Federal Court of Australia

Smith v Repatriation Commission [2025] FCA 1223

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed.

2.    The applicant is to pay the respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1    On 30 August 2024, Ian Leslie Smith appealed, pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) (now repealed) against a decision of the Administrative Appeals Tribunal (as it then was) (Tribunal) dated 5 August 2024: Smith v Repatriation Commission [2024] AATA 2724. The Tribunal affirmed a decision of the Veterans’ Review Board (VRB) dated 23 May 2022, which in turn had affirmed a decision of the Repatriation Commission dated 3 May 2021 that it was unable to accept Mr Smith’s claim for a disability pension under the Veterans’ Entitlements Act 1986 (Cth) (VE Act) in respect of Parkinson’s Disease. On 23 October 2024, Mr Smith filed a Supplementary Notice of Appeal.

2    The AAT Act was repealed on 14 October 2024 by sch 17 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (ART Transitional Act). By operation of Item 25 of Schedule 16 to the ART Transitional Act, it remains open to this court to hear applications for review of decisions of the Tribunal: Chaplin v Secretary, Dept of Social Services (2025) 187 ALD 1; [2025] FCAFC 89 at [12] (Thawley, Hespe and Kennett JJ); Commissioner of Taxation v Patrix Prestige Pty Ltd (2024) 306 FCR 56; [2024] FCAFC 148 at [2] (Thawley, Wheelahan and Kennett JJ); PYYV v Minister for Immigration and Multicultural Affairs [2025] FCA 1113 at [14] (Snaden J).

3    The ART Transitional Act also affected amendments to the VE Act, such that references to the AAT are substituted with references to the Administrative Review Tribunal.

relevant statutory provisions

4    Section 13(1) of the VE Act, contained in Part II, provides for the Commonwealth’s liability to pay pensions in accordance with the VE Act where a veteran is “incapacitated from a war-caused injury or war-caused disease”.

5    War-caused injury and war-caused disease are defined by s 9, by way of a number of alternative sub-sections. The Tribunal did not specify in its reasons which sub-section(s) it was relying on. The respondent’s submissions proceeded on the assumption that the relevant sub-section was s 9(1)(a), and this was not challenged by the applicant. Subsection 9(1)(a) provides that an injury or disease suffered by a veteran shall be taken to be war-caused “if the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service”.

6    There are two key requirements in s 9(1)(a). The first is that the service in question was “operational service”. It was accepted by the Tribunal, and it is not in dispute, that the applicant was rendering operational service whilst stationed on the HMAS Hobart in Vietnam from 2 January 1970 to 28 December 1970.

7    The second requirement is that a causal relationship must exist between the injury or disease and the service rendered by the veteran. The causal question posed by s 9(1)(a) – that is whether the applicant’s Parkinson’s Disease is causally connected to his operational service rendered aboard the HMAS Hobart in Vietnam – is to be answered having regard to s 120 of the VE Act, as affected by s 120A. Subsections 120(1) and (3) provide:

(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.

…

8    Section 120A, which applies to claims made on or after 1 June 1994, provides:

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

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

(b)    a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

9    The Repatriation Medical Authority has determined a Statement of Principles in respect of Parkinson’s Disease: Statement of Principles Number 55 of 2016 in respect of Parkinson’s Disease and Secondary Parkinsonism (SoP 55/2016).

legal principles

10    A Full Court of the Federal Court (Beaumont, Hill and O’Connor JJ) in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98 described how s 120 of the VE Act, as affected by s 120A, is to be applied. The Full Court identified four steps:

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

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

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

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

11    As Black CJ, Weinberg and Selway JJ said in Woodward v Repatriation Commission (2003) 131 FCR 473; [2003] FCAFC 160 at [55] “[i]t should be noted that the observation made in the second paragraph that if no SoP is in force the application must fail, needs to be qualified by reference to s 120A(4), which provides that s 120A(3) does not apply in certain circumstances.” That is not an issue in this appeal.

supplementary notice of appeal

12    The applicant contends that Parkinson’s Disease suffered by him was caused from an occurrence that happened while the applicant was rendering operational service.

13    Section 44(1) of the AAT Act provides for an appeal to the Federal Court of Australia on a question of law. The Supplementary Notice of Appeal identifies the following eight questions of law:

(1)    Whether the Administrative Review Tribunal's use of the balance of probability standard of proof, instead of the use of a reasonable hypothesis, and its non­compliance with legislative requirements and established legal authorities, constituted an error of law?

(2)    Did the Tribunal err in law by conflating the examination of a reasonable hypothesis of connection to service with the examination, application and determination of the relevant Statement of Principles for Parkinson’s Disease?

(3)    Has the Tribunal erred in law in its application of sections 120 (1) and (3) of the VE Act with the relevant Statement of Principles in determining whether the Applicant had provided a reasonable hypothesis linking the claimed Parkinson's Disease and his operational service or his eligible war service?

(4)    Did the Tribunal err in law in its application of sections 120(1) and 120(3) with the Deledio's methodology in light of finding of facts concerning the cause of the Parkinson's Disease and the applicant's smoking habit?

(5)    Did the Tribunal err in law its application of sections 120(1), 120(3), 120(6) and 120A of the Act concerning the disputed facts raised by the Applicant?

(6)    Did the Tribunal err in law in application of the decisions in Bushell v Repatriation Commission (1992) 175 CLR 408 ('Bushell') and Byrnes v Repatriation Commission (1993) 177 CLR 564 ('Byrnes') in determining the existence of a reasonable hypothesis connecting the Applicant's Parkinson's Disease with the circumstances of the veteran's war service?

(7)    Did the Tribunal err in law in the Application of section 119 of the Act to the facts of the case?

(8)    Did the Tribunal give adequate and sufficient reasons as it was obliged to under section 43(28) of the AAT Act for its determination that the Applicant's Parkinson’s Disease was not war-caused or service related?

14    On the face of the Supplementary Notice of Appeal, questions of law one to seven lack clarity and overlap significantly. The applicant’s submissions, both written and oral, compounded this lack of clarity. The submissions were often repetitious and difficult to follow. The respondent’s submissions, both orally and in writing, were often conclusionary, and the lack of analysis made it difficult for the Court to understand the asserted bases for the respondent’s position.

The tribunal’s reasons

15    The Tribunal’s Reasons were given on 5 August 2024: Smith v Repatriation Commission [2024] AATA 2724 (Reasons). The Tribunal found the applicant’s claim was not made out on the basis that there was no sufficient ground for determining that the applicant’s Parkinson’s Disease is a war-caused disease.

The disease

16    The Tribunal, at Reasons [20]-[31], confirmed that the applicant’s disability pension claim is in respect of Parkinson’s Disease, which the applicant first experienced symptoms of in about 2011. The Tribunal considered the relevant medical evidence and determined that the applicant had clinically significant symptoms of Parkinson’s Disease at the earliest in 2011, and by no later than 2013.

The hypothesis – Deledio Step 1

17    At Reasons [32] to [72], the Tribunal addressed what is often referred to as the Deledio Step 1 under the heading “Does the material point to a hypothesis connecting the disease with Mr Smith’s operational service?”. The Tribunal set out the hypothesis of connection relied upon by the applicant at Reasons [35]. A key element of the hypothesis posited that the applicant formed a regular smoking habit in or about March 1970 which was causally related to the circumstances of his operational service. At Reasons [37], the Tribunal noted the causal element of the hypothesis lacked supporting material, and also that there was “a conflict in the evidence about Mr Smith’s smoking history”. The Tribunal observed that “proof of facts” does not arise at Deledio Step 1, and that it was required to “consider all the material and, without engaging in weighing evidence in order to find facts, determine if the hypothesis is ‘fairly raised’ by the material”: Reasons [54] and [55].

18    The Tribunal, having considered all of the material before it, concluded at Reasons [71], that it was:

[N]ot persuaded that the material points to or raises the hypothesis for which Mr Smith contends. While there is some material pointing to elements of the hypothesis, albeit attended by inconsistencies, the materials are not sufficient to raise important elements of the hypothesis.

The Statement of Principles – Deledio Step 2

19    At Reasons [73], the Tribunal addressed Deledio Step 2 under the heading “Is an applicable Statement of Principles (SoP) in force?”, identifying SoP 55/2016 as the relevant Statement of Principles (SoP).

Does the SoP uphold the hypothesis? – Deledio Step 3

20    At Reasons [74] to [92], the Tribunal addressed Deledio Step 3, under the heading “Does the template of the SoP uphold the hypothesis?”. Section 9 of the SoP sets out the factors, one of which must, as a minimum, exist before a reasonable hypothesis can be raised connecting Parkinson’s Disease to a person’s relevant service. The Tribunal commenced its consideration of whether the template of the SoP upheld the hypothesis by noting that the applicant relied upon the factor in s 9(1)(h) of the SoP: Reasons [75] and [76]. Section 9(1)(h) reads, “in a person with a history of a regular smoking habit as specified, having not smoked for at least the five years before the clinical onset of Parkinson's disease.”

21    At Reasons [79], the Tribunal noted that for the applicant’s hypothesis of connection to be a “reasonable hypothesis”, by reference to the SoP, and without finding facts, the material must point to the applicant having a history of a “regular smoking habit” – defined in the SoP as smoking at least three pack-years of cigarettes – which is connected with the circumstances of his operational service. The material must also point to him ceasing smoking at least five years before the clinical onset of his Parkinson’s Disease.

22    At Reasons [80], the Tribunal noted that even if the applicant’s hypothesis were to be raised on the whole of the evidence before the Tribunal (and the Tribunal had found it did not), it is on the first limb of the factor in s 9(1)(h) of the SoP, the connection with his operational service, that the Tribunal found the applicant's case fails. The reference to the ‘first limb’ is a reference to the chapeau to s 9 of the SoP, which reiterates the casual requirement in s 13(1) of the VE Act.

23    At Reasons [81], the Tribunal found that there is very scant material which goes to the causal connection between the applicant’s alleged smoking habit and the circumstances of his operational service. The Tribunal referred to a number of hypothetical possibilities which were touched upon by the applicant’s case, being that the applicant:

(a)    started smoking because he was stressed when undertaking night-watch duties;

(b)    was bored, cigarettes were widely and cheaply available and most people on HMAS Hobart smoked; and

(c)    was subjected to peer pressure to smoke and there was a smoking culture prevalent on HMAS Hobart at the time.

24    At Reasons [82], the Tribunal said that of the above possibilities, the proposition that the applicant was stressed when undertaking night watch duties appears in the Statement of Facts, Issues and Contentions that the applicant’s lay advocate provided for the purposes of the Tribunal proceedings, but was not pointed to by any of the material in evidence before the Tribunal. The proposition that the applicant was subjected to peer pressure and that there was a prevalent culture of smoking arose from the applicant’s lay advocate’s oral submissions, but again there was no evidence before the Tribunal in support of the proposition. Therefore, the Tribunal found at Reasons [82] that whilst these possibilities might be open, “the material before the Tribunal does not point to either of them.”

25    At Reasons [83], the Tribunal found that the applicant’s oral evidence, at the highest, is that during the period of his operational service he was often bored as the work was mundane, cigarettes were readily and cheaply accessible and most people smoked. The Tribunal found that this material pointed to the context in which the applicant commenced smoking. The Tribunal noted to raise the hypothesis of connection, it is not enough for the material to point to the context in which the applicant is alleged to have commenced smoking without pointing to the contributory cause of this event. The Tribunal put the question as “whether there is material pointing to the circumstances the applicant has identified on HMAS Hobart causally contributing to him consuming tobacco and developing a regular smoking habit”. The Tribunal went on to say “[w]ithout material pointing to or raising a causal connection between the circumstances the applicant identified onboard HMAS Hobart and his alleged smoking habit, the hypothesis lacks supporting material”.

26    At Reasons [84]-[85], the Tribunal referred to the applicant’s oral evidence, which it said pointed “to him experiencing boredom and playing cards or tombola or watching movies to pass the time and taking up smoking”, and stated the “co-existence of these assumed facts does not imply a causal connection”.

27    At Reasons [85], the Tribunal concluded that the causal link was “left open” but not pointed to by the material before it. The Tribunal observed that the “causal link cannot be met by speculation” and “speculating about naked possibilities without supporting material, albeit not tested or proved, is insufficient.”

28    At Reasons [89], the Tribunal observed “…when the whole of the material is considered, the hypothesis is at best tenuous, and the key causal element is left open and it is not sufficiently or fairly raised by the material”.

29    At Reasons [91] and [93], the Tribunal was satisfied that there was no sufficient ground for determining that the applicant’s Parkinson’s Disease is a war-caused disease and concluded that the applicant’s claim was not made out.

the questions of law

Question of Law 1

30    The applicant submits that a fair reading of the Tribunal’s Reasons reveals that the Tribunal erred in its application of Deledio Step 1. The applicant seems to submit that the Tribunal erred in two respects. First, that the Tribunal engaged in fact finding by casting doubt on material put forward by the applicant and rejecting it as not plausible at the stage of evaluating whether the material was present and if so, was capable of pointing to the hypothesis of connection to the operational service rendered by the applicant (that is under Deledio Step 1, rather than Deledio Step 4) (Question 1A). Second, that when the Tribunal engaged in its fact-finding process, it applied a balance of probabilities test, when it was required to ask itself whether it was satisfied beyond reasonable doubt that the disease is not war-caused (Question 1B).

31    In respect of Question 1A, the applicant submits that material supporting his hypothesis is to be found in the following evidence given by the applicant:

(a)    smoking was allowed on board in “most areas except when refuelling or around the engine room” and that there was “no problem with smoking on deck”: Transcript Appeal Book (AB) 418, lines 26-31;

(b)    the applicant was asked the reason for smoking by his advocate. The applicant answered: “cruising up and down the gun line was sort of fairly mundane sort of work and you’d start up smoking just because everybody else smoked or pretty much everybody else”: Transcript Appeal Book (AB) 419, lines 21-24;

(c)    the applicant confirmed the statement given by Geoffrey Harris as to the applicant’s smoking as a fair, accurate and truthful statement: Transcript AB 420, line 11. In this statement, Mr Harris puts forward that:

(i)    before the applicant joined the Royal Australian Navy Mr Harris did not recall the applicant smoking;

(ii)    Mr Harris observed the applicant smoking for the first time after he returned from serving in Vietnam, and considered his smoking was related to his service because “[in] the services smoking was an accepted practice, and Navy personnel were able to get cigarettes very cheaply on board”;

(iii)    after the applicant was discharged from the Navy in 1972, Mr Harris believed him to still be a regular smoker; and

(iv)    Mr Harris’ recollection is that the applicant stopped smoking in 1976 or 1977; and

(d)    a direct answer was also given to the senior member’s question of when he was smoking 20 cigarettes a day: “[p]robably during the Hobart deployment but exactly when I don’t know”: Transcript AB 425, lines 30-31.

32    The applicant also submits that the Tribunal itself also raised a reasonable linking factor such as “[i]t is conceivable, for example, Mr Smith might have experienced stress conducting night watches during periods of shore bombardment which caused him to take up smoking”: Reasons at [84]. The applicant submits that the Tribunal failed to take into account that an aspect of the applicant’s submitted hypothesis was that night watches had been stressful: Reasons at [35].

33    The respondent submits that the Tribunal did not engage in fact-finding, but, consistently with Deledio Step 1, found that the material as a whole did not sufficiently raise the important elements of the hypothesis. The respondent’s submissions on this point relied on Elliott v Repatriation Commission (2002) 73 ALD 377; [2002] FCA 26 at [5]. However, the respondent’s submissions did not engage with or analyse the Reasons, and did not expand on the applicability of Elliot to the Tribunal’s decision.

34    Stone J says in Elliot at [5]:

The “whole of the material” may include material put forward by the applicant or by the commission itself. The commission must consider this material to determine if it raises an hypothesis connecting the veteran's condition with the relevant service and if any such hypothesis is reasonable: Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569–70; 30 ALD 1 at 5; 116 ALR 210 at 214. As was emphasised in Deledio at FCR 98; ALD 217, there is no question of fact finding at this stage. Indeed, at this point the tribunal is entitled to make assumptions about the existence of facts: Repatriation Commission v Stares (1996) 66 FCR 594 at 600–1; 41 ALD 212. The decision whether the material enables the formation of a reasonable hypothesis must be made to the “reasonable satisfaction” of the commission: s 120(4) of the Act. If, having considered the whole of the material, the commission decides to its reasonable satisfaction that there is no such hypothesis then the application must fail: Deledio, points 1–3 at FCR 97; ALD 206.

35    Whilst this supports the contention that the standard applied as to whether there is a reasonable hypothesis is “reasonable satisfaction” and not “beyond reasonable doubt”, it does not aid the respondent in its submission that the Tribunal did not impermissibly engage in fact finding at this stage (that is at Deledio Step 1, rather than Deledio Step 4). In that regard, Stone J said in Elliot at [25]:

In attempting to determine if the material before the commission raises an hypothesis connecting the veteran's condition with the particular service, and if any such hypothesis is reasonable, the tribunal was required to consider and analyse that material. This exercise is not concerned with the truth of the assertions in the material and should not be confused with an exercise in fact finding. The task is similar to scrutinising a pleading to determine if the elements of the alleged cause of action have been pleaded. A statement of claim may be struck out as failing to disclose a cause of action without any consideration of whether the facts pleaded can be substantiated. A hypothesis can be dismissed as not reasonable if the material before the commission does not raise the essential elements of the hypothesis.

36    The respondent also relied on Collins v Administrative Appeals Tribunal (2007) 163 FCR 35; [2007] FCAFC 111 at [48] for the proposition that the Tribunal considers the material as a whole, and forms an opinion as to whether it is reasonably satisfied that a reasonable hypothesis is raised. Again, whilst this supports the standard of proof at this stage, it does not aid the respondent in its submission that the Tribunal did not in fact, impermissibly engage in fact finding. Lindgren, Emmett and Allsop JJ said in Collins at [49]:

As has been shown in a number of cases concerning ss 120(3) and 120A, the dividing line between impermissible fact finding and required assessment of all the material in the formation of an opinion as to whether a hypothesis is reasonable in connecting the injury, disease or death with the circumstances of service and as to whether a relevant SoP upholds the hypothesis is not necessarily easy to discern. 

Consideration

37    The Tribunal, at Reasons [32]-[72] addressed what is referred to as Deledio Step 1 under the heading “Does the material point to a hypothesis connecting the disease with Mr Smith’s operational service?”. At Deledio Step 1, the Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the applicant’s Parkinson’s Disease with the circumstances of his particular operational service. No question of fact-finding arises at Deledio Step 1.

38    The Reasons, in considering whether a hypothesis of connection has been raised, traverses matters in a manner which looks as if the Tribunal is weighing the evidence but, in fact, properly considered, the Tribunal does not make any findings of fact. Further, properly considered, the Tribunal’s decision focuses on the lack of evidence, on all of the material, which supports any causal connection between the applicant’s smoking and his service. The Tribunal makes clear that the evidence only goes to a temporal connection between the applicant’s smoking and his operational service, which is insufficient to raise a reasonable hypothesis of connection.

39    The Tribunal made the following findings when undertaking its analysis at Deledio Step 1:

(a)    At Reasons [36], the Tribunal found “there is scant material, including evidence given by Mr Smith, to support elements of his hypothesis”.

(b)    At Reasons [37], the Tribunal found in respect of the applicant’s hypothesis, that it lacked supporting material and that the hypothesis was posited despite a conflict in the evidence about Mr Smith’s smoking history.

(c)    At Reasons [38], the Tribunal identified documentary evidence over a period of years of Mr Smith stating he never smoked, and on the other hand, Mr Smith gave and adduced evidence which supports the thesis, noting that there is no contemporaneous evidence, one way or the other.

(d)    At Reasons [39]-[51], the Tribunal referred to conflicting evidence regarding Mