FEDERAL COURT OF AUSTRALIA

Iliopoulos v Repatriation Commission [2016] FCA 756

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

PAGONE J:

1    Mr Iliopoulos has appealed pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision made by the Administrative Appeals Tribunal on 4 September 2015 which affirmed a decision of the Veterans’ Review Board refusing his application under the Veterans’ Entitlements Act 1986 (Cth) (“the Entitlements Act”).

2    Mr Iliopoulos was born on 13 May 1950 and enlisted in the Australian Army on 8 July 1970. He began operational service in South Vietnam on 12 May 1971, which he completed on 21 October 1971, and was discharged from the army on 7 January 1972. On 6 March 1973 he made a disability claim for peritendinitis which was accepted by the Repatriation Commission. On 5 November 2012 Mr Iliopoulos lodged a claim for an increase in the disability pension claiming to suffer from bronchial asthma and skin rashes. The Repatriation Commission decided on 16 April 2013 that the bronchial asthma had no relation to Mr Iliopoulos’ service and that there was no medical condition related to the skin rashes. On 8 May 2013 the Veterans’ Review Board received Mr Iliopoulos’ application to review the decision of the Repatriation Commission. The Veterans’ Review Board affirmed the decision of the Repatriation Commission on 1 April 2014 but raised Mr Iliopoulos’ pension to 20% of the general rate. On 28 April 2014 Mr Iliopoulos applied to the Tribunal to have the decision of the Veterans’ Review Board reviewed. On 4 September 2015 the Tribunal affirmed the decision of the Veterans’ Review Board.

3    The appeal from the Tribunal’s decision centres on the Tribunal’s conclusion about an hypothesis concerning the connection between a chronic irritable cough syndrome suffered by Mr Iliopoulos and his service in Vietnam. Section 13 of the Entitlements Act makes the Commonwealth liable to pay a pension where a veteran is “incapacitated from a war-caused injury or a war-caused disease”. Section 5D of the Entitlements Act defines “disease” and “injury”, and s 9(1)(a) provides that a relevant injury or disease is taken to be a war-caused disease if the injury suffered or contracted resulted from an occurrence that happened while the veteran was rendering operational service.

4    Section 120 of the Entitlements Act deals with the standard of proof to be applied to determine whether a disease was war-caused. Subsections 120(1) and (3) provide:

120    Standard of proof

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

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:

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

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

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

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

Note:    This subsection is affected by section 120A.

[…]

The note to subsections 120(1) and (3) directs attention to the effect of s 120A upon their application, which requires the reasonableness of an hypothesis to be assessed by reference to a relevant Statement of Principles. In this case, however, it was found that there was no applicable Statement of Principles relating to Mr Iliopoulos’ chronic irritable cough syndrome with the consequence that the claim was to be determined under s 120 of the Entitlements Act by reference to the decided cases prior to the introduction of s 120A.

5    The claim by Mr Iliopoulos of connection between his chronic irritable cough syndrome and his service in Vietnam relied upon the evidence of Dr Jonathan Burdon who had provided two written reports and gave oral evidence to the Tribunal. Dr Burdon’s first report was dated 11 August 2014 in which he expressed the view that Mr Iliopoulos’ condition was unclear but that it was “possible” that Mr Iliopoulos suffered from irritant-induced asthma (“RIIDS”), being a low-level form of reactive airways dysfunction syndrome (“RADS”). Dr Burdon wrote in that report:

Mr lliopoulos suffers from a chronic persistent cough of unknown aetiology. The diagnosis is unclear.

I note that Professor Holmes told him that he had an “irritable throat/sensitive throat”. His symptoms have been thought to be caused by a number of different conditions. These include the asthma variants chronic reactive airways dysfunction syndrome (RADS) and chronic reactive upper airways syndrome (RUADS), asthma and gastro-oesophageal reflux. Asthma has been ruled out by careful lung function testing (see Professor Holmes’ report dated 6.7.13) and reflux is unlikely because of the current lack of symptoms and that a trial of anti-reflux medication was unhelpful. Coughing and other symptoms in RADS and RUADS are expected to occur at the time of, or within a few hours of exposure to toxic fumes or vapours, making these conditions unlikely. It is fair to say that the original descriptions of RADS indicated that there was an initial measureable degree of increased airway sensitivity (increased bronchial responsiveness) but that this later reverted, usually after about 3 months, to a normal degree of sensitivity.

A variant of RADS is the ‘Irritant-induced asthma’ (RIIDS) and is considered a low-level form of RADS (see AM Alberts and GA do Pico Reactive Airways Dysfunction Syndrome - Chest 1996 - copy attached) and is described to occur after repeated moderate or high level exposures as opposed to a single massive exposure, as in RADS. Given that RIIDS may not occur immediately after exposure, it is my view that it is possible that Mr lliopoulos suffers from this condition. If this is correct and I believe that it is, and with the information I presently have at hand, then Mr lliopoulos’ condition fits within the Statement of Principles of Asthma (No 60 of 2012 as attached to your briefing letter).

(emphasis in original)

Dr Burdon returned to these observations in his subsequent written report dated 8 September 2014 in which he accepted that exposure by Mr Iliopoulos to insecticides and defoliants such as Agent Orange “was responsible” for his condition. In that report Dr Burdon wrote:

Whilst the diagnosis of Mr. Iliopoulos’ chronic cough is not completely established, the history as given to me is that the cough commenced within one to two weeks of returning to Australia. Given that Mr. Iliopoulos was not exposed to any noxious substances following his return to Australia and that he does not recall developing a severe respiratory tract infection at that time, it is appropriate to look at earlier times for a possible explanation to the ongoing cough. Given that Mr. Iliopoulos was exposed to insecticides and defoliants such as Agent Orange and that these are toxic substances I would accept that such exposure was responsible.

(Emphasis added)

Both written reports were tendered in evidence and Dr Burdon was asked questions about his thought process in reaching the diagnosis he had given for Mr Iliopoulos’ condition in the report dated 8 September 2014. Dr Burdon had access to the other expert reports concerning Mr Iliopoulos’ condition and concluded his oral evidence in chief by expressing his opinion that there was “a reasonable link between the exposure to […] insecticides and chemicals in Vietnam and the development of [the] chronic cough”.

