FEDERAL COURT OF AUSTRALIA

Wall v Repatriation Commission [2019] FCA 1838

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs of and incidental to the application, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3.    Within seven days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the costs referred to above.

4.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the respondent’s costs as referred to above be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    The applicant, Mr Wall, appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) in respect of a decision of the Tribunal made on 7 June 2018. By that decision the Tribunal affirmed the decision of the Repatriation Commission, which was to refuse the applicant’s application for an increase in his disability pension because it was satisfied that two conditions identified by the applicant were not war-caused.

2    At [4] of its reasons, the Tribunal concisely summarised the key factual background to the applicant’s claim:

Mr Wall is a 70 year-old veteran who served with the Royal Australian Navy (RAN) for approximately eight years from 1964 until 1972. During an 11-day period of operational service between 25 January and 5 February 1968, Mr Wall was serving on HMAS Stuart, while she escorted HMAS Sydney to and from Vung Tau, South Vietnam. HMAS Stuart was anchored in Vung Tau Harbour for approximately eight hours on 3 February 1968 while helicopters unloaded stores from HMAS Sydney. Crew members did not go ashore. Mr Wall contends that during this 11-day period of operational service, the primary optic atrophy in his left eye was caused by local environmental factors or infection. In the alternative, Mr Wall contends he did not receive appropriate medical treatment for this condition.

(Footnotes omitted.)

3    The applicant initially raised two questions of law under s 44.

4    There was an issue whether the second question of law was pressed. Counsel for the applicant maintained at the hearing that it was pressed, but there was no independent argument advanced about it, nor any authority referred to. Accordingly, I consider it briefly at [74]-[75] below, but pressing a ground only briefly set out in written submissions and that counsel is not prepared to develop in oral argument is not a course that should be encouraged. It places the Court in a difficult position in terms of how to consider such arguments.

5    In the course of submissions ahead of the hearing, a third question of law and ground of appeal was sought to be added, as well as another limb under the first question of law and ground of appeal. The respondent did not object and leave was granted to the applicant to rely on an amended notice of appeal containing three questions of law.

6    For the reasons set out below, I am not persuaded any of the questions of law, and grounds of appeal supporting them, identify an error justifying setting aside the Tribunal’s decision.

The Tribunal’s reasons for decision

7    At a general level, the following points can be made:

(a)    the applicant did not challenge or criticise the Tribunal’s summary of the applicable legal principles, which the Tribunal set out at [5]-[18] of its reasons; and

(b)    the applicant did not challenge or criticise the Tribunal’s identification of the issue arising on the review at [19] of its reasons as:

The issues for determination are whether the claimed conditions of primary optic atrophy - left and major depressive disorder, arose out of or are attributable to any eligible war service, and if so, whether Mr Wall is entitled to an increase in his disability pension.

8    The structure of the Tribunal’s reasons was as follows. After setting out what is accepted to be an accurate summary of the applicant’s claims, it then set out the applicable legislative provisions and the authorities which provide guidance on what is on any view a complex decision-making scheme about whether a person’s death or injury was “war -caused”.

9    In particular, the Tribunal noted at [18], by reference to the decision of Allsop J (as his Honour then was) in Cameron v Repatriation Commission [2003] FCA 1323; 77 ALD 81, the “fine line” which exists in the task of deciding whether all of the material “points to” a reasonable hypothesis connecting either factors in an applicable Statement of Principles (SoP), or factors arising in all of the material if there is no applicable SoP, with the circumstances of a person’s service. That “fine line” refers to the distinction (on the authorities, and which is not disputed) between a decision-maker concluding a reasonable hypothesis exists by weighing all the material before it, and a decision-maker taking the “impermissible” step, at this stage, of engaging in fact-finding.

10    The Tribunal then set out (at [20]-[77]) the evidence before it. Given the nature of the three questions of law, it is important to emphasise at this point that in my opinion, the Tribunal’s reasons are properly described as “detailed” in terms of their description of the evidence before it, whether lay, documentary or expert (medical). At [78]-[93], the Tribunal set out what it called its “deliberations”, and it is in this section that its reasoning on the review is primarily located. However, under the heading “Conclusion” and especially at [95]-[96], the Tribunal also made some findings which are important to its ultimate conclusion to affirm the decision under review.

11    In the “deliberations” section of its reasons, after noting at [88] that at the reasonable hypothesis stage no question of fact-finding arises, the Tribunal then set out (at [89]) a list of aspects of the evidence which it described as containing “plentiful speculation” about the cause of the applicant’s left optic atrophy. As the Tribunal noted at [80], it was common ground between the parties before the Tribunal that if the left optic atrophy was found to be war-caused, the applicant’s depressive disorder should also be accepted as war-caused, because the depressive disorder was said to have arisen as a consequence of his left optic atrophy.

12    Having set out extracts from the evidence, the Tribunal concluded at [90]-[92]:

The material points to a possible onset of optic atrophy in Mr Wall’s left eye in January 1969, approximately a year after the brief period of operational service he relies upon. By 5 June 1970, impairment of conduction in the lower half of Mr Wall’s left optic nerve had been diagnosed and surgery performed soon after to explore what was suspected to be a cancerous cause. The surgery revealed existing atrophy of Mr Wall’s left optic nerve, but not a cause for it. In relation to cause, the material before me points in many possible directions. What it doesn’t do, however, is raise facts that point to a connexion between Mr Wall’s left optic atrophy and that 11-day period of operational service on HMAS Stuart some 50 years ago.

