FEDERAL COURT OF AUSTRALIA

McKenzie v Repatriation Commission [2014] FCA 777

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

A.    INTRODUCTION

1    The applicant, Dawn McKenzie, is the widow of the late Howard McKenzie who was a member of the Royal Australian Air Force (“RAAF”) from 1942 to 1946 during World War II, and served in the Philippines in 1945. On 27 July 2009 Mrs McKenzie applied to the respondent, the Repatriation Commission (“Commission”), for a widow’s pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The essence of her claim is that, due to the peer group pressure, stress and boredom of his operational service in the Philippines, Mr McKenzie commenced to smoke 10-15 cigarettes per day or equivalent other tobacco products, and continued to do so until 1952. She claims that his smoking habit caused him to suffer oesophageal cancer. It is uncontentious that Mr McKenzie died as a result of cardiomyopathy contributed to by treatment for oesophageal cancer. Mrs McKenzie claims that Mr McKenzie’s death was therefore “war-caused” under the Act, as it arose out of or was attributable to his war service.

2    On 20 November 2009 the Commission refused her application. Mrs McKenzie then appealed to the Administrative Appeals Tribunal (“Tribunal”). On 11 April 2013 the Tribunal affirmed the decision to reject her claim (McKenzie v Repatriation Commission [2013] AATA 216) (“the Tribunal decision”).

3    Mrs McKenzie now appeals from the Tribunal decision pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), raising a question or questions of law.

4    For the reasons set out below I consider that in dealing with Mrs McKenzie’s claim the Tribunal failed to correctly apply s 120(3) of the Act, as affected by s 120A, and did not properly follow the decision-making process described by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”) at 97-98. I allow the appeal.

B.    THE LEGISLATIVE FRAMEWORK AND RELEVANT PRINCIPLES

5    Section 13(1) of the Act provides that where the death of a veteran is war-caused the Commonwealth is liable, subject to the Act, to pay a pension by way of compensation to the veteran’s dependants. There is no dispute that Mr McKenzie was a veteran.

6    Section 8(1)(b) of the Act provides that for the purposes of the Act the death of a veteran shall be taken to have been “war-caused” if it “arose out of, or was attributable to, any eligible war service rendered by the veteran”. Sections 6A-6F and 7 of the Act define “eligible war service” as including operational service in a variety of circumstances. There is no dispute that Mr McKenzie rendered eligible war service.

7    Section 120 sets the standard of proof applicable to the question of whether the death of a veteran is war caused within the meaning of s 8. Relevantly ss 120(1) and (3) provide:

Standard of proof

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

Note: This subsection is affected by section 120A.

…

(3)    In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

…

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

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

Note: This subsection is affection by section 120A.

…

8    Section 120(1) provides that where a pension claim relates to the death of a veteran who has rendered operational service the claimant is entitled to the benefit of a reverse criminal law standard of proof. The Commission shall determine that the veteran’s death is war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. While the provision does not go so far as to impose a presumption that a veteran’s death is war-caused, there is no onus on a claimant to prove that it is: s 120(6); Deledio at 98 per Beaumont, Hill and O’Connor JJ.

9    Section 120(3) though provides that where the Commission is of the opinion that the material before it does not raise a “reasonable hypothesis” connecting the veteran’s death with the circumstances of his or her service then the Commission’s satisfaction beyond reasonable doubt – that the veteran’s death is not war-caused for the purposes of s 120(1) – is deemed to have been established. That is, if the material before the Commission does not raise a reasonable hypothesis then the requisite causal connection is deemed not to exist.

10    The “reasonable hypothesis” concept in s 120 was introduced into the Act by s 16 of the Repatriation Legislation Amendment Act 1985 (Cth) and then substantially re-enacted in the current Act. As the High Court noted in Bushell v Repatriation Commission (1992) 175 CLR 408 (“Bushell”) at 413-414 per Mason CJ, Deane and McHugh JJ, the rationale for the amendment was to respond to a perceived loosening in the criteria for a successful claim following its decision in Repatriation Commission v O’Brien (1985) 155 CLR 422.

11    An amendment of the Act in 1994 introduced s 120A which brought in a new mechanism in relation to the “reasonable hypothesis” concept. It provides for an expert medical body to set a Statement of Principles (“SoP”) which operates to regulate the soundness of the medical and scientific basis of an asserted hypothesis.

12    Section 120A relevantly provides:

Reasonableness of hypothesis to be assessed by reference to Statement of Principles

…

(3)    For the purposes of subsection 120(3), a hypothesis connecting … the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)    a Statement of Principles determined under subsection 196B(2) or (11)

…

that upholds the hypothesis.

…

13    The courts have considered s 120(3) and its relationship with ss 120(1) and 120A on many occasions. I will deal with the authorities later in these reasons and for the present it suffices to note that in Deledio (at 97-98) the Full Court described the following four step process for making a decision under s 120 of the Act (“the Deledio process”):

(1)    The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

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

(3)    If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.

(4)    The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In doing so, no question of onus of proof or the application of any presumption will be involved. (Emphasis added.)

14    Apart from one qualification (which is not relevant in the present case) this four step process has been consistently endorsed and applied in numerous single judge and appellate decisions. The qualification – that the second sentence in the second paragraph is not correct – was noted by the Full Court in Woodward v Repatriation Commission (2003) 131 FCR 473 at [55] per Black CJ, Weinberg and Selway JJ. The words of the Act must guide my analysis but I note that neither party contended that Deledio is incorrect or that the Deledio process should not be followed.