6    The Tribunal found, however, that the hypothesis of connection advanced by Mr Iliopoulos between his chronic irritable cough syndrome and his exposure to irritants while based in South Vietnam was not reasonable. At [89] the Tribunal said:

Applying the logic expressed by Professor Pearce and the many case studies with which I am familiar where the cause and effect relationship was under close scrutiny, Mr Iliopoulos’ exposure to irritants while based at Nui Dat does not, by itself, point to a causal connection. At its highest, it does not rise above a mere possibility. In his written reports, Dr Burdon did not go further than to say that he was of the opinion that there was a possible connection. When asked in evidence-in-chief about how he had arrived at his diagnosis, Dr Burdon said that he questioned Mr Iliopoulos about what he had been exposed to while in South Vietnam and upon being told that he had been exposed to defoliants and insecticide, he said that was a possible cause of his coughing. Respectfully, that evidence by itself does not point to a causal connection. Accordingly, I find on the material which was before me on the hearing of this matter that the hypothesis of connection advanced by Mr Iliopoulos between his chronic irritant cough syndrome and exposure to irritants while based in South Vietnam is not reasonable. It does not point to a hypothesis that chronic irritable cough syndrome may be caused by exposure to insecticides, or for that matter, herbicides. The association made by Dr Burdon is too remote or too tenuous.

There was other evidence before the Tribunal but none that contradicted that of Dr Burdon. Associate Professor Peter Holmes had also prepared a report dated 8 May 2015 and his report concluded with the view that he was “unable to provide a link between [Mr Iliopoulos’] current symptoms and his time in Vietnam”. Dr Andrew Jakobovits had also provided a written report dated 27 October 2014 which excluded Mr Iliopoulos suffering from a gastro-oesophageal condition, and the report of Dr Jakobovits was said by Dr Burdon to make him feel more comfortable with his diagnosis.

7    The amended notice of appeal to this Court from the decision of the Tribunal raised many grounds and questions of law including that the Tribunal’s conclusion of an absence of a reasonable hypothesis within the meaning of s 120(3) of the Entitlements Act was not open on the evidence or was otherwise incorrectly reached in light of the evidence of Dr Burdon. The challenge to the Tribunal’s decision was put in various ways, but it may be convenient to consider first those posed by questions 1, 8 and 9 (and the relevant grounds) in the amended notice of appeal. Those questions were:

1.    Did the Tribunal misconstrue s120 of the Veterans Entitlements Act 1986 (Cth) in holding that a hypothesis based on the raised facts and put forward by an expert in the relevant field of medical science was insufficient to raise a reasonable hypothesis connecting the Applicant’s condition of Chronic Irritable Cough Syndrome with his operational service?

[…]

8.    In finding that the material did not raise a reasonable hypothesis connecting the Applicant’s condition of Chronic Irritant Cough Syndrome with his operational service for the purpose of s120 of the [Entitlements Act] because Dr Burdon was not a medical practitioner eminent in the relevant field of respiratory medicine (at [84]), did the Tribunal:

(i)    fail to give adequate and sufficient reasons for its finding because there was material indicating that Dr Burdon was eminent in the field with 30 years of experience in the field?

(ii)    make a finding on the basis of no evidence because there was material indicating that Dr Burdon was eminent in the field with 30 years of experience in the field?

9.    In finding that the material did not raise a reasonable hypothesis connecting the Applicant’s condition of Chronic Irritant Cough Syndrome with his operational service for the purpose of s 120 of the [Entitlements Act] because Dr Burdon did not give evidence of a connection between the Applicant’s exposure to irritants during service and his cough (at [89]), did the Tribunal-

(i)    fail to give adequate and sufficient reasons for its finding because Dr Burdon gave evidence of a connection between exposure to irritants during service and Chronic Irritant Cough Syndrome, as the Tribunal itself noted at [83]?

(ii)    make a finding on the basis of no evidence because Dr Burdon gave evidence of a connection between exposure to irritants during service and Chronic Irritant Cough Syndrome?

[…]

Question 1 posed the challenge to the Tribunal’s use of the evidence of Dr Burdon as a question of the Tribunal’s construction of s 120 of the Entitlements Act. Question 8 challenged the Tribunal’s decision by asking whether the Tribunal failed to give adequate reasons or had made a finding that was not open on the evidence in its conclusion that the material did not raise a reasonable hypothesis connecting the operational service of Mr Iliopoulos with his chronic irritable cough syndrome in light of the evidence of Dr Burdon. Question 9 posed the challenge to the Tribunal’s conclusions in light of Dr Burdon’s evidence as a failure to give adequate or sufficient reasons, and as the making of findings in the absence of evidence.

8    The Commission was obliged to determine that the injury or disease claimed by Mr Iliopoulos relating to his operational service was a war-caused disease unless it was satisfied beyond reasonable doubt that there were no sufficient grounds for that determination: s 120(1). The Commission would be satisfied beyond reasonable doubt if it was “of the opinion that the material before it [did] not raise a reasonable hypothesis connecting the injury” or disease with the circumstances of the particular service rendered by Mr Iliopoulos: see s 120(3). In Bushell v Repatriation Commission (1992) 175 CLR 408 Mason CJ, Deane and McHugh JJ had said at 414 that it would be a rare case that an hypothesis would be considered unreasonable when put forward by a medical practitioner who was eminent in the relevant field of knowledge. Their Honours said at 414- 416:

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. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc. of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purpose of s. 120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran’s service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists. Thus, in Commissioner for Government Transport v. Adamcik, this Court held that there was reasonable evidence to support a claim for damages that emotional disturbance, brought on by an accident, had caused acute lymphatic leukaemia even though only one doctor supported the claim, others rejected it, and there was evidence that for nearly twenty years the medical literature had discarded earlier suggestions that some cases of leukaemia had been the result of trauma. Windeyer J. said:

“The most that could be urged against Dr. Haines’ evidence is that the cause of leukaemia is not, in a positive sense, known and that his view is thus unproven and not accepted by others: not that it can be scientifically established as false.”

However, a hypothesis cannot be reasonable if it is “contrary to proved scientific facts or to the known phenomena of nature”. Nor can it be reasonable if it is “obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”.

But leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable. As we have earlier pointed out, it is not the function of s. 120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its functions under s. 120(3) the Commission cannot have regard to the medical or scientific material which is opposed to the material which supports the veteran’s claim. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connexion between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion.

If the material does raise a reasonable hypothesis of a connexion between the service and the injury, disease or death, the claim must be dealt with in accordance with s. 120(1). That is to say, the Commission must determine that the injury, disease or death was war caused “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”. The use of the terms “the material” and “raise” strongly suggests that sub-s. (3) is not concerned with the proof or satisfaction of a claim but with whether there is some “material” which calls for a determination under s. 120(1). The phrase “[i]n applying subsection (1) or (2)” (emphasis added) in s. 120(3) also suggests that s. 120(1) is the governing provision.