The material also does not point to other than appropriate clinical responses and management following Mr Wall’s presentation with eye problems in January 1969. The submissions advanced in the ASFIC that Mr Wall suffered atrophy of his left optic nerve ‘following the craniotomy,’ and that his ‘optic nerve was damaged in the surgery,’ is inconsistent with the surgical findings in 1970. Professor Bradley found the left optic nerve was already diminished when he observed it during surgery. Moreover, these submissions are inconsistent with counsel for the Applicant’s contention at the hearing that onset of left optic atrophy had occurred during operational service, some two-and-a-half years before Mr Wall’s surgery. The evidence before me points to an initial indication of problems with Mr Wall’s left eye during Dr Hardy-Smith’s examination in early May 1970, when he noted that the ‘left pupil reaction was less sustained than the right.’ Within a month, specialist Dr Robertson had diagnosed a problem affecting the left optic nerve and surgical investigation followed soon after.

Similarly, Associate Professor White’s evidence that a deterioration in Mr Wall’s eyesight after surgery in 1970 may have been a vascular event caused by manipulation of the optic nerve, or disruption of the blood supply, or perhaps due to the blood supply being compromised as a result of lower blood pressure under anaesthetic, rises no higher than speculation almost 50 years after the event. There is no doubt that the eyesight in Mr Wall’s left eye deteriorated after surgery, but the extent to which that may have resulted from or been contributed to by the surgery, or results from the unknown process that caused atrophy of his left optic nerve in the first place, is not able to be determined on the material before me. No submissions were made during the hearing regarding sub-optimal medical responses or treatment. Ms Spencer noted in her closing submissions that ‘no-one is suggesting anyone did anything wrong in the operation.’ Moreover, Associate Professor White’s evidence is that the anosmia suffered by Mr Wall during his surgery was commonplace, describing it as ‘a known risk’ that ‘no surgeon can say they’ve never had that complication.’ I am therefore satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Wall’s left optic atrophy arose as a consequence of receiving medical treatment that could be regarded as deficient.

(Original emphasis and footnote omitted.)

13    On this basis, the Tribunal concluded (at [93]) that no reasonable hypothesis was raised connecting the applicant’s left optic atrophy with his operational service (being the 11-day period in early 1968). This conclusion meant the Tribunal did not go on to consider any of what it described as the “subsequent Deledio steps” (being a reference to Repatriation Commission v Deledio [1998] FCA 391; 83 FCR 82), or whether the applicant’s depressive disorder was war-caused.

14    In its conclusion at [95]-[96], having recognised the impact of the medical conditions on the applicant, his family and his military career, and his nevertheless distinguished and successful career outside the Navy (at [94]), the Tribunal added the following substantive reasoning to what it had already said:

Counsel for the Applicant submitted that Associate Professor White’s evidence supported the proposed hypothesis. But as held in Bey, my task is not to determine the existence of a hypothesis, but a reasonable hypothesis. Force must be given to the word ‘reasonable,’ which requires ‘more than a mere possibility.’ The evidence before me points to many possible causes for the atrophy in Mr Wall’s left optic nerve. Associate Professor White has used an exclusionary methodology to identify two possible causes he considers more probable than those rejected. He also connects onset of optic atrophy to a specific 11-day period of operational service some 50 years ago, purely on the basis of Mr Wall’s claim that this is when he first noticed a rapid deterioration in his vision. At the hearing, however, Associate Professor White agreed that if onset of left optic atrophy occurred at the time of Mr Wall’s operational service, he would have expected to ‘see the optic atrophy certainly by 6 months.’ The evidence before me shows that Mr Wall’s left optic atrophy was diagnosed in mid-1970, approximately 28 months after his operational service.

The proposed hypothesis is too tenuous and is therefore not reasonable. I am satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Wall’s left optic atrophy, or the depressive disorder he says arose from it, was war caused.

(Original emphasis.)

15    It is apparent these passages were directed towards the reasonableness of the asserted hypothesis.

The questions of law and grounds of appeal

16    In the amended notice of appeal, the first question of law is expressed as follows:

In concluding that no reasonable hypothesis had been raised connecting the applicant’s left optic atrophy with his operational service, did the Tribunal misconceive its task and/or err in the application of s 120(3) of the Veterans Entitlements Act 198[6] (Cth) (VE Act) in that the Tribunal:

a)    failed to consider the whole of the material before it; and/or

b)    engaged in fact finding or the rejection of material before it; and/or

c)    failed to:

i.    identify the raised facts and having identified the raised facts,

ii.    determine whether the hypothesis was reasonable assuming the raised facts to be true.

17    The second question of law is expressed as follows:

Whether the Tribunal complied with its statutory duty under s 43(2) and (2B) of the AAT Act.

18    The third question of law (a new question as at the time of the hearing) is stated as:

Whether, the Tribunal misconceived its task and/or failed to correctly apply ss 120(1) and (3) of the VE Act in that, taking into account all of the material before the Tribunal, it was not open to find that there was no material calling for determination under s 120(1).

19    The grounds of appeal are expressed in the same terms as the questions of law, and therefore take the development of the argument no further. However, the applicant’s arguments, at least on the first question of law on which the principal emphasis was placed, were clearly developed in the written submissions, and during the hearing.