15    It is well-established that the Act is intended to operate beneficially for veterans and their dependants. As Heerey J said in Deledio v Repatriation Commission (1997) 47 ALD 261 (“Deledio v Repatriation Commission”) at 263:

Australian repatriation legislation has long contained provisions for the resolution of disputed claims unusually favourably to claimants, as compared with claims for other government benefits. These procedural advantages are only understandable as a national acceptance that volunteering to put life and health at risk for the nation demands special recognition when that risk eventuates. Amongst other things, legislation introduced in the 1970s required a reverse criminal burden of proof; the claim had to be disproved by the relevant authority and, not only that, disproved beyond reasonable doubt… [A]n Australian volunteer being wrongly denied a benefit is seen as so unjust that, to avoid it, society will accept a system which results sometimes in payment of unjustified claims… [T]he element of national gratitude helps to explain a consistent theme in Australian repatriation legislation, a linkage between the risks undergone in service and the ease of proof of claims… (Emphasis added.)

See also Bawden v Repatriation Commission (2013) 134 ALD 68 at [21] per Gray J; Forrester v Repatriation Commission [2013] FCA 898 (“Forrester”) at [19] per Mortimer J. This legislative purpose must be kept in mind in construing the Act.

C.    The TRIBUNAL DECISION

16    It is plain from the decision that in determining Mrs McKenzie’s claim the Tribunal purported to follow the Deledio process.

The uncontentious determinations

17    At [36]-[52] the Tribunal determined four issues in favour of Mrs McKenzie’s claim. These findings are not the subject of appeal and I set them out under the headings used in the Tribunal decision so as to put the appeal in its context.

Issue 1: Did Mr McKenzie render operational service and if so, when?

18    The Tribunal found at [36] that Mr McKenzie rendered operational service in the period 10 July 1942 until 25 January 1946. However the Commission notes (and Mrs McKenzie did not dispute) that this is an error and that the correct period of his operational service in the Philippines was 1 August 1945 to 27 October 1945.

Issue 2: What was the kind of death met by Mr McKenzie?

19    On the basis of the death certificate and autopsy report together with the evidence of several treating and consultant medical practitioners the Tribunal found at [37]-[38] that Mr McKenzie died of cardiomyopathy which was contributed to by his treatment for oesophageal cancer.

Issue 3: Considering all the material before the Tribunal, does it point to a hypothesis connecting the death with the circumstances of the operational service?

20    The Tribunal considered this issue as step 1 of the Deledio process. Before the Tribunal Mrs McKenzie contended that the evidence pointed to the hypothesis that:

(a)    Mr McKenzie commenced smoking during his period of operational service as a result of peer group pressure, stress, boredom, and as a result of cigarettes and other tobacco products being supplied to him as part of his rations during his service and otherwise been readily available;

(b)    he smoked tobacco from approximately 1942 until 1952;

(c)    his smoking habit caused him to suffer cancer of the oesophagus; and

(d)    he died from cardiomyopathy to which his treatment for oesophageal cancer contributed.

21    At [42]-[43] the Tribunal decided that the material before it pointed to a hypothesis connecting Mr McKenzie’s death to his operational service. The Tribunal found that the material indicated that Mr McKenzie smoked for a period of about 10 years which commenced after his enlistment and ended before he met Mrs McKenzie. In addition the Tribunal found that there was material pointing to cigarettes being supplied to Mr McKenzie as part of his service rations and that he developed a particular interest in smoking to which he referred on several occasions in the letters to his family.

Issue 4: Is there a relevant Statement of Principles in force?

22    The Tribunal considered this issue as step 2 of the Deledio process. Having decided that the material before it pointed to a hypothesis connecting Mr McKenzie’s death to his operational service, step 2 of the process required the Tribunal to ascertain whether there was an applicable SoP in force.

23    The Tribunal held at [45] of its decision that there were two relevant Statements of Principles in force, being SoP No. 23 of 2007 concerning Cardiomyopathy and SoP No. 41 of 2007 concerning Malignant Neoplasm of the Oesophagus. It is common ground that two Statements of Principles may operate sequentially to uphold a hypothesis: McKenna v Repatriation Commission (1999) 86 FCR 144 at 151-152 per Branson, Sundberg and Kenny JJ.

24    SoP No. 23 concerning Cardiomyopathy relevantly provides:

4.    The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that cardiomyopathy and death from cardiomyopathy can be related to relevant service rendered by veterans…

…

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

    …

(zs)    undergoing a course of therapeutic radiation involving the mediastinum before the clinical worsening of cardiomyopathy;

25    SoP No. 41 concerning Malignant Neoplasm of the Oesophagus relevantly provides:

4.    The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that malignant neoplasm of the oesophagus and death from malignant neoplasm of the oesophagus can be related to relevant service rendered by veterans…

…

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

…

(c)    For adenocarcinoma of the oesophagus only, smoking at least five pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of malignant neoplasm of the oesophagus, where smoking commenced at least five years before the clinical onset of malignant neoplasm of the oesophagus;

…

9.    For the purposes of this Statement of Principles:

…

“pack years of cigarettes or the equivalent thereof in other tobacco products” means a calculation of consumption where one pack year of cigarettes equals 20 tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor-made cigarette approximates 1 gran of tobacco or 1 gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3 kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or any combination;

26    The parties agree that the criteria in SoP No. 41 providing for a minimum consumption of five pack years of cigarettes indicates a requirement for consumption of 10 cigarettes a day (or equivalent other tobacco products) for 10 years or equivalent consumption such as 20 cigarettes a day for five years. It must include other possible variations of the quantity of cigarettes smoked and the time period over which that occurred including, say, smoking 15 cigarettes a day for seven and a half years.

The disputed determination

Issue 5: Is the hypothesis consistent with the template within each of the Statements of Principles?

27    Having decided these four issues the Tribunal then moved (under step 3 of the Deledio process) to form an opinion as to whether each applicable SoP upholds the asserted hypothesis. They will do so if the evidence before the Tribunal is consistent with or fits within the “template” in each applicable SoP.