The relationship between s. 120(1) and s. 120(3) is analogous to the raising of the common law “defence” of provocation in a trial for murder in respect of which it has been said:

“it is not the duty of the judge to invite the jury to speculate as to provocative incidents, of which there is no evidence and which cannot be reasonably inferred from the evidence. The duty of the jury to give the accused the benefit of the doubt is a duty which they should discharge having regard to the material before them, for it is on the evidence, and the evidence alone, that the prisoner is being tried.”

Likewise, it is the duty of the Commission under s. 120 to decide the claim on the material before it and, unless there is material which raises a reasonable hypothesis connecting the operational service with the incapacity or death, there is nothing upon which the Commission can find that the incapacity or death was war caused within the meaning of s. 120(1). But once the material raises such a hypothesis, the operation of s. 120(3) is spent and the case falls to be determined in accordance with s. 120(1). That is to say, the Commission must determine that the injury etc. was war caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making the determination.

The Commission will be satisfied beyond reasonable doubt “that there is no sufficient ground for making [the] determination” if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination. But unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed; we cannot conceive of a case where, for the purpose of s. 120(3), the hypothesis is reasonable having regard to the raised facts, yet the Commission could be satisfied, “beyond reasonable doubt, that there is no sufficient ground for making the determination” even though the raised facts are not disproved. Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with the operational service, it seems convenient simply to treat the case as governed by the application of s. 120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist.

(footnotes omitted)

Mr Iliopoulos placed considerable emphasis upon their Honours’ observation in this passage that it would be a rare case in which an hypothesis would be considered unreasonable when put forward by a medical practitioner who was eminent in the field. In Bushell Brennan J had expressed a similar view at 430 saying:

It would be an exceptional case in which it would be right for the A.A.T., forming its own view of competing medical theories, to hold an hypothesis of connexion favouring entitlement to be unreasonable, when the hypothesis is supported by “a responsible medical practitioner, speaking within the ambit of his expertise”.

In that context Mr Iliopoulos relied upon the expert evidence of Dr Burdon and the absence of contradicting expert evidence. The evidence of Associate Professor Holmes had not excluded the possibility of a connection.

9    The Tribunal was not bound to accept the evidence of Dr Burdon but it was bound to consider the evidence, including the evidence of Dr Burdon, for itself: see Bushell at 415; see also Levier v Repatriation Commission [1997] FCA 1365 at 19-20; and Repatriation Commission v Bey (1997) 79 FCR 364, 372-3. Brennan J had observed in Bushell at 430 that in considering the evidence for itself “the decision-maker [was] bound to have regard to its own want of scientific expertise in comparison with the expertise of a responsible medical practitioner who supports the reasonableness of an hypothesis favouring entitlements”. In this case the Tribunal considered the evidence of Dr Burdon but did not accept it as determinative. In Levier French J explained at 20 that the Tribunal’s own evaluation of the expert evidence did not usurp the role of the expert:

There can be no question in this context of the Tribunal “usurping” the role of the expert witness. It is ultimately the Tribunal which has the responsibility for determining whether there is a reasonable hypothesis on the facts raised. That is a matter of fact. While the nature of the test it has to apply has the logical consequence that an hypothesis proposed by an expert in the relevant field, will rarely be rejected as not a reasonable hypothesis the decision and responsibility is that of the Tribunal. To characterise its approach as a usurpation of the role of the expert witness is to reverse the respective functions of the expert witness and the Tribunal in these cases.

The opinion of Dr Burdon did not, of course, establish a causative connection between the injury and the service, but it was an opinion by an expert in the relevant field that the connection was causative for the reasons which Dr Burdon had given. The Entitlements Act, however, does not make an expert like Dr Burdon, however eminent, the decision-maker. It is at first instance the Commission, and subsequently the Tribunal, which is entrusted with the statutory power to make a legally operative decision. The Tribunal is obliged to consider the evidence bearing upon the decision it is called upon to make, but the expert, however eminent, is not the decision-maker.

10    The Tribunal correctly took into account the opinion of Dr Burdon that a causative connection between Mr Iliopoulos’ condition and operational service was a possibility, and correctly took into account Dr Burdon’s reasons for that opinion, but formed its own contrary conclusion for the reasons it gave. The Tribunal said at [83] to [84] and [89]:

83    In his second written report dated 8 September 2014, Dr Burdon focused on the SOP for asthma, and in particular its reference to RADS. He was of the opinion that RIIDS should be regarded as a low-level form of RADS which could follow low level exposures to irritants over a period of time with the symptoms occurring subsequently. He concluded:

Given that Mr. Iliopoulos was exposed to insecticides and defoliants such as Agent Orange and that these are toxic substances I would accept that such exposure was responsible.

84    While I accept that Dr Burdon is an expert in his field, which is the respiratory system, I did not have evidence that he was a medical practitioner who was eminent in that field of knowledge. The Shorter Oxford English Dictionary defines eminent as: 2. Of persons a. Exalted in rank or station… b. Distinguished in character or attainments. Therefore, just because Dr Burdon expressed the opinion that Mr Iliopoulos’ exposure to insecticides was responsible for his irritant cough, that does not result in a finding that the hypothesis of connection must be reasonable. For example, Australian forces were based at Nui Dat between 1966 and 1972. Both herbicides and insecticides were used throughout that period on and around the perimeter of the base. Thousands of soldiers and airmen spent time at the base and were exposed to those chemicals. However, other than Mr Iliopoulos, not one further example of a person experiencing chronic irritant cough syndrome after being stationed at Nui Dat was presented to me. Logically, if exposure to the insecticides or herbicides used at Nui Dat was capable of causing the problem now experienced by Mr Iliopoulos, it is reasonable to expect that there are others with the same problem.

[…]

89    Applying the logic expressed by Professor Pearce and the many case studies with which I am familiar where the cause and effect relationship was under close scrutiny, Mr Iliopoulos’ exposure to irritants while based at Nui Dat does not, by itself, point to a causal connection. At its highest, it does not rise above a mere possibility. In his written reports, Dr Burdon did not go further than to say that he was of the opinion that there was a possible connection. When asked in evidence-in-chief about how he had arrived at his diagnosis, Dr Burdon said that he questioned Mr Iliopoulos about what he had been exposed to while in South Vietnam and upon being told that he had been exposed to defoliants and insecticide, he said that was a possible cause of his coughing. Respectfully, that evidence by itself does not point to a causal connection. Accordingly, I find on the material which was before me on the hearing of this matter that the hypothesis of connection advanced by Mr Iliopoulos between his chronic irritant cough syndrome and exposure to irritants while based in South Vietnam is not reasonable. It does not point to a hypothesis that chronic irritable cough syndrome may be caused by exposure to insecticides, or for that matter, herbicides. The association made by Dr Burdon is too remote or too tenuous.