The applicant’s argument in summary

20    As to the first question of law, counsel for the applicant identified the contended misconception by the Tribunal of its task and/or error in the application of s 120(3) of the Veterans’ Entitlements Act 1986 (Cth) (VE Act) in at least two different ways.

21    First, counsel submitted the Tribunal did not perform its task to examine all of the material to see whether there was a reasonable hypothesis raised by any facts contained in that material. Instead, she contended:

… we submit that [the tribunal’s task] was to look at the whole of the material before it, in order to identify the raised facts, and that is the material before it pointing to some fact or facts that supported the hypothesis. And what we submit is striking about the tribunal’s reasons is that the tribunal identifies no raised facts in the sense described in Bushell and Byrnes; it identifies no material before it as raising facts giving rise to the hypothesis.

And what instead the tribunal appears to have done is that, rather than looking at the material to identify any facts giving rise to the hypothesis, it appears to have embarked on a process of identifying in the material all the material that it considered pointed away from the hypothesis, including material that it considered pointed to a clinical onset of optic atrophy other than during the operational service, and to there being other possible causes to the actual cause, and to the actual cause of the optic atrophy being unknown. And we submit, that was not the tribunal’s task.

We submit further that, whether by reason of embarking on its task in that way, or by reason of its failure to have regard to the whole of the material before it as required by subsection (3), the tribunal failed to recognise and properly deal with the material before it that raised the hypothesis.

22    Second, she submitted that:

… the tribunal crossed the boundary from factual assessment into impermissible weighing and evaluation in arriving at its decision, by reference to the reasons of the tribunal and how it arrived at its conclusion.

23    This contention was made in particular in relation to the way the Tribunal dealt with the evidence of Associate Professor White, but extended to other aspects of the Tribunal’s findings.

24    I have noted that no separate submissions were made in support of the second question of law.

25    As to the (new) third question, counsel did not develop any separate arguments about this question, but rather (as I understood it) concentrated on the third question expressing, in a different way, the error made by the Tribunal in respect of its approach to s 120(3) and whether the whole of the material raised a reasonable hypothesis connecting the applicant’s left optic atrophy with the circumstances of his 11-day operational service in Vietnam.

The respondent’s response

26    At the hearing, the respondent correctly identified that the focus of the applicant’s submissions was on the first question of law, and the two ways in which it was put that the Tribunal had misconceived its task and/or erred in the application of s 120(3) of the VE Act.

27    In response, the respondent accepted that where there was no SoP, the Act required a two-step process (as identified in Byrnes v Repatriation Commission [1993] HCA 51; 177 CLR 564): first, whether the material as a whole raises some fact or facts which support the hypothesis put forward by the veteran; and second, if so, whether the hypothesis is a reasonable one when all of the evidence and information, including the medical and scientific evidence, is considered.

28    The first point at which the respondent’s submissions parted with the applicant’s was the question of whether the second step has a factual aspect beyond the medical or scientific evidence, or whether the Tribunal is only required to assess the medical or scientific evidence at this stage. The respondent contended the Tribunal is not so limited, and can at this stage also examine any “factual” evidence – including that of the veteran herself or himself. The respondent relied on my decision in Forrester v Repatriation Commission [2013] FCA 898 at [31]-[32].

29    The respondent further submitted that where there was conflicting material, pointing both towards and against a hypothesis being raised, the task of assessing that material is one for the Tribunal; including the possibility that the Tribunal is able to characterise the whole of the material as “too remote” or “too tenuous” to point to a reasonable hypothesis. The respondent submitted this was the Tribunal’s conclusion in the present case, at [96] of its reasons.

30    The respondent further contended that it is insufficient for the Tribunal to single out some material (such as a veteran’s own evidence) and conclude that that material “points to” a reasonable hypothesis, with its reasonableness only to be examined by reference to medical or scientific opinion. The respondent contended that to describe the task in that way would be to permit the Tribunal to look at only some of the material, rather than the whole of it.

31    As to the applicant’s contention that the Tribunal descended into fact-finding, crossing the “fine line” to which the Tribunal referred in its reasons (by reference to Allsop J’s decision in Cameron), the respondent submitted the Tribunal did not do so. The respondent pointed to the Tribunal’s language in the parts of its reasons criticised by the applicant, and submitted the language did not indicate impermissible fact-finding. The respondent contended that all the Tribunal did was to indicate what the evidence suggested.

Resolution

32    In broad terms, I accept the respondent’s submissions on the application.

Applicable principles

33    I have set out my understanding of the applicable principles in my reasons in Forrester at [6]-[19], and [25]-[32]. It is also necessary to set out two further passages from my reasons in Forrester. At [48]-[49], I said:

I reject the applicant’s submission in her first argument that the Tribunal was “bound to find” that the material supported the hypothesis advanced. Such a proposition relies on a much more difficult question of law to that involved in her second argument (see [51] below). To succeed on her first argument, the applicant must confront the limits inherent in any attack on fact finding, as they are described in Vetter v Lake Macquarie City Council (2001) 202 CLR 439. Where a tribunal is applying a statutory expression (here, s 120(3), as construed in Deledio) to the evidence or material before it, there will be no error of law in the conclusion or determination reached if it is reasonably possible to arrive at different conclusions or determinations: see Vetter 202 CLR 439 at 451 per Gleeson CJ, Gummow and Callinan JJ and the authorities there referred to. An error of law (and therefore a question of law about the orders and decision made by the Tribunal) will arise if on the facts only one conclusion was open. This in turn requires characterisations at the level of perversity, irrationality or illogicality to be applied to the Tribunal’s reasoning and factual conclusion.