28    The evidence that Mr McKenzie underwent radiotherapy to treat his oesophageal cancer led the Tribunal to form the opinion (at [53]) that it was consistent with the criteria in cl 6(zs) of SoP No. 23 concerning Cardiomyopathy.

29    That left the question as to whether the evidence before the Tribunal was consistent with the criteria in clause 6(c) of SoP No. 41. The Commission did not dispute that the asserted hypothesis is consistent with the template in that there was evidence pointing to Mr McKenzie’s smoking habit having commenced in the early 1940s and that this was more than five years before the clinical onset of his oesophageal cancer. But the Commission disputed that the material before the Tribunal pointed to Mr McKenzie having smoked at least five pack years of cigarettes (or the equivalent in other tobacco products) and it argued that therefore SoP No. 41 did not uphold the asserted hypothesis.

30    The Tribunal rejected Mrs McKenzie’s claim, deciding at [59]-[62] as follows:

[59] Having considered all of the material before me I have determined that there is no material pointing to factor 6(c) in the Statement of Principles concerning Malignant Neoplasm of the Oesophagus in that there is no material pointing to the required minimum quantity of cigarettes and/or other tobacco products smoked by him prior to the onset of the malignancy.

[60] Although Mrs McKenzie said that she believed Mr McKenzie was a moderate smoker and that in her mind moderate was equivalent to smoking about 20 cigarettes per day, this was speculation on her part. She said that she did not know how many cigarettes Mr McKenzie smoked and properly raised the rhetorical question, how could I know? Ms [Janene] McKenzie did not provide any information as to the extent of her father’s consumption of tobacco.

[61] The letters written by Mr McKenzie indicate that he smoked tobacco and had a considerable interest in obtaining his ration of cigarettes. They do not provide any material pointing to the quantity of cigarettes consumed. In taking account all of the material I have considered the material suggesting that Mr McKenzie may have had an interest in trading cigarettes. It is important to note that the requirement of the Statement of Principles requires a consumption of at least five pack years, which, in Mr McKenzie’s case would require material pointing to his having consumed the equivalent of 10 cigarettes per day for the whole of the time he smoked.

[62] I therefore determine that the hypothesis raised by Mrs McKenzie fails to fit within the template of the Statement of Principles No. 41 of 2007 and, for this reason her claim must fail. (Emphasis in original.)

D.    THE APPEAL

31    The appeal revolves around these four paragraphs of the Tribunal decision. It is centred on the contentions that the Tribunal misapplied s 120(3) of the Act as affected by s 120A, and engaged in impermissible fact finding at step 3 of the Deledio process.

32    The Notice of Appeal alleges two questions of law, as follows:

1.    Whether there was any material before the Tribunal which pointed to a hypothesis connected with the veteran’s war service that the malignant neoplasm of the oesophagus which contributed to his death had been caused by his having smoked at least five pack years of cigarettes during a period which commenced at least five years before the clinical onset of the disease.

2.    Whether it was open on the material before the Tribunal for it to have concluded that there was no material pointing to the hypothesis.

33    The Notice of Appeal sets out the following grounds of appeal:

1    The Tribunal erred in finding that the material before it did not point to the veteran having smoked at least five pack years of cigarettes before the clinical onset of malignant neoplasm of the oesophagus.

2    The Tribunal misapplied s 120(3) of the Act by embarking on a fact finding exercise at step 3 of the process of reasoning referred to in Deledio; and

3    The Tribunal erred in finding that the material before it did not point to a hypothesis connecting the veteran’s death with the circumstances of his service.

34    The Commission argues that these grounds seek review of the evidence and the merits of the Tribunal’s decision, and contends that asking “whether there is any material” or indeed “whether it is open on the material” are not formulations of questions of law. However it accepts that the appeal discloses a question or questions of law which may be stated as:

Did the Tribunal err in the application of s 120(3) of the Act or in reference to the decision-making exercise set out by the Full Court in Deledio?

Counsel for Mrs McKenzie was content with this formulation of the question of law, and I will deal with the appeal on this basis.

E.    CONSIDERATION

35    In brief, counsel for Mrs McKenzie argues that:

(a)    the Tribunal misapplied s 120(3) and engaged in impermissible fact finding at step 3 of the Deledio process; and

(b)    the Tribunal required that precise evidence be adduced to support the asserted hypothesis at every point, when s 120(3) required no more than that the material before it pointed to the existence of the required criteria in SoP No. 41 such that the hypothesis fits within the SoP.

36    Counsel for the Commission rejects these contentions and submits that the Tribunal correctly applied s 120(3). It argues that the effect of ss 120(3) and 120A and the applicable SoP is to provide for a specific template that solely exists so that the decision-maker can ask: Is this a reasonable hypothesis in the sense that it fits the medical or scientific factors that have been set by the relevant medical experts?

37    It relies on East v Repatriation Commission (1987) 16 FCR 517 (“East”) at 533 per Jenkinson, Neaves and Wilcox JJ. In relation to the requirement for quantitative evidence their Honours said:

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.

The Commission relies on this passage as emphasising the need for quantitative evidence where, as in the present case, the applicable SoP sets out quantitative criteria. It argues that the poor quality and content of the evidence regarding the quantity of tobacco Mr McKenzie smoked and the duration over which he did so meant that the Tribunal did not have a “reason to believe” that factor 6(c) in SoP No. 41 existed.

38    I accept the Commission’s contention that it is wrong to attribute much significance to the Tribunal’s use of the word “determination” in expressing its conclusions at [59]: see Riley v Repatriation Commission [2008] FCA 531 (“Riley”) at [44] per Edmonds J. The Commission argues that the Tribunal’s determination that there was “no material” pointing to Mr McKenzie’s consumption of the required minimum quantity of cigarettes was not a factual finding. It relies on the observation of Allsop J (approved by Lindgren and Emmett JJ) in Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 (“Collins”) at [48(e)], where his Honour explained that the Tribunal’s task at this stage of the inquiry in the following terms:

The formation of the opinion involves the reaching of a factual conclusion:  Bull 188 ALR at 760-62 [17] to [25] and involves the assessment of all the material before the Tribunal, but not the finding of facts or rejecting material:  Bull 188 ALR at 761 [22].

The Commission argues that the Tribunal did not misapply s 120(3) in reaching the conclusions that it did at [59]-[62], and that its assessment of the factual material before it was no more than was necessary for the proper performance of its task.

39    The Commission also seeks to rely on the remarks of Mortimer J in Forrester at [72]-[73] where her Honour said:

To “fit” a SoP, the hypothesis must “fit” the causal aspect of the SoP and in that sense identify a relationship between the factor or factors relied on in the SoP and the veteran’s war service. The hypothesis will then be reasonable (in a medical or scientific sense), because it is consistent with what the relevant medical experts have determined is a relationship between a disease, injury or death, and factors causative of that disease, injury or death and war service.

However this step in Deledio simply involves comparison between the hypothesis as articulated and the relevant SoP: after the introduction of s 120A, this aspect of determining reasonableness of the hypothesis largely centres on a matching exercise between the asserted hypothesis and the SoP, without a view being formed of particular facts.

40    On the Commission’s submissions s 120(3), as affected by s 120A, required the Tribunal to make a factual assessment as to whether the hypothesis asserted by Mrs McKenzie matched the applicable SoP, and its conclusions did not constitute impermissible fact finding. It contends that the Tribunal’s conclusions that there was “no material” are properly characterised as part of the Tribunal’s assessment of the material before it rather than as a factual finding. It submits that the Tribunal simply assessed the statements of Mrs McKenzie in the context of all of her evidence and determined that it did not point to the existence of the required criteria in SoP No. 41.

41    On the Commission’s argument, what the Tribunal meant by its conclusions at [59] is that it considered the evidence as to Mr McKenzie’s consumption of cigarettes so vague or uncertain as to be insufficient to show that he had consumed the required quantity of cigarettes or other tobacco products. It says that this conclusion is unremarkable and does not show any misapplication of s 120(3) of the Act or impermissible fact finding. On this argument the Tribunal undertook the necessary consideration of the evidence before it, in accordance with the requirements of the Act, and the result of that consideration was that it was not satisfied that an essential factor in the SoP existed.

42    The Commission also seeks to draw comfort from the decision in Elliott v Repatriation Commission (2002) 73 ALD 377 (“Elliott”) where Stone J at [25] found no illicit fact finding in the Tribunal’s assessment of the evidence in that case and the formation of its opinion as to what could be drawn from it.

43    I do not accept the Commission’s contentions. I consider that in reaching its conclusions at [59]-[62] the Tribunal misapplied s 120(3) as affected by s 120A and impermissibly descended into fact finding.

44    The passage in East which the Commission cites must be read in context and it does not go as far as the Commission contends. In East (at 532-533) the Full Court reviewed the history of the Act and explained the parliamentary intention behind the 1985 introduction of the “reasonable hypothesis” concept. Their Honours said:

The adoption of Brennan J’s notion of a reasonable hypothesis meant that Parliament was requiring something by way of a causal link, but, which fell short of proof of the link - even prima facie - as a fact. The meaning of the phrase “reasonable hypothesis” was felicitously explained by a Veterans’ Review Board in Stacey (unreported Nos V83/0396, V84/0821 and V28/072, 26 June 1985); words quoted by the Administrative Appeals Tribunal in Re Dell and Repatriation Commission (1986) 5 AAR 253 at 254-255:

“A hypothesis may be conveniently defined as: ‘proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption’: The Concise Oxford Dictionary.

…

The addition of the word ‘reasonable’ would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of accountability of credibility - it must not be obviously fanciful, impossible, incredible or not tenable or to promote or too tenuous. For a reasonable hypothesis to be ‘raised’ by material before the Board, we think it must find some support in that material - that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact. Were it otherwise, it would no longer be a hypothesis but would have been elevated to some higher status….

We agree with this analysis. A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.

Quantitative evidence

The second submission put on behalf of the applicant in connection with s. 120 is that the Tribunal was wrong to reject Dr Hainsworth’s evidence because he omitted to give any quantitative evidence of the factors to which he referred. The argument is that it can never be right to reject an hypothesis that factor A caused the veteran’s condition B because of an absence of evidence as to the quantity or intensity of A experienced by the veteran.

Given the findings of the Tribunal, it is not clear that the correctness of this contention would affect the outcome of the present case. But, in any case, the contention goes too far. 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 relevant. 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. (Emphasis added.)

45    In my view East simply stands for the well-accepted proposition that the relevant element of an asserted hypothesis must be ‘“pointed to” or ‘“raised” by the evidence, and not merely left open. East does not require, at this stage of the inquiry, that each factual element of the hypothesis be proved by making findings on conflicting evidence or that precise evidence be adduced to finally make out each element.

46    Prior to the introduction of s 120A the High Court set out the methodology for a decision under s 120 in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, per Mason CJ, Gaudron and McHugh JJ. Their Honours explained that proof of facts is not necessary under s 120(3), and said:

The position may be summarised as follows:

(1)    First, subs (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, subs (1) of s 120 is applied. The claim will succeed unless:

(a)    one or more of the facts necessary to support the hypothesis are disapproved 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. (Emphasis added.)

47    In Bushell at 413, per Mason CJ, Deane and McHugh JJ, the High Court again dealt with the reasonable hypothesis concept and explained that the decision-maker is not required to resolve evidentiary conflict under s 120(3):

…s. 120(3) is not exhaustive of the content of s. 120(1). Sub-section (3) is concerned with whether “the material” raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of sub-s. (3), as demonstrated by its terms and its history, is to ensure that a claim to which s. 120 applies is not met unless there is some material which raises the relevant causal hypothesis. (Emphasis added.)

Their Honours said at 414:

The material will raise a reasonable hypothesis within the meaning of s. 120(3) if the material points to some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.

Brennan J expressed a similar view at 428.

48    In Deledio v Repatriation Commission Heerey J undertook a comprehensive review of the history of Australian repatriation legislation, later endorsed on appeal by the Full Court. In regard to the introduction of s 120A his Honour explained (at 273):

…the 1994 amendments left intact the twin pillars of (i) the reverse onus of proof beyond reasonable doubt and (ii) the reasonable hypothesis. Accordingly, the new regime of SoPs has to be given an operation consistent with s 120(1) and 120(3) as expounded by the High Court in Bushell and Byrnes.

I respectfully agree.

49    His Honour said (at 275):

…it is necessary to repeat that the SoP has no function in relation to the proof or disproof (under s 120(1)) of the particular facts of a veteran’s case. The SoPs function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent - so that the SoP can “uphold” the hypothesis. In the words of the minister (Hansard, 9 June 1994, at 1808) the SoPs were intended to “provide the template within which the individual claims will be determined”. Put another way, the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where an SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact…

The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:

(i)    contrary to proved or known scientific facts;

(ii)    obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or

(iii)    (since 1994) inconsistent with (not upheld by) an applicable SoP. (Emphasis added.)

50    His Honour’s approach was upheld on appeal in Deledio. As I have said, since then the four step Deledio process has been followed in numerous single judge and appellate decisions. The authorities show that proof of facts is not required at steps 1-3 of the Deledio process, and that fact finding at these stages is impermissible. For example in Dixon v Repatriation Commission [1999] FCA 582 at [25] Wilcox J held:

The question whether a decision maker reaches a conclusion adverse to a claimant at the step 3 stage or the step 4 stage is not a mere technicality. If belief is addressed at the step 3 stage, there is a risk that the decision maker will rule against a claimant simply because he or she is not persuaded the claimant’s story is probably true… This would defeat the protection for veterans embodied in s 120(1), whereby a claim which fits within the factors in the relevant Statement of Principles must be accepted unless the decision maker is satisfied, beyond reasonable doubt, that it is without justification. (Emphasis in original.)

See also Elliott at [5] per Stone J; Riley at [11] per Edmonds J.

51    In Collins at [8] Lindgren J confirmed that the resolution of evidentiary conflict was impermissible in the first three stages of the Deledio process. His Honour said:

At the first three stages, the Tribunal is required to deliberate at a level of abstraction and it is only at the fourth stage that it is required to descend to the resolution of evidentiary conflict, and it is then required to do so according to the “beyond reasonable doubt” standard.

52    At [48]-[49] Allsop J, with the approval of Lindgren and Emmett JJ, explained the decision-maker’s task under ss 120(3) and 120A in the following terms:

Without seeking to qualify the authorities to which I have referred, I take the following to be settled and uncontroversial principles concerning the undertaking of the task in s 120(3) as affected by the existence of a SoP under s 196B and by s 120A(3):

(a)    The Tribunal must consider the whole of the material before it:  s 120(3).

(b)    The Tribunal is to form an opinion whether the material raises a reasonable hypothesis connecting the injury, disease or death with the circumstances of service:  s 120(3).

(c)    The formation of that opinion involves consideration as to whether a relevant SoP upholds the hypothesis:  s 120A(3).

(d)    At the stage of formation of the opinion in (b), involving the consideration in (c), no question of fact finding arises:  Deledio 83 FCR at 97.

(e)    The formation of the opinion involves the reaching of a factual conclusion:  Bull 4 AAR 326; 188 ALR 756 at [17]-[25] and involves the assessment of all the material before the Tribunal, but not the finding of facts or rejecting material:  Bull 4 AAR 326; 188 ALR 756 at [22].

As has been shown in a number of cases concerning ss 120(3) and 120A, the dividing line between impermissible fact finding and required assessment of all the material in the formation of an opinion as to whether a hypothesis is reasonable in connecting the injury, disease or death with the circumstances of service and as to whether a relevant SoP upholds the hypothesis is not necessarily easy to discern.  The kinds of fine questions that can arise were discussed in Elliott v Repatriation Commission (2002) 73 ALD 377; Cameron v Repatriation Commission (2003) 77 ALD 81; Repatriation Commission v Bey (1997) 79 FCR 364; and Gleeson v Repatriation Commission 34 ALD 505… (Emphasis added.)

53    In the present case the Tribunal was required to form an opinion as to whether the evidence before it pointed to the existence of the required criteria in SoP No. 41. If it did then the SoP would uphold the asserted hypothesis and it would be a reasonable one. The real question is whether in making a factual assessment in order to form an opinion the Tribunal crossed the dividing line and descended into impermissible fact finding. As Allsop J observed, this line can be difficult to discern.

Did the Tribunal descend into impermissible fact finding?

54    The Tribunal’s task at this stage of the s 120(3) inquiry was to form an opinion as to whether SoP No. 41 upheld the asserted hypothesis. The authorities show that it would do so if the evidence before it “pointed to” Mr McKenzie having smoked the required minimum quantity of cigarettes or other tobacco products. But instead of looking at what facts were pointed to or raised by the evidence the Tribunal engaged in a process of weighing the evidence, preferring some parts of it to other parts, and ultimately rejecting some of it. It also used the discourse of fact finding. I consider the Tribunal misunderstood its task under s 120(3) and asked itself the wrong question. It did not follow step 3 of the Deledio process.