(emphasis in original)

The Tribunal’s consideration in [84] of the difference between an expert in a field and a person who is eminent in that field can be put to one side for the moment because, as counsel for the Commission correctly submitted, the Tribunal’s decision was not based upon a rejection of Dr Burdon’s evidence on the basis that he was not eminent in the relevant field of knowledge. The Tribunal’s decision was, rather, as was submitted for the Commission, that “whether or not Dr Burdon was regarded as eminent or expert, the Tribunal considered his evidence and formed the view that the connection that he identified” was an opinion of a possible causative connection. The Tribunal’s reasons at [83], [84] and [89] show that the Tribunal formed its own conclusion about the connection and gave its reasons for that view including, relevantly, its explanation for not adopting the opinion of Dr Burdon as its own. The Tribunal might have erred if it had rejected the expert evidence of Dr Burdon on the basis that Bushell had imposed a higher requirement for an expert to be eminent, but the Tribunal did not do so. The Tribunal would have erred if it had considered itself bound by an opinion of an expert “eminent” in the field without itself reaching its own decision on all relevant material. It may be that the Tribunal’s use of the word “therefore” in the second sentence in [84] suggests that the Tribunal might incorrectly have thought that it would have been bound to adopt the evidence of an eminent medical practitioner in the relevant field, but what matters for present purposes is that the Tribunal accepted the expert evidence of Dr Burdon and undertook the task that it was by statute required to undertake; namely, to decide for itself whether the material before the Tribunal raised a reasonable hypothesis of connection between the injury in question and the particular service rendered by Mr Iliopoulos. The opinion of the Tribunal was that the material before it, including the expert opinion of Dr Burdon, did not raise a reasonable hypothesis of connection.

11    The relevance of the Tribunal’s reference to the “eminence” of Dr Burdon was raised in a number of questions of law said to be raised in the amended notice of appeal and in the grounds in support of them. In addition to questions 1 and 8 (quoted above), question 5(a) asked:

5.    Did the Tribunal fail to accord procedural fairness to the Applicant in:

a.    Failing to inform the Applicant of its doubts about Dr Burdon’s eminence in the field of respiratory science?

[…]

It may for present purposes be assumed that the Tribunal was in error in suggesting that the evidence of Dr Burdon as an expert was insufficient to treat him as eminent in his field of expertise in the sense contemplated by the passage in Bushell at 414-415 quoted above. Their Honours in that passage in Bushell were not distinguishing “eminent” medical practitioners from “expert” medical practitioners. Indeed, in that regard, it is instructive to note that the passage from Levier quoted above, which is to the same effect as that in Bushell, refers to an hypothesis proposed by an “expert in the relevant field” (and not that of an “eminent” medical practitioner) as rarely to be rejected as not a reasonable hypothesis. However, it is not an accurate reading of the Tribunal’s decision that it failed to apply Bushell in relation to its treatment of the expert evidence of Dr Burdon on the basis that he was not eminent. The Tribunal, rather, accepted the evidence of Dr Burdon as that of an expert in the relevant field and took it into account in forming its own conclusion of the matter in issue as it was required to do. The Tribunal’s view about the eminence of Dr Burdon did not result in the Tribunal failing to take it into account. The Tribunal understood the evidence of Dr Burdon as an opinion of the possibility that the connection between condition and service was causative (as can be seen by [83]) but rejected that evidence as determinative of the issue it was required to decide. It did so in part for the reasons at [84] and in part for the reasons in [89].

12    There was, therefore, no misconstruction of the kind posed by question 1 in the amended notice of appeal nor any of the errors posed by questions 8, 5(a) or 9. The evidence of an expert in the relevant field of medical science was considered by the Tribunal. Such evidence would not, of itself, be sufficient to determine whether a reasonable hypothesis connected Mr Iliopoulos’ condition with his operational service. That was a question which the Tribunal was required to determine for itself and it did so. Similarly, there was no denial of procedural fairness because whether Dr Burdon should be regarded as eminent was not material to the Tribunal’s ultimate finding at [89] and, in any event, procedural fairness required that the parties be aware of the central issues in the case and the parties were aware of those issues in this case. The parties were well aware of the decision in Bushell, and the issues raised by application of that decision were engaged before the Tribunal in the question it was called upon to decide, namely, whether the Tribunal was itself satisfied of the relevant connection to the relevant standard. The case before the Tribunal had included the evidence of Dr Burdon for the Tribunal to decide the inquiry it was called upon to undertake. In relation to question 9 it might be added that there was sufficient evidence upon which the Tribunal was able to base its decision and that its reasons did not require more than a statement of its findings and the basis upon which it reached them: see Comcare v Forbutt [2000] FCA 837 at [50]-[52]. The reasons of the Tribunal disclose its findings of fact, the evidence on which they were based and the logical process by which it moved from those findings to the result in the case: see Secretary, Department of Employment and Workplace Relations v Homewood (2006) 91 ALD 103 at [40].

13    A number of the other questions raised in the amended notice of appeal, and the grounds connected with them, challenged the decision on the basis that the Tribunal had erred by relying on the lack of epidemiological evidence, or had relied upon the lack of evidence of other service personnel having developed chronic irritable cough syndrome after exposure to pesticides or herbicides in Vietnam. Questions 2, 3, 4 and 5(b) are:

[…]

2.    Did the Tribunal misconstrue s 120 of the [Entitlements Act] by determining that a hypothesis based on the raised facts and put forward by an expert in the relevant field of medical science was not a reasonable hypothesis, without epidemiological evidence or evidence of other personnel being similarly affected by Chronic Irritable Cough Syndrome following exposure to irritants and toxic chemicals during service in Vietnam?

3    Did the Tribunal misconstrue the phrase “reasonable hypothesis” in s120 (3) of the [Entitlements Act] by conflating the requirements of s 120(1) with the requirements of s 120(3), and failing to construe the phrase by reference to its historical and legal context, in particular the cases of Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 56 and Repatriation Commission v Webb (1998) 51 ALD 575?

4.    Did the Tribunal impose an impermissible onus of proof on the Applicant to prove the hypothesis of connection between the conditions of Chronic Irritable Cough Syndrome and Neurodermatitis and his operational service in Vietnam contrary to s120 (6) of the [Entitlements Act]?