Whether the whole of the material before the Tribunal “pointed to” or “supported” the hypothesis contended for – especially the asserted link between the five particular events and an increase in Mr Forrester’s drinking – was a factual question on which it was reasonably possible to reach different conclusions, given the nature of the material before the Tribunal. Subject to any misunderstanding of the applicable legal principles (which in my view is what is raised, in substance, in the applicant’s second argument), the conclusion reached by the Tribunal was one of several reasonably open to it on the material before it.

34    And at [60]-[63], in relation to when a hypothesis might be found to be “too tenuous” or “too remote”, and the fact-finding exercise involved in this assessment:

The terms “too tenuous” or “remote” are orthodox terms to use in this context: see East 16 FCR 517 at 532; Bushell 175 CLR 408 at 414; Byrnes 177 CLR 564 at 570. In my opinion, these terms are not synonymous with irrationality, but rather suggest a different problem with a causal link between war service and the veteran’s death. The notion of “remoteness” is a key concept in causation analysis: see Cattanach v Melchior (2003) 215 CLR 1 at [179] per Kirby J.

Further, even if those descriptions could not be applied to the hypothesis put forward by Mrs Forrester, as the Full Court pointed out in Bull 66 ALD 271; [2001] FCA 1832 at [18], it does not necessarily follow that the asserted hypothesis is a reasonable one:

It is important to understand the following about East. The court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis …

There is nothing in the Full Court’s decision in Bull that assists the applicant’s argument. The Full Court (at [22], citing Bey 79 FCR 364 at 373 and Repatriation Commission v Owens (1996) 70 ALJR 904) made it clear a factual exercise was involved:

The formation of the opinion called for by s 120(3) involves an assessment of the factual material before it. It involves reaching an opinion about a factual matter. It is, in that sense, a question of fact ...

At [23] the Full Court in Bull also referred to a large number of authorities dealing with the proposition to which I have referred less fulsomely at [48] above. Again, minds may reasonably differ on whether a hypothesis is too remote or tenuous.

A general observation

35    It is worth recalling what was said by Hill J in Horne v Repatriation Commission [1996] FCA 1866; 24 AAR 127 at [21], concerning the function of this Court on an appeal under s 44 of the AAT Act:

When the matter comes on appeal to this Court, the Court’s powers are limited. The question whether the material before the Tribunal does raise an hypothesis will be a question of fact for the Tribunal to decide. The question whether that material is capable of raising an hypothesis would involve a question of law. The question whether the hypothesis is reasonable is one also for the Tribunal of fact. Indeed, it is one for the opinion of the Tribunal and the Court will not likely interfere with the Tribunal’s view. It would only be where the Tribunal in law in forming its opinion that the Court could overrule the opinion.

36    Counsel for the applicant presented very detailed submissions, including on the evidence before the Tribunal and what conclusions could be drawn from that evidence. However, there were many points in her submissions where the impression was given that she was attempting to persuade this Court about why there was a reasonable hypothesis raised on the material before the Tribunal. That, of course, is no part of this Court’s task: to undertake that task would be to stand in the shoes of the Tribunal.

37    Rather, the Court’s task is to consider the submissions in support of (and against) the three questions of law which, the applicant submits, indicate the Tribunal’s decision is affected by legal error, and to determine whether any of the identified legal errors have been made out. That is the extent of its task.

First and third questions of law: misconceived task and finding “not open”

38    These two questions, and grounds, can be considered together, as they go to the same point, but characterise the error in two different ways. As I have noted above, counsel for the applicant did not advance any different or further submissions on the third question of law, and appeared to address the third question as part of her submissions on the first question.

39    In oral submissions in reply, counsel for the applicant submitted there was no dispute that the applicable principles from the authorities say that if a hypothesis is “merely left open on the material”, or is a “mere possibility”, then that is insufficient and the test is not met. Rather, she submitted the Tribunal’s task was to look to the whole of the material:

… to identify within that material some material – and it only needs to be some – that raises facts – that raise the hypothesis.

40    In this submission lies the difficulty with the applicant’s argument. The proposition as put by counsel succinctly in reply was expressed in different ways throughout the argument, and with considerable detail attached, but it amounted to the same proposition. The applicant’s argument was that in order to perform its task, the Tribunal was required to, but did not, identify from within the whole of the material, a fact or facts which could be said to “point to” or “raise” a hypothesis. This asserted task of selection, from the whole of the material, of certain evidence and facts, as capable of pointing to or giving rise to a hypothesis, was critical to the way this argument was developed.

41    It is true, as counsel for the applicant contended, that there was evidence, being a sub-set of the whole of the evidence, that could be described as “pointing to” or “raising” the hypothesis for which the applicant contended: namely, that during his 11-day period of operational service, the optic atrophy in his left eye was caused by “a para-infectious immune response or a toxic episode triggered by a local organism or environmental agent”. There was the applicant’s own evidence about the onset of vision disturbance while he was on the ship during the 11-day period, there were some references in medical records which could be read as consistent with onset occurring at that time, and there were the expert opinions of Associate Professor White, and Dr Nave, although the applicant’s submissions focussed on Associate Professor White’s evidence. This evidence is set out at [18] of the applicant’s written submissions, where it is also explained how – as a matter of fact – this material is said to have supported the hypothesis advanced.