55    That the Tribunal descended into impermissible fact finding is plain when, in the light of all the evidence that was before it, one considers its conclusion that there was “no material” pointing to Mr McKenzie’s consumption of the required minimum quantity of cigarettes or other tobacco products.

The evidence of Mr McKenzie’s cigarette consumption

56    The evidence before the Tribunal as to Mr McKenzie’s consumption of cigarettes or other tobacco products is set out in its decision at [5]-[24].

Mrs McKenzie’s evidence

57    Mr and Mrs McKenzie were married in 1953. Mrs McKenzie gave evidence that she first met Mr McKenzie about one year before their marriage and that he did not smoke after they met. At [5]-[12] the Tribunal sets out her evidence that Mr McKenzie told her that:

(a)    when he was serving in the Philippines his duties involve the interception and de-coding of Japanese Army signals;

(b)    his duties in the Philippines were stressful. He undertook long shifts which were tedious and he felt keenly the sense of responsibility which these duties imposed upon him;

(c)    he began smoking during his service years as he worked in a small group and he felt pressure to smoke;

(d)    tobacco was readily available during his service and he received tobacco rations;

(e)    there were long periods during service when he was inactive and felt bored and he would pass the time by smoking; and

(f)    his smoking habit extended for approximately 10 years, from about the time of his enlistment until shortly before they met.

58    When Mrs McKenzie gave evidence on 11 February 2013, she initially said that Mr McKenzie did not tell her how much he smoked but that she understood that he smoked 10-15 cigarettes per day. She later testified that he had told her that he smoked 10-15 cigarettes per day.

59    When she gave evidence at an earlier hearing on 3 November 2011 Mrs McKenzie said that she did not know how many cigarettes per day Mr McKenzie smoked. But she said that she believed Mr McKenzie had been a “moderate” smoker and that by moderate she meant a consumption of 10-15 cigarettes per day.

Janene McKenzie’s evidence

60    Janene McKenzie, the middle-aged daughter of Mr and Mrs McKenzie, gave evidence (which the Tribunal set out at [13]-[14]) that when she was about 10 years old she had a conversation with her father during which she asked him if he had ever smoked. She said that he replied that he was a “keen smoker” and that he smoked anything he could get his hands on. She also recalled her father telling her that he found smoking inconvenient whilst at work and that he smoked “a lot”.

Contemporaneous letters from Mr McKenzie to his family

61    Numerous letters sent home by Mr McKenzie while he was in the Philippines were tendered in evidence. Extracts from his letters are set out at [15]-[21] of the Tribunal decision and include the following statements:

(a)    “Cigarettes are for sale on board for 3/- per carton of 200, which of course is less duty, which boosts up prices many times ashore”;

(b)    28 June 1945 – “We are get [sic] 600 cigarettes for a pound very shortly. Not bad eh!”

(c)    24 July 1945 – “All along the railway line the local kids + grown ups crowded around the train trying to exchange Jap invasion money for cigarettes which by the way are worth a peso a packet (3/1) of twenty to sell to the natives”;

(d)    5 August 1945 – “As this is still supposed to be an operational area, we receive a free issue of American cigarettes – a packet of twenty a day … We got our “comforts issue” as they call it tonight. It consisted of five packets of yank Raleigh cigarettes & five boxes of matches. We have an issue every five days & so are allowed twenty cigarettes per day”;

(e)    9 August 1945 – “I also bought a pipe at the Yank canteen for three shillings”;

(f)    17 August 1945 – “…I still have my pipe & even went so far as to buy some cleaners for it tonight, because two chaps moved out of the tent as a protest against the high scent of the rattling thing. (It wasn’t quite as bad as that but I still have it anyway)”; and

(g)    17 September 1945 – “I had to go to Manilla the other day to pick up our ration of smokes…”

Evidence regarding Mr McKenzie’s smoking history in medical records

62    Some, but not all, of the clinical notes of Mr McKenzie’s treating medical practitioners contain references to Mr McKenzie’s smoking history, which are as follows:

(a)    South West Health Care clinical notes:

(i)    29 October 1980 - “Non-smoker”;

(ii)    3 November 1999 – “Non-smoker for 50 years”;

(iii)    21 May 2004 – “Former, 60 years ago”;

(iv)    2 January 2005 - “Former”;

(v)    16 February 2009 - “Ever? Yes. Stopped? 60 years ago”;

(vi)    26 April 2009 – “Never”;

(vii)    27 April 2009 - “Ever? Yes. Stopped? 1950”; and

(viii)    6 July 2009 - “Former 60 years ago”.

(b)    Epworth Health Care - 31 March 2003 - “Past 50 years ago”; and

(c)    Dr Menzies’ - 18 June 2003 - “Smoked 60 years ago”.

The Tribunal’s treatment of the evidence

63    As I have set out above, Mrs McKenzie gave uncertain and inconsistent evidence about her knowledge of the number of cigarettes that Mr McKenzie smoked per day. However, Mrs McKenzie’s evidence includes that she had been expressly told by Mr McKenzie that he commenced smoking while on operational service in the Philippines and that he smoked 10-15 cigarettes per day from then until he stopped smoking in about 1952.

64    The Tribunal was required to consider her evidence together with:

(a)    the evidence of Janene McKenzie that Mr McKenzie told her that on his return from service he smoked at work to the extent that it became inconvenient to do so, that he was a “keen smoker” and that he smoked “a lot”; and

(b)    Mr McKenzie’s letters which, amongst other things, indicate that he was issued with a packet of 20 American cigarettes a day, that he had also bought a pipe which he smoked, and that some of his fellow servicemen had moved out of his tent because of the smell of the pipe. This also indicates that he smoked a lot.