5.    Did the Tribunal fail to accord procedural fairness to the Applicant in:

[…]

b.    Failing to inform the Applicant of its doubts about the absence of medical evidence connecting his chronic cough syndrome to his exposure to insecticides during his service in Vietnam?

[…]

The submissions for Mr Iliopoulos, and the questions and grounds raised in the amended notice of appeal, do not accurately state the Tribunal’s reasoning concerning the evidence. The Tribunal was not saying that there needed to be an epidemiological study, or evidence of other veterans suffering the same condition, to find that an hypothesis of connection was reasonable. It was, rather, explaining why it was not satisfied to adopt for itself the opinion and reasons given by Dr Burdon. The opinion of Dr Burdon was of the possibility of a causative connection between the condition of Mr Iliopoulos and his service. The Tribunal was required to evaluate that evidence for itself and in doing so expressed its reasons for not reaching the same conclusion as the opinion given by Dr Burdon. The Tribunal’s reference to the absence of other evidence was not imposing an evidentiary burden upon Mr Iliopoulos, or saying that such evidence was required, but was an explanation in its reasons why other evidence might have required a different conclusion.

14    The Tribunal did, however, have other expert evidence before it which, although not contradicting the evidence of Dr Burdon, related to the Tribunal reaching a different conclusion. Professor Holmes had provided two reports concerning the reasonableness of an hypothesis connecting Mr Iliopoulos’ condition to his war service in Vietnam. The first report was dated 10 July 2014 and did not support the view that there was a reasonable hypothesis connecting Mr Iliopoulos’ condition to his war service in Vietnam. Professor Holmes noted in his report:

One problem that arises from the notes is that Mr Iliopoulos’s cough developed on his return to Australia so we don’t have any premonitory event documented in Vietnam that suggests the cough arose as a direct result of the chemicals he encountered during his war service.

In a subsequent report dated 8 May 2015 Professor Holmes concluded by saying that he was “unable to provide a link between [Mr Iliopoulos’] current symptoms and his time in Vietnam”. The Tribunal was not, as was suggested by question 2 in the amended notice of appeal, construing s 120 of the Entitlements Act as requiring that there be epidemiological evidence or evidence of other personnel being similarly affected to determine the reasonableness of an hypothesis. Nor did the Tribunal misconstrue the phrase “reasonable hypothesis” in s 120(3) by conflating the requirements of subsection 120(1) with those in subsection 120(3) or by failing to construe the phrase by reference to its historical and legal context. The Tribunal was, rather, taking into account all of the material available to it as the decision in Bushell had made clear at 415 that the decision-maker was permitted and “bound to have regard to the opposing material for the purpose of examining the validity of the reasoning” supporting the claim of a connection between the condition and the service of a veteran.

15    Question 4 was expressly directed to whether the Tribunal impermissibly imposed an onus of proof upon Mr Iliopoulos to prove the hypothesis of connection. Section 120(6) provides that nothing in the section shall be taken to impose on, amongst others, a claimant such as Mr Iliopoulos, any onus of proving any matter that is, or might be, relevant to the determination of the claim or application. Section 120(6) provides:

(6)    Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

(a)    a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

(b)    the Commonwealth, the Department or any other person in relation to such a claim or application;

any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.

It was submitted for Mr Iliopoulos that the Tribunal’s reasons revealed that it had imposed an impermissible onus of proof on him to prove the hypothesis of connection between the conditions of chronic irritable cough syndrome and neurodermatitis and his operational service in Vietnam contrary to s 120(6) of the Entitlements Act.

16    Mr Iliopoulos relied upon Summers v Repatriation Commission (2015) 230 FCR 179 and Patterson v Repatriation Commission (2006) 90 ALD 650 in support of the submission that the Tribunal had imposed upon Mr Iliopoulos an impermissible onus. In Summers the Full Court considered that the language which had been used by the Tribunal in its reasons in that case revealed that the Tribunal had failed to discharge its task of determining “whether there was material pointing to or raising” that the applicant in that case had continued his excessive drinking despite knowledge of it doing him harm. At [153] the Full Court said:

The primary judge considered (at [64]) that the Tribunal’s finding that there was “no persuasive material” was nothing more than its explanation of how it assessed the material before it, reflecting the practical situation which arose. We respectfully disagree. We consider that the Tribunal again used the language of fact finding. Its task at that stage of the Deledio process was not to weigh the evidence and decide whether it was persuaded on the evidence, but rather to decide whether there was material pointing to or raising that Mr Summers continued his excessive drinking despite knowledge of it doing him harm. We accept the possibility that Mr Summers undertook the alcohol reduction course after 10 December 2007 and it is therefore not to be taken into account. However, putting that unknown to one side, the Tribunal’s finding is indicative of it misunderstanding its task.

In Patterson the Court noted at [38] that the Tribunal had relied upon a “lack of dietary intake data” in finding that the hypothesis in that case was not reasonable. In Patterson the applicant had argued that stress during his service had led to the onset of his alcoholism and subsequently his war-caused obesity.

17    The decisions in Summers and Patterson do not have ready application to claims, like the present, which come under the provisions of the regime introduced by the 1994 amendments. The regime introduced by the 1994 amendments applied to Summers and Patterson and the decision in those cases, unlike the present, were governed by Statements of Principles. The significance of the difference between the two regimes was explained at first instance in Deledio v Repatriation Commission (1997) 47 ALD 261 at 274-5 where Heerey J said:

The concept of “sound medical-scientific evidence” introduced by the 1994 amendments is a standard not unlike the Frye test. In this respect at least, the Parliament has accepted the Baume Committee’s criticism of “doctor shopping”. If an SoP applies to the particular kind of injury, disease or death in question, a hypothesis will no longer satisfy the test of reasonableness merely by having some expert evidence to support the medical-scientific aspects of the hypothesis. To illustrate by a variation on the facts of the present case, let it be assumed that it could only be established that the veteran increased his animal fat consumption by 20% 50 gm/day for 10 years. Dr X, an appropriately qualified specialist, is called to say that in his opinion that level of consumption could be sufficient to cause malignant neoplasm of the prostate. The commission calls three of the country’s leading specialists who vehemently disagree. They say that an increase by at least 40% to at least 70 gm/day for at least 20 years is the minimum required before fat intake can play any part in the development of this cancer. Under Bushell, the hypothesis is nevertheless reasonable. Under the SoP regime it is not. Indeed the issue would probably not arise. Unless the hypothesis was consistent with a 40% 70 gm/day 20 year intake there would be no point running the case.

But 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.