42    There was, however, as the respondent pointed out, no evidence at all about the occurrence or presence of any infection or toxic episode caused by a “local organism or environmental agent” during the applicant’s 11-day period of operational service: not even the applicant gave this kind of evidence.

43    The key point is that the evidence identified by the applicant at [18] of his written submissions on the appeal would need to have been considered by the Tribunal in isolation, discounting or putting to one side other evidence which might not be consistent with it, or which might point in other directions.

44    As the respondent submitted, this is not what s 120(3) requires. The authorities are clear that the Tribunal’s task is to consider whether, on the whole of the evidence, a reasonable hypothesis is raised connecting a veteran’s injury or disease with her or his operational service. I am satisfied that is what the Tribunal did in the applicant’s circumstances, albeit with an outcome with which the applicant disagrees.

45    At [87]-[88] of its reasons, the Tribunal stated:

I find there is no SoP in force for this condition or for the descriptive variations preferred by the specialists who gave evidence at the hearing, which they agree can be used interchangeably. I must therefore consider all of the material before me to determine whether it points to the hypothesis relied upon by Mr Wall, connecting his left optic atrophy with war service.

I acknowledge that no question of fact finding arises at this stage, but if no such hypothesis arises, the application must fail.

46    These passages are, with respect, correct. The Tribunal then went on to identify aspects of the evidence it considered pointed in different directions, and what some of the difficulties were with some of that evidence. An example on which there was considerable focus during argument was what was said by the Tribunal at [89(g) and (h)] where the Tribunal discussed:

(a)    On the one hand, Associate Professor White’s conclusion that:

… one of the possible causes he proposes had an onset coinciding with Mr Wall’s 11-day period of operational service some 50 years ago in 1968, was based entirely on Mr Wall’s contention that this was when he first noticed a deterioration in his vision. He had concluded on that basis alone, that this was ‘when the pathological process commenced.’

(b)    And on the other hand, Associate Professor White’s concession that:

… the cause of Mr Wall’s optic atrophy ‘remained obscure,’ and that we were ‘in the dark about the cause. Given that the diagnosis of a visual field defect in Mr Wall’s left eye was made approximately two-and-a-half years after Mr Wall’s operational service in 1968, Associate Professor White agreed during the hearing that left optic atrophy could have developed at some stage between 1969-1970 rather than in early 1968 at the time of his operational service.

(Original emphasis.)

47    Thus, the Tribunal certainly did not ignore the applicant’s evidence, or that of Associate Professor White. However, it evaluated it in the context of the whole of the evidence, which was its task.

48    Contrary to the applicant’s contentions, the Tribunal was not at this point in its reasons (or anywhere else) engaging in fact-finding in a way which crossed the line to which the Tribunal had earlier referred, by reference to Allsop J’s decision in Cameron. For example, at [90] of its reasons, a passage on which the respondent focused, and following on from the detailed list of evidence at [89] which the Tribunal noted contained “plentiful speculation”, the Tribunal stated:

The material points to a possible onset of optic atrophy in Mr Wall’s left eye in January 1969, approximately a year after the brief period of operational service he relies upon. By 5 June 1970, impairment of conduction in the lower half of Mr Wall’s left optic nerve had been diagnosed and surgery performed soon after to explore what was suspected to be a cancerous cause. The surgery revealed existing atrophy of Mr Wall’s left optic nerve, but not a cause for it. In relation to cause, the material before me points in many possible directions. What it doesn’t do, however, is raise facts that point to a connexion between Mr Wall’s left optic atrophy and that 11-day period of operational service on HMAS Stuart some 50 years ago.

(Emphasis added.)

49    While there are passages in the middle of this paragraph which could be read as if facts were being found, in the critical passages (at the start and finish of the paragraph), the Tribunal was clearly not making findings of fact, but was attentive to its task of determining whether the whole of the material “pointed to” the hypothesis for which the applicant contended. Read fairly and in context, there is no legal error disclosed by the way the Tribunal has expressed itself.

50    The applicant placed considerable reliance on the Full Court’s decision in Hardman v Repatriation Commission [2005] FCAFC 83 for the proposition that:

It is enough if the [asserted] hypothesis is available on certain of the facts before the decision-maker.

51    Hardman was an occasion where the Full Court explained that the terms of s 120(3) would generally have far less work to do, after the introduction of s 120A into the VE Act, and cautioned against too rigid an adherence to the “steps” in Deledio as a substitute for the terms of the legislation itself: see [32]. Those observations, with respect, can readily be accepted.

52    Here, however, there was the less usual situation of an injury or disease for which there was no SoP, and thus the reasonableness of the asserted hypothesis, if raised by all of the evidence, was a question of fact for the Tribunal. That meant that s 120(3) had a material role to play, and the applicant did not submit to the contrary.

53    The applicant relied on [26] of the Full Court’s reasoning in Hardman (with my emphasis added):

The primary judge was faced with a difficult decision. The critical portions of the Tribunal’s reasons are not crystal clear. In particular, the statement that the Tribunal found it difficult to see the raised facts as supporting depression as a disease assailing the appellant soon after the alleged stressor is capable of more than one construction. It may have been an indirect way of finding that the raised facts did not, in truth, support the hypothesis at all. If so, that would be an end to the matter. That judgment was a judgment of fact for the Tribunal to make. Disagreement by a court with that finding does not establish error of law. (Bull v Repatriation Commission (2001) 188 ALR 756 (Bull) at [22].) The Tribunal, on the other hand, may have been saying that the facts referred to were consistent with the hypothesis when considered in isolation but were overwhelmed by countervailing facts and matters and so not reasonable. The primary judge appears to have understood the Tribunal’s decision in the latter sense. It should be so read. That accords with the most natural reading of the Tribunal’s decision. If the Tribunal had intended to say that the facts relied upon by the appellant did not support the hypothesis at all, then it would have been expected to have said so. The Tribunal’s finding that the material to which it had referred ‘overwhelmingly suggests a clinical onset of depression no earlier than 1969’ also indicates that, in its opinion, the material pointed in two directions, although that pointing in one direction overwhelmed the other.

54    Thus, the Full Court identified there were two ways to read the Tribunal’s reasons in that case: one which led to no error, and one which led to error because it meant the Tribunal had engaged in a fact-finding exercise instead of confining itself to deciding if the evidence raised a reasonable hypothesis. In the course of identifying this as an error, the Full Court said at [28]:

The Tribunal had accepted the principle that the onset of depressive disorder should be assessed by identifying the point at which the appellant displayed symptoms that would have enabled a clinician to diagnose a depressive disorder. There was thus an hypothesis available on certain of the facts that the relevant symptoms were displayed after the return of the appellant to the vessel and well within the two year period required by the SoP. To reject that hypothesis on the basis that it was swamped by countervailing material is a finding which preferred some facts to others and so rejected those facts upon which the relevant hypothesis could be based. That is directly contrary to the three steps as described in Deledio.

55    In my opinion, the circumstances in Hardman are distinguishable from the present circumstances, for the following reasons:

(a)    The Full Court’s decision turned very much on its interpretation of the Tribunal’s reasons. That makes its finding specific to the case before it.

(b)    If the distinctions in [26] of the Full Court’s reasons are applied to the present Tribunal’s reasons, in my opinion, the present Tribunal’s reasons are very much in the first category rather than the second. The Tribunal found, as I have explained above, that the evidence (or the facts) did not raise the proposed hypothesis. It then also found (at [96] of its reasons) that in any event, the proposed hypothesis was too tenuous and therefore not reasonable.

(c)    In Hardman, as the Full Court’s reasons at [28] made clear, the Tribunal had as a matter of fact accepted the principle concerning the point in time at which the onset of depressive disorder should be assessed, based on the display of symptoms, and there was evidence which bore out that Mr Hardman had displayed those symptoms at a point in time which brought him within the period of time required by the SoP. It was in those circumstances that the Full Court found it was erroneous for the Tribunal to have rejected the asserted hypothesis. In other words, there could be no debate that by a combination of the expert and lay evidence the hypothesis was raised, and to reject it the Tribunal had to engage in fact-finding, preferring some facts to others. That was not the situation facing the Tribunal in the applicant’s case, and not what it did.

56    The “fine line” to be drawn in these matters means that making comparisons with other decisions, with different facts and differently expressed Tribunal reasons, is likely to be of little assistance.

57    Further, I do not accept the applicant’s criticism of the Tribunal’s reasons, made by pointing to a number of aspects of the evidence to which it did not expressly refer, or where what was in the Tribunal’s reasons was said to be incomplete or inaccurate, from the applicant’s perspective. This criticism was made, for example, of [68] of the Tribunal’s reasons:

Associate Professor White said that in light of the exclusionary process he had considered, the two possible causes he ‘can’t rule out’ were a ‘para infectious immune response or toxic episode of some sort.’ He said there were other possibilities, but considered these two ‘more probable.’ He said there was nothing in the material he had seen that changes his view in relation to these two possible causes. He said it was unlikely Mr Wall had significant myopia in January 1968 and explanations for why he says he could not facially-recognise shipmates on adjoining ships could have been that his ‘eyes were not lined up correctly’ or a ‘field defect.’ When asked to speculate on the most probable cause, Associate Professor White stated:

‘At this distance of time it is not possible to be absolutely conclusive, but it is something I would be concerned about.’

(Original emphasis.)

58    At [19] of the applicant’s submissions, it was contended:

There was thus material before the Tribunal that supported the hypothesis as to the onset of the applicant’s left optic nerve problem. The expert evidence in (i)-(v) above pointing to the applicant’s field defect as the likely cause of his vision problems in 1968 and 1969 is not referred to in the section of the Tribunal’s reasons entitled “Tribunal’s Deliberations”. The Tribunal’s summary of the evidence does not include a summary of the evidence in (i)-(v) apart from what appears to be a purported summary of A/Prof White’s evidence in (i)-(iii) at [68] of the reasons which does not fully or accurately record the evidence.

59    This example illustrates another difficulty with the applicant’s approach to this appeal. In setting out its reasons for decision, the Tribunal’s task was not to “record” all the evidence before it. Its task was to set out its findings of fact and the evidence on which they were based. Section 43(2B) of the AAT Act provides:

Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

60    I refer to my reasons for judgment in Mulligan v National Disability Insurance Agency [2015] FCA 544; 233 FCR 201, where I said at [63]-[65]:

The reasons of an administrative decision-maker, where given pursuant to a statutory obligation of the kind found in s 43(2) and (2B) of the AAT Act, enable a supervising court to see what the repository of the power herself or himself saw as relevant and irrelevant, and to see how the decision-maker conceived her or his statutory task: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10] per  Gleeson CJ .

In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, the Full Court said at [49]:

The court is entitled to take the reasons of the tribunal as setting out the findings of fact the tribunal itself considered material to its decision, and as reciting the evidence and other material which the tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225; [2001] HCA 30 at [10], [34] and [68] (Yusuf). Representing as it does what the tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a court on review to find jurisdictional error: see Yusuf  at [10], [44], [69].

Brevity may therefore not necessarily indicate or reveal legal error. However a reviewing court (including review by way of an appeal under s 44 of the AAT Act) is entitled to approach the reasons of an administrative decision-maker as wholly reflective of its reasoning process.

61    Unlike Mulligan, the Tribunal’s reasons in this case are not brief. They are fulsome, and refer to a great deal of the evidence and material before the Tribunal. The Tribunal’s reasons should be read as identifying the matters it saw as significant, and on which it based its decision. Provided the Tribunal understood its statutory task (which I consider it did) and applied the evidence before it to that task in a way which was open to it (which I consider it did), then the fact that it chose not to refer to certain evidence, or not to include certain evidence in its reasons is not, without more, indicative of any legal error, and certainly not a misconception of its task, which is the legal error here alleged.

62    What the applicant’s submission amounts to, is a submission that unless the Tribunal “recorded” what the applicant asserts should have been “recorded” in its reasons, in terms of the evidence, it could not be said to have been looking at the material as a whole. I do not accept such a proposition. That is especially so where the Tribunal’s reasons also spent some time recording the submissions advanced by counsel for the applicant, where those submissions specifically addressed some of the conflicts and “different directions” in the evidence before the Tribunal. These matters were fully canvassed before the Tribunal, and the Tribunal’s reasons demonstrate it was aware of how the applicant sought to have the Tribunal reconcile the evidence so as to meet the threshold in s 120(3).

63    There was some discussion during oral submissions about what kind of connection the Tribunal needed to be satisfied about, in terms of how the hypothesis connected the injury or disease with operational service. Counsel for the applicant referred to s 9(1)(a) of the VE Act, which provides:

(1)    Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a)    the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service[.]

64    She submitted this was the applicable provision, and that a temporal connection between the onset of an injury or disease, and operational service, was sufficient. The respondent did not dispute this issue on appeal, but rather submitted, by reference to a submission it had made before the Tribunal, that the Tribunal was entitled to accept, as it appeared to do at [81] of its reasons, the respondent’s submission that there was a material weakness in the evidence which precluded it pointing to a reasonable hypothesis:

In closing, Mr Rudge submitted there was a major problem with the hypothesis supported by Associate Professor White of two possible causes for Mr Wall’s left optic atrophy. He said there was no evidence in Mr Wall’s service records of an infection of the eye or exposure to a toxin – including during the 11-day period of operational service. Mr Rudge contended this was only ‘half a hypothesis,’ which did not causally-relate any infection or toxin exposure to that 11-day period of operational service.

(Original emphasis.)

65    The respondent made the following submission:

Implicit in the Tribunal’s opinion that the material before it pointed in multiple directions is an acknowledgment that there was conflicting evidence on the question of causation. The Tribunal did not find that there was no material pointing to the hypothesis advanced. Rather, the Tribunal correctly recognised that it had to be satisfied that the material raised a “reasonable hypothesis”, which required “more than a mere possibility”: TR [95]. The Tribunal’s ultimate conclusion, that the proposed hypothesis was “too tenuous and is therefore not reasonable” (TR [96]) was open to the Tribunal on the material before it and reflects a correct application of s 120(3).

66    I accept that submission. As I noted above, by reference to Forrester, reasonable minds may differ about the exact point at which an asserted hypothesis moves from being no more than a possibility, or being “too tenuous” or “too remote”, to being a hypothesis which the decision-maker is satisfied is “raised” on the whole of the material. The Tribunal’s analysis was careful, and detailed, and it took a particular view of the fact that significant aspects of the evidence pointed in different directions. In my opinion, the Tribunal also formed a view, which was open to it, that Associate Professor White’s reliance on the applicant’s own narrative was too tenuous a basis for his opinion. At [69] of its reasons, the Tribunal said:

When asked again to provide his best assessment, Associate Professor White said he ‘couldn’t differentiate between a para infectious immune-related optic neuropathy or a toxic optic neuropathy,’ and that one of these is ‘more likely than the other causes he had considered.’ He believe onset had occurred during the 11-day period of Mr Wall’s operational service from 25 January – 5 February 1968. When I asked Associate Professor White how he was able to localise the possible causes he advances with onset to a precise 11-day period some 50 years ago, he stated it was entirely based on Mr Wall’s claim regarding first noticing a rapid deterioration in his vision during this period of operational service. Associate Professor White explained that ‘we doctors have a different level of evidence to the courts’ and he had inferred from Mr Wall’s claim about a visual disturbance during this 11-day period that this was ‘when the pathological process commenced.’

(Original emphasis.)