65    The Tribunal was obliged to consider all of the evidence before it, not just some of it. It was not permitted at step 3 of the Deledio process to reject some of the evidence or to engage in fact finding: see generally Gleeson v Repatriation Commission (1994) 34 ALD 505 at 509; Bull v Repatriation Commission (2001) 66 ALD 271 (“Bull”) at [21] per Emmett and Allsop JJ. Yet the Tribunal’s conclusion (at [59]) that there is “no material” pointing to Mr McKenzie having smoked the required minimum quantity of cigarettes and/or other tobacco products must be seen as a rejection of Mrs McKenzie’s evidence that he expressly told her that he smoked 10-15 cigarettes per day. The Tribunal’s conclusion (at [60]) that Mrs McKenzie did not know how many cigarettes Mr McKenzie smoked and that her evidence as to his cigarette consumption was “speculation” must also be seen as a rejection of that evidence. These conclusions indicate that the Tribunal evaluated and selectively dealt with the material before it, and that it was finding facts rather than simply identifying the raised facts: Bull at [3] per Moore J.

66    I note too that in finding that there was “no material” the Tribunal used the language of fact finding to describe the material before it. The Tribunal’s characterisation of Mrs McKenzie’s evidence as “speculation” was a qualitative assessment of her evidence redolent of the language of fact finding: see Repatriation Commission v Patterson (2006) 94 ALD 66 at [24] per Kiefel, Sundberg and Edmonds JJ.

67    In embarking on the evaluative process of weighing the evidence and resolving the evidentiary conflict the Tribunal showed that it misunderstood the nature of the inquiry that it was required to undertake at that stage, and it engaged in impermissible fact finding.

68    Although decisions in other factual circumstances are of limited assistance, I note that the present case is analogous to Tunks v Repatriation Commission (2008) 102 ALD 274. In that case the Tribunal rejected an application for a pension by a widow who claimed that her late husband’s death from prostate cancer was war-caused. The applicable SoP set out the requirement for a minimum 40% increase in the veteran’s dietary animal fat consumption during his service, up to at least 50 g per day, and maintenance of the animal fat intake at that level for at least five years within the 25 years before the clinical onset of the cancer.

69    The Tribunal considered that the evidence did not establish that the veteran’s dietary intake of animal fat had increased by 40% during his war service, and doubted the accuracy of the widow’s recall of the veteran’s post-service diet. It concluded that there was “no reliable evidence whatsoever” as to his pre-service dietary intake of animal fat. The Tribunal rejected the widow’s claim.

70    Madgwick J noted at [35] that “[i]t is settled that the decision-maker is not to engage in fact finding during the first three Deledio steps (that is the application of s 120(3) as affected by s 120A).” At [40]-[41] his Honour held that in making the finding of “no evidence” the Tribunal had misconceived its function at that stage of the inquiry. His Honour said:

The “findings” referred to above were made by the Tribunal in its application of s 120(3).  The finding that there was “no evidence” of the veteran’s pre-service fat intake was clearly wrong, when there was evidence presented by the applicant, the veteran’s brother and a boyhood friend of the veteran regarding the diet of the veteran, as well as the evidence of the dietary survey from which, indeed, the Tribunal explicitly inferred a pre-service, daily animal fat intake: Borret at [30]; see also Gleeson v Repatriation Commission (1994) 34 ALD 505 at 509.  Further, the conclusion regarding the accuracy of the applicant’s recall of her husband’s post-service diet also demonstrates error on the Tribunal’s part, in terms of impermissible fact-finding: see Dixon at [24].

The lay evidence was to the effect that the deceased’s war service had dramatically changed his dietary habits so that, afterwards, he ate much more animal fat than before it.  This clearly “pointed to” or “raised” a hypothesis that the deceased had indeed increased his animal fat intake by a very large degree that may have equalled or exceeded 40%.  In my opinion, the failure to see this is indicative of the Tribunal having misconceived its function at that point of its inquiry or, as the applicant puts it, having asked itself the wrong question.

Madgwick J thereby rejected the Tribunal’s evaluative approach to the evidence and rejected any requirement for precise evidence that the deceased’s dietary animal fat intake meet the quantitative standard set in the applicable SoP.

71    I take a similar approach in the present case. In my view:

(a)    Mrs McKenzie’s evidence that Mr McKenzie told her that he smoked 10-15 cigarettes per day which commenced while he was on operational service and continued until about 1952;

(b)    Janene McKenzie’s evidence that Mr McKenzie told her that he was a “keen smoker”, that he smoked anything that he could get his hands on, that on his return from service he smoked at work to the point that it was inconvenient, and that he smoked “a lot”; and

(c)    the evidence in Mr McKenzie’s letters home of his consumption of cigarettes and other tobacco products while he was on service ;

clearly points to or raises that Mr McKenzie consumed five pack years of cigarettes or other tobacco products which is the minimum provided by SoP No. 41. In my view the Tribunal’s decision that the material before it did not point to that conclusion was made on the facts as found by it and not on the facts as raised by the evidence.

72    Further, in my view the Tribunal’s conclusion that there was “no material” was plainly wrong. Although the Tribunal ascribed little value to it, there was evidence by Mrs McKenzie, supported by the evidence of Janene McKenzie and Mr McKenzie’s letters, which pointed to his having smoked five pack years of cigarettes or other tobacco products. Taking into account all of the evidence before the Tribunal the conclusion that there was no material pointing to his having done so was not reasonably open to it: see Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 451 per Gleeson CJ, Gummow and Callinan JJ.