In both Summers and Patterson there was a relevant Statement of Principles against which the Tribunal was required to consider the reasonableness of the hypothesis. On appeal the Full Court in Summers, and Heerey J in Patterson, found that the Tribunal had erred in its functions by evaluating the evidence and had impermissibly engaged in fact finding in the context of an enquiry governed by the regime where Statement of Principles applied: see Summers at [127], [135]-[136], [141] and [153]; Patterson at [38]-[41].

18    The present appeal by Mr Iliopoulos, in contrast with those considered in Summers and Patterson, required the Tribunal itself to consider whether the service connection to the chronic irritable cough syndrome was reasonable. Unlike the circumstances in Summers and Patterson, the Tribunal did not err by evaluating for itself the evidence but was, rather, required to do so. In doing so the Tribunal correctly identified that it was not required to be satisfied that a connection between the operational service of Mr Iliopoulos and his chronic irritable cough syndrome was proved but to form its own opinion on the materials before it. At [85] to [86] the Tribunal said:

85    I of course accept that a hypothesis may be regarded as reasonable even where an association between the claimed disease and operational service cannot be demonstrated. The connection need not be proved. It would be a very different matter if there were epidemiological studies which pointed to a connection. Epidemiological studies are not, by themselves, directed to the circumstances of an individual case. Spigelman CJ in Seltsam Pty Limited v McGuiness (2000) 49 NSWLR 262 explained the value of such studies. His Honour said, at 274 – 275:

79    Evidence of possibility, including expert evidence of possibility expressed in opinion form and evidence of possibility from epidemiological research or other statistical indicators, is admissible and must be weighed in the balance with other factors, when determining whether or not, on the balance of probabilities, an inference of causation in a specific case could or should be drawn. Where, however, the whole of the evidence does not rise above the level of possibility, either alone or cumulatively, such an inference is not open to be drawn.

86    I am mindful of the fact that in determining whether Mr Iliopoulos has raised a reasonable hypothesis connecting his chronic irritant cough syndrome with exposure to herbicides or insecticides, I am not to determine that to be the case on the balance of probabilities. I am required to determine whether the hypothesis is contrary to proven scientific facts or to the known phenomena of nature; and that it is not obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. Therefore, if I had before me evidence of epidemiological studies which disclosed a statistically significant connection between exposure and disease, I could reasonably draw an inference of connection and hence find that the hypothesis was reasonable. I did not have before me in evidence any such studies.

In considering the reasonableness of the hypothesis in question, however, the Tribunal was bound to have regard to all of the material for the purpose of examining the validity of the reasoning which supported the claim that there was a connection between the condition and Mr Iliopoulos’ service: Bushell at 415. The Tribunal’s reference to the absence of other evidence, such as epidemiological studies, which might support the reasonableness of the hypothesis, as mentioned above, identified material which might, in the circumstances of the case, have led to a different conclusion on the question of the reasonableness of the hypothesis of connection if there had been such evidence. It did not impermissibly impose an onus on Mr Iliopoulos or involve impermissible fact finding.

19    Two parts of question 5 have been dealt with above but it may be desirable to consider the remaining issue in the context posed by the question as a whole. Question 5 was:

5.    Did the Tribunal fail to accord procedural fairness to the Applicant in:

a.    Failing to inform the Applicant of its doubts about Dr Burdon’s eminence in the field of respiratory science?

b.    Failing to inform the Applicant of its doubts about the absence of medical evidence connecting his chronic cough syndrome to his exposure to insecticides during his service in Vietnam?

c.    Failing to inform the Applicant that it proposed to utilize a Statement of Principles for Neurodermatitis when the parties had agreed that the condition of Neurodermatitis was not subject to a statement of Principles?

It was submitted on behalf of Mr Iliopoulos that the Tribunal had failed to accord him procedural fairness by the Tribunal having failed to raise doubts which the Tribunal had in connection with its “findings” concerning Dr Burdon’s evidence, the lack of medical evidence connecting Mr Iliopoulos’ chronic cough with exposure to insecticides, and the Tribunal’s use of the Statement of Principles for irritant contact dermatitis.

20    In Waco v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 the Full Court said at [42] that the Refugee Review Tribunal had “a duty to raise clearly with the appellant the critical issues on which his or her application might depend”. The same may be said to apply to the Tribunal in this proceeding, although it was not bound to inform Mr Iliopoulos of matters which had already been put in issue (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at [48]) or to disclose its mental processes or proposed conclusions (see Ansett Transport Industries Ltd v Minister for Aviation & Ors (1987) 72 ALR 469, 499; Bond & Ors v Australian Broadcasting Tribunal (No 2) (1988) 84 ALR 646, 664-5).

21    The Tribunal did not, however, fail in its duty to raise with Mr Iliopoulos the critical issues on which the Tribunal’s decision depended. Mr Iliopoulos was aware of the central issues in the proceeding, and in particular of the application of the decision in Bushell to his circumstances. The obligation of the Tribunal to reach its own conclusion about the reasonableness of the relevant hypothesis was known to Mr Iliopoulos from the same passage at 415 in Bushell on which he relied, in which the majority had observed that it would be a rare case where it could be said that an hypothesis was unreasonable when it was put forward by a medical practitioner who was eminent in the relevant field of knowledge. However, as previously mentioned, the Tribunal’s observation that Dr Burdon was not eminent in his field of expertise was not the basis upon which the Tribunal decided the matter. The Tribunal, rather, took into account the evidence (as it was bound to do) but found against Mr Iliopoulos upon its own consideration of the material (as it was required by statute to consider for itself) in accordance with the observations in Bushell at 415. The Tribunal was under no obligation to inform Mr Iliopoulos “of its doubts about the absence” of medical evidence as suggested by question 5(b). The issue concerning the sufficiency of the evidence upon which Mr Iliopoulos relied was fully engaged in the proceeding, and Mr Iliopoulos had a full opportunity to present his case and he did so. He tendered in evidence two reports by Dr Burdon and adduced further oral evidence in chief from Dr Burdon. Mr Iliopoulos was represented at the hearing by a qualified legal practitioner who was aware that the Tribunal’s task included that of assessing the reasonableness of the hypothesis of connection which had been raised by the material presented to the Tribunal. The Tribunal was required to make its decision upon the material and submissions and not to inform Mr Iliopoulos that it intended to decide as it did before doing so.

