the matter in accordance with these principles. It recognised the beneficial nature of the Act and the need to take into account matters such as the unavailability of Mr Cross and the difficulty in having Mrs Cross attend to give evidence. After allowing for these difficulties in accordance with s 119(1)(h), the Tribunal went on to state that it could not be satisfied to the requisite standard. This was a reference to s 120(4).

36    I do not accept the submission made by Mr Vincent that the Tribunal’s approach was that it thought it had to resolve the apparent dissonance between the evidence of the witnesses. It is true that in [30] the Tribunal stated that “[i]n the absence of better evidence” it could not be reasonably satisfied that the smoking habit was war caused. However, it seems to me that the effect of the Tribunal’s remark in that sentence was that the evidence of the three family members was insufficient to satisfy the Tribunal to the prescribed standard that Mr Cross’ smoking habit was “war-caused”.

37    That seems to me to be borne out by the Tribunal’s acknowledgment that there may be no material difference between three explanations which had been proffered. Also, as I have said, it made express reference to s 119(1)(h). It follows in my view that the reference to “better evidence” was not to better evidence from the three sources. Rather, the Tribunal proceeded on the basis of the evidence it had and, after making allowance for the unavailability of Mr and Mrs Cross, was not satisfied that Mr Cross’ smoking habit was war-caused.

38    Mr Vincent referred me to the decision of the Tribunal in Re Noshirf CJ Rustomjee and Repatriation Commission [1987] AATA 300. The Tribunal there said at [29] that s 119(1)(h)(ii) indicates that the Tribunal may rely on the best evidence available, taking into account the fact that more precise proof of the events is not possible due to the absence of official records.

39    It is unnecessary for me to decide whether that represents an accurate statement of the principle that applies to either limb of s 119(1)(h). It is sufficient to say that even if it does apply to s 119(1)(h)(i), it does not assist the applicant in the present case. This is because the Tribunal considered all the evidence that was available, took into account the unavailability of witnesses and yet was not satisfied to the standard required by s 120(4).

40    It follows that the application must be dismissed.

Associate:

Dated:    15 March 2013