73    In Borrett v Repatriation Commission [2000] FCA 1829 at [30] Tamberlin J took a similar approach. That case concerned a widow’s claim where the asserted hypothesis was that the veteran’s alcohol drinking habit was caused or contributed to by his service, and that his rectal cancer was attributable to his alcohol consumption. The applicable SoP provided for a minimum consumption of 250kg of alcohol within any 25 year period before the clinical onset of the cancer. The widow gave evidence that the veteran did not drink alcohol until six months after he was discharged from service, while a psychiatrist and a colleague of the veteran gave some evidence as to his drinking habits during service. The Tribunal preferred the widow’s evidence and found that there was no evidence of the veteran’s drinking patterns while he was on service. Tamberlin J held that the Tribunal made an error of law in evaluating the material before it and deciding there was “no evidence”.

74    I am satisfied that the Tribunal erred in its application of s 120(3) as affected by s 120A, and engaged in impermissible fact finding at step 3 of the Deledio process. I find for Mrs McKenzie on the question or questions of law in the appeal.

F.    RELIEF

75    The Tribunal held at [63] that:

…had the hypothesis raised fitted within the template of the Statement of Principles I would not have been satisfied beyond a reasonable doubt that Mr McKenzie’s death was not war-caused.

That is, had the Tribunal decided step 3 of the Deledio process in Mrs McKenzie’s favour, at step 4 of that process it would not have been satisfied to the requisite standard that Mr McKenzie’s death was not war-caused.

76    Mrs McKenzie’s claim would therefore have been accepted, as it is uncontentious that:

(a)    Mr McKenzie rendered operational service (as the Tribunal found at [36]);

(b)    Mr McKenzie died of cardiomyopathy to which his oesophageal cancer contributed (as the Tribunal found at [37]-[38]);

(c)    the material before the Tribunal points to an hypothesis that connected Mr McKenzie’s death to the circumstances of his operational service (as the Tribunal found that [42]-[43]);

(d)    there are two relevant SoP in force, namely SoP No. 23 and SoP No. 41 (as the Tribunal found at [45]); and

(e)    the hypothesis connecting Mr McKenzie’s cardiomyopathy with his operational service is consistent with clause 6(zs) of SoP No. 23 (as the Tribunal found at [53]).

77    Where the Court considers that the Tribunal has made an error of law in its consideration of a matter, the usual order is that the Tribunal’s decision be set aside and that the matter be remitted to the Tribunal for further hearing and determination according to law. But given my judgment, and the Tribunal’s view at [63] in relation to step 4 of the Deledio process, I am concerned that there may be no utility in remitting the matter back to the Tribunal.

78    The Court has power pursuant to s 44(4) of the AAT Act to “hear and determine the appeal and make such orders as it thinks appropriate by reason of its decision.” It is well-established that where only one result consistent with the Court’s decision is possible, the Court may make a decision in substitution for that under review, thereby relieving both the Tribunal and the parties of the burden of a further hearing: Harradine v Secretary, Department of Social Security (1989) 25 FCR 35 at 36 per Wilcox J and 43 per French J, von Doussa J agreeing; Secretary, Department of Community Services and Health v Theologidis (1991) 33 FCR 186 at 191 per Gummow, Einfeld and Heerey JJ.

79    Mrs McKenzie contends that if the matter is remitted to the Tribunal only one decision is open to it. She argues that the Court should substitute its decision for the Tribunal’s decision and order that Mrs McKenzie be allowed the pension. The Commission contends that the matter should be remitted to the Tribunal and argues that any other course means that the Court would be substituting its factual finding for the findings of the Tribunal. The Commission contends that the Court should not do so because its power is primarily restricted to dealing with any question of law. The Commission argues that the Court should not make findings of fact under s 44(7) of the AAT Act when some evidence which the Commission argues is crucial (particularly the transcript of Mrs McKenzie’s evidence in 2011 and what counsel describes as “the unique qualities of her evidence in a viva voce context”) is not before the Court.

80    Counsel for the Commission submits:

The assessment of the evidence is properly the role of the tribunal, and all of the evidence is not before you. The evidence on the paper, even the transcript is not completely before you. The medical material is not before you. And the demeanour and….those intangibles that are present in any reception of evidence, of the demeanour of a witness and the flow of cross-examination and examination-in-chief is not before your Honour. So if you were….finding facts that are essentially inconsistent, your Honour would be making those factual findings in a dark hole.

81    In light of my decision on the question or questions of law and the Tribunal’s statement at [63], my tentative view is that if the matter is remitted to the Tribunal only one result is reasonably open to it. If the matter is remitted, and the Tribunal took the approach to the evidence that counsel submits is appropriate, in my tentative view it would again have misapplied s 120(3). I say this because evaluation of the evidence in that way, evaluating and dealing with its inconsistencies and making assessments of the demeanour of witnesses, is likely to again constitute impermissible fact finding. At step 3 of the Deledio process the Tribunal’s task is to form an opinion as to whether the material before it points to or raises Mr McKenzie having consumed the minimum quantity of five pack years of cigarettes or other tobacco products as provided by SoP No. 41.

82    The Court is empowered under s 44(7) of the AAT Act to make findings of fact in limited circumstances: see Comcare v Etheridge (2006) 149 FCR 522 at [17] per Branson J. The circumstances include having regard to the expeditious and efficient resolution of the matter, and the reduced expense to the parties of the Court finding facts, instead of remitting the matter to the Tribunal. I note that this matter has already been the subject of two hearings before the Tribunal, and that this is the second occasion upon which Mrs McKenzie has been successful on appeal.

83    It is plain in the present case that if it is appropriate for the Court to make a narrow factual assessment or finding it will expeditiously and efficiently resolve the matter and give rise to significant cost savings, but I have not reached a final view as to whether it is appropriate to do so. Before finalising my view I will provide the parties an opportunity to make further submissions, including as to the necessary factual assessment or finding (whether the decision-maker be the Court or the Tribunal), the scope of the evidence that the Commission argues is not before the Court, whether such evidence should be put before the Court, and the scope of the necessary factual inquiry.

Associate:

Dated:    25 July 2014