22    The specific complaint raised by question 5(c) by Mr Iliopoulos of a failure to be informed by the Tribunal of its use of the Statement of Principles for Neurodermatitis concerns the passage at [92] in the Tribunal’s reasons leading to its conclusion at [95] that his hypothesis linking his skin rash with operational service in Vietnam was not reasonable. The Tribunal’s reasons at [91] to [95] stated:

91    In his second report dated 17 October 2014, Dr Berger referred to a diagnosis of ringworm infection of the skin. He said it was possible that this related to a condition Mr Iliopoulos may have had following his Vietnam service although it was unlikely. However, Dr Berger said that currently (October 2014), Mr Iliopoulos suffered from asteatosis or extreme dryness of the skin. His skin was therefore itchy and scratched by him, resulting in the development [of] small ulcers. Asteatosis is defined in Taber’s Cyclopedic Medical Dictionary, 17th edition, as: Any disease condition in which there is persistent scaling of the skin, suggesting scantiness or absence of sebaceous secretion. The Dictionary also suggests the following aetiology: Local form may be caused by frequent contact with irritants.

92    Although the above material is somewhat scant, I accept that it supports a hypothesis linking Mr Iliopoulos’ skin rash with his operational service in South Vietnam. Therefore, the next step is for me is to determine whether there is a SOP which deals with his condition. The Repatriation Medical Authority has determined a SOP concerning Irritant Contact Dermatitis (No. 110 of 2011). The SOP defines irritant contact dermatitis in the following way (cl. 3(b)):

irritant contact dermatitis means inflammation of an area of the skin resulting from direct contact with a chemical or biological agent. Irritants act by direct chemical or physical action on the skin, leading to disruption of the skin barrier, damage to epidermal cells and release of pro-inflammatory mediators, and induction of the innate immune system. This definition excludes allergic contact dermatitis, photocontact dermatitis, systemic contact dermatitis, urticaria and dermatitis due to exposure to extremes of weather, solar radiation (for example, solar skin damage) or other radiation or friction.

93    While I accept it is not clear from the definition and from Dr Berger’s diagnosis that Mr Iliopoulos has irritant contact dermatitis, the fact that Dr Berger has also described the condition as asteatosis, which may be caused by frequent contact with irritants, I should examine the possibility of its application.

94    Where there is a SOP dealing with the medical condition diagnosed, a hypothesis will be reasonable if it satisfies the template set out in the SOP. In other words, as is stated in clause 4 of the SOP, there is sound medical-scientific evidence indicating that irritant contact dermatitis can be related to relevant service provided that the factors set out in clause 6 are related to the service rendered by the veteran. The factors are:

(a)    having direct cutaneous exposure of the affected area to an irritant within the three days before the clinical onset of irritant contact dermatitis; or

(b)    having direct cutaneous exposure of the affected area to an irritant within the three days before the clinical worsening of irritant contact dermatitis; or

(c)    inability to obtain appropriate clinical management for irritant contact dermatitis.

95    The problem for Mr Iliopoulos is that even if the SOP is applicable to his condition, because the clinical onset according to him was in about 1974 or 1975, he cannot satisfy the necessary factors set out in the SOP. Accordingly, I would find that his hypothesis is not reasonable.

(emphasis in original)

The Tribunal went on in [96] to reach the same conclusion as that stated above on an alternative basis, namely, on the basis that the Statement of Principles to which the Tribunal had referred was not applicable. It did so because the Tribunal was of the view that there was no material upon which the reasonableness of the hypothesis was based.

23    The Tribunal did not err by considering the Statement of Principles for irritant contact dermatitis. The Statement of Principles had been referred to by the Veterans’ Review Board in its reasons for decision and formed part of the material before the Tribunal which had been filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth). The Statement of Principles was, therefore, part of the material on which the Tribunal was to decide the proceeding notwithstanding that the parties were in agreement that there was no Statement of Principles applicable to the injury in question. The duty of the Tribunal was to consider the claim on the material before it which, in this instance, included the Statement of Principles that the Tribunal went on to consider had not been satisfied as explained at [95]. The Tribunal, however, as mentioned above, went on to deal with the question at [96] upon the alternative basis as had been agreed between the parties, namely, that the Statement of Principles was not applicable to his condition.

24    The sixth question of law, and the sixth ground, in the amended grounds of appeal enquires whether the Tribunal erred in holding that it could not assume the fact of connection between service and a condition. Question 6 posed the following question:

Was the Tribunal wrong in law in holding that it could not assume the fact of connection between service and a condition, namely neurodermatitis and thereby qualifying the High Court decision in Byrnes v Repatriation Commission (1993) 177 CLR 564 by reference to Dunn v Repatriation Commission [2006] FCA 1703 (2006) 94 ALD 97?

The Tribunal said in its reasons that it could not assume the fact of connection when considering whether the hypothesis of connection was reasonable. It was submitted for Mr Iliopoulos that the Tribunal erred in doing so and that it ought to have assumed the fact of connection.

25    In Byrnes v Repatriation Commission (1993) 177 CLR 564 the High Court had held that an hypothesis may still be reasonable even if it assumes the occurrence or existence of a “fact”. The Tribunal referred to this passage but went on to observe at [77] that what had been said in Byrnes did not contemplate the assumption of “the fact of connection”. In doing so the Tribunal followed the observation by Nicholson J in Repatriation Commission v Dunn (2006) 94 ALD 97 when his Honour said at [46]:

It is necessary to return to the precise words of factor 5(c) of the SoP. The opening words state the factors which must as a minimum exist before it can be said a reasonable hypothesis has been raised connecting the malignant prostate with the circumstances of the person’s death. The three circumstances in (c) have been set out above. The third factor is the duration of the consumption for the 20-year period preceding clinical onset. Of all three factors, it was necessary in accordance with cl 4 of the SoP that they be related to relevant service. Step 3 in Deledio at FCR 97; ALD 205–6 makes this apparent when it states: “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”. That is, the hypothesis could not be raised as reasonable in accordance with the SoP unless there was some material pointing to the connection between the 20-year post-operational service consumption being connected with the relevant service. As was the case in Byrnes at CLR 569; ALR 213–14; ALD 5–6, the hypothesis is one of connection of the veteran’s condition with the circumstances of his service. If there is an assumed fact, it cannot be the fact to which the hypothesis must be addressed; that is, the fact of connection.

There is no error in the Tribunal adopting the passage from Dunn in its application of Byrnes. In Byrnes the court said at 569 to 570:

The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the Commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable. In Bushell, Mason C.J., Deane and McHugh JJ. said:

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

In some cases, the hypothesis may assume the occurrence or existence of a “fact”. That itself does not make the hypothesis unreasonable. So, in the present case, the appellant’s hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the Commission did not reveal the extent of the injury which he then suffered.

(emphasis in original; footnotes omitted)

Nothing in Byrnes suggests that the hypothesis may be determined by assuming the very fact which needs to be determined. Facts may be assumed in leading to a conclusion about the fact of connection but, as Nicholson J observed in Dunn at [46], the fact to which the hypothesis must be addressed is not a fact to be assumed; see also Repatriation Commission v Stares (1996) 41 ALD 212, 217-218. Section 120(3) of the Entitlements Act effectively deems the Commission to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that a veteran’s injury was a war-caused injury if, after considering the whole of the material before it, the Commission is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury with the circumstances of the veteran’s service. The deeming effected by the provision hinges on the formation of the necessary opinion by the decision-maker which must be reached after consideration of the whole of the material before it. Section 120 of the Entitlements Act requires the decision-maker to make a finding about connection and not to assume as a fact the finding which it must make.

26    Question 7 raises for consideration whether the Tribunal applied the wrong standard of proof in determining the date of clinical onset of the chronic irritable cough syndrome of Mr Iliopoulos. Question 7 asked:

Did the Tribunal apply the wrong standard of proof in determining on the balance of probabilities the date of clinical onset of the veteran’s chronic irritable cough syndrome rather than utilising the reasonable hypothesis standard in determining whether the material pointed to the date of onset that raised, together with other material, a reasonable hypothesis connecting the disease with service?

The grounds relied upon by Mr Iliopoulos in respect of this question was that the Tribunal applied the wrong standard of proof and that the Tribunal ought to have utilised the reasonable hypothesis standard in determining whether the material pointed to a date of onset that raised, together with other material, a reasonable hypothesis connecting the disease with service.

27    It is sufficient to dispose of this issue to note that it does not arise in the Tribunal’s finding that there was no hypothesis connecting the operational service by Mr Iliopoulos with his condition. The Tribunal, rather, accepted that there was an hypothesis connecting his service with the development of the chronic irritable cough syndrome. At [47] the Tribunal said:

Mr D De Marchi, who appeared on behalf of Mr Iliopoulos, submitted that the hypothesis connecting Mr Iliopoulos’ Chronic Irritable Cough Syndrome and his neurodermatitis/asteatosis with his operational service was his exposure to herbicides and insecticides while based at Nui Dat between May 1971 and October 1971. There was no issue about the fact that the material before me points to a hypothesis linking Mr Iliopoulos’ operational service with his claimed medical conditions.

At [63] the Tribunal concluded that it was reasonable to say from the material before the Tribunal that the matter raised an hypothesis connecting Mr Iliopoulos’ operational service with the conditions he claimed were caused by that service:

When questioned in the course of his oral evidence as to whether residual insecticides were irritants as well as being toxic, Dr Barton replied they were. For that reason, it is reasonable to say that the material before me in this matter raises a hypothesis connecting Mr Iliopoulos’ operational service with the conditions he claims were caused by that service. The question then becomes whether that hypothesis is reasonable.

The reason the claim failed was not because there was no hypothesis as contemplated by question 7, or as contemplated by the corresponding ground in the amended notice of appeal and submissions, but because of the Tribunal’s conclusion that the hypothesis was not reasonable (as it had indicated at [63] that it needed to determine).

28    Question 10 enquires whether the Tribunal misconstrued the expression “reasonable hypothesis” in s 120(3) of the Entitlements Act, when read with s 9(1)(e), by failing to determine whether the material pointed to an hypothesis that Mr Iliopoulos’ chronic irritable cough syndrome was aggravated by his exposure to irritants during his operational service. Question 10 is expressed as a question of construction of a statutory provision but, as is clear from the submissions, the complaint was that the Tribunal ought to have considered an alternative hypothesis of connection between his condition and his service that had not been advanced. The written submissions for Mr Iliopoulos submitted:

Question 10 asks whether the Tribunal misconstrued the expression “reasonable hypothesis” in failing to ascertain whether or not the material pointed to the veteran’s chronic irritable cough being aggravated by his war-service. If it is indeed the case that the Tribunal erred in finding that the clinical onset of the veteran’s condition should not be determined on the balance of probabilities in 1974-1975, it follows that the Tribunal should also have considered whether there was material pointing a hypothesis that the clinical onset of the Applicant’s cough occurred in or prior to Vietnam. In this regard the mere fact that the Applicant noticed the cough in 1974-1975 is not dispositive. He had earlier complained of a dry cough and sought medical advice in relation to same shortly after he returned to Australia in 1971: see at [36]. He had also complained of a dry cough prior to service: see at [34]. There was therefore material pointing to two hypotheses. The first hypothesis is that clinical onset of the Applicant’s dry cough occurred at or about 1970 and was aggravated by his service in Vietnam. The second hypothesis is that the clinical onset of the Applicant's dry cough occurred during service in Vietnam and was aggravated by his service in Vietnam and/or caused by his service in Vietnam.

The Tribunal would have committed an error of law if it had failed to consider a submission of substance that was capable of affecting the outcome of a case if accepted: see Australian Postal Corporation v Sellick & Anor (2008) 245 ALR 561 at [89]. The Tribunal, however, was not obliged to deal with every argument raised or with every possibility that could be averted to. In Comcare v Forbutt [2000] FCA 837 Heerey J said at [58]:

However the Tribunal was not obliged to deal with every argument raised and every possibility that could be adverted to: Dornan v Riordan (1990) 24 FCR 564 at 567. It is not the duty of a judge to decide every matter which is raised in argument: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386. It will ordinarily be sufficient if a judge “apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted”: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273 per Mahony JA. The obligation in this regard on a judge is higher than that on an administrative decision-maker: Soulemezis at 261 per Kirby P, Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666-667 per Gibbs CJ.

The issue before the Tribunal had been whether the war service of Mr Iliopoulos in Vietnam had caused his condition, not whether it had aggravated a condition he already had about which there was evidence before the Tribunal to cause it to make an enquiry into that hypothesis. However, there was no material before the Tribunal in this case capable of supporting the alternative hypothesis of aggravation. Mr Iliopoulos had not contended that he had a persistent cough before his return to Australia from Vietnam, and the only evidence of him having had a cough before his war service was an entry in a medical Attendance and Treatment Card made whilst he was undertaking recruit training in 1970. That record stated “also dry cough 3/7”. In evidence Mr Iliopoulos stated that he did not know the basis of the cough but thought that it had simply been a cold. Furthermore, the oral evidence of Dr Burdon had been that it could be expected that “if someone has got a condition which is causing the current coughing that they wouldn’t have long periods of time where they were free from symptoms”.

29    Accordingly, each of the questions raised in the amended notice of appeal are to be answered in the negative and the appeal will be dismissed.

Associate:

Dated:    28 June 2016