67    This should be read with the Tribunal’s reasons about the applicant’s own evidence. It is not necessary to set the paragraphs out, but in my opinion it is clear from what the Tribunal said at [31]-[32], [35]-[38], [43]-[44], [77], and [83]-[84] of its reasons, all of which led to its conclusions at [89]-[93], that it did not see any reliable picture emerging from the applicant’s evidence, just as much as it saw no reliable picture emerging from the expert evidence. Contrary to the applicant’s contention at [25] of his written submissions, the Tribunal’s reasons do not disclose that it “discounted” the applicant’s evidence, or set it to one side because it was not corroborated. However, what the Tribunal did do, as it was required to, was to consider the applicant’s evidence (both the parts that might support the asserted hypothesis and the parts that might not) in the context of all the evidence. Hence its description at [89] of “plentiful speculation in the material”, a description which cannot be said to have been irrational or unreasonable, or otherwise not open to it.

68    The Tribunal’s approach is consistent with the task as described by Emmett and Allsop JJ in Bull v Repatriation Commission [2001] FCA 1832; 66 ALD 271 at [17]-[18]:

In East, after an examination of the early legislation and other legislative history, of the background to the amendments to the Repatriation Act in 1985, in particular the decision of the High Court in Repatriation Commission v O’Brien (1985) 155 CLR 422; 7 ALN N127; 58 ALR 119, of the surrounding parliamentary material to those 1985 amendments, of the drafting of the Act in 1986 and of the relationship between s 120 and that background, the court said the following (at FCR 532–3; ALD 403–4; ALR 533–4):

…The adoption of Brennan J’s notion of a reasonable hypothesis meant that parliament was requiring something by way of 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) 9 ALD 596 at 615:

“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 acceptability or credibility — it must not be obviously fanciful, impossible, incredible or not tenable or too remote 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 it would have been elevated to some higher status. Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable even though theoretical, and it may be theoretical in either or both of a [sic] least two senses: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case; or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable.”

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. [Emphasis added.]

It is important to understand the following about East. The court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis: see the emphasised paragraph in [17] above.

(Original emphasis.)

69    On the matter of the reasonableness of the asserted hypothesis, the Tribunal was not obliged to accept Associate Professor White’s opinion (which the applicant submitted was also accepted by Dr Nave in his oral evidence) that the asserted hypothesis was a reasonable one: see Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408 at 415 (Mason CJ, Deane and McHugh JJ). The applicant contended that because there was expert opinion to the effect that the asserted hypothesis was reasonable, it was not open to the Tribunal to conclude the hypothesis was not “raised” on the material, or that the material did not “point” to it.

70    The respondent submitted (at [24] of its written submissions):

It should not be inferred that the Tribunal rejected Associate Professor White’s evidence that one of the two causes of the Applicant’s optic atrophy that he thought “more likely” had an onset during the Applicant’s operational service in early 1968: cf AS [20]. The statement at TR [90] that the “material points to a possible onset of optic atrophy in Mr Wall’s left eye in January 1969” does not indicate that the Tribunal found that was the date of onset; it is clear from the Tribunal’s language that it merely found that was a possibility pointed to by the material. It was the existence of multiple possible causal explanations for the Applicant’s left optic atrophy that led the Tribunal to conclude that the material as a whole did not raise a reasonable hypothesis: TR [90] and [95]. That does not mean that the Tribunal discounted or rejected Associate Professor White’s evidence by preferring other evidence, simply that the Tribunal properly undertook the statutory task of determining whether a reasonable hypothesis was raised having regard to all of the material, including that which pointed in a different direction to the part of Associate Professor White’s evidence relied upon by the Applicant.

71    I accept that submission.

72    Further, in Levier v Repatriation Commission [1997] FCA 1365, French J (as his Honour then was) considered a similar argument, put in respect of the evidence of two expert medical practitioners, which the applicant in that case contended the Tribunal had rejected. At 19-20, his Honour said:

As was said in Bushell (supra) at 414-415 it must be a rare case where an hypothesis based on the raised facts is said to be unreasonable when put forward by a medical practitioner who is eminent in the relevant field of knowledge. As pointed out in the passage cited earlier in discussion of the general principles for the assessment of liability under the Veterans’ Entitlements Act conflict with other medical opinions is not sufficient to require rejection of an hypothesis as unreasonable. But as was also pointed out Bushell this does not preclude the Commission or the Tribunal from having regard to medical or scientific material opposed to that which supports the veteran’s claim when performing its functions under s 120(3).

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 than 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.

73    The difficulty here was that the Tribunal considered, on all of the material, that the way Associate Professor White’s expert opinion relied on the (bare) account of the applicant about his experience of a vision disturbance during his 11 days of operational service in Vietnam was too tenuous, and was not sufficient to point to a reasonable hypothesis. That was a judgment for the Tribunal to make.

Second question of law: inadequate reasons

74    As I have noted above, no submissions were advanced in writing or orally to support this question of law, and the alleged error, yet counsel expressly stated it was not abandoned.

75    There is no basis for the error identified by the second question. I have described the Tribunal’s reasons as fulsome, and that is in my opinion an accurate description. I have set out at [59]-[60] above, by reference to my reasons for judgment in Mulligan, what the Tribunal’s task was, in relation to setting out in writing its reasons for decision. The Tribunal’s reasons in this case amply fulfilled the Tribunal’s statutory obligation.

Conclusion

76    The application must be dismissed.

77    There is no basis for anything but the usual order as to costs, which is what the respondent seeks.

Associate:

Dated:    12 November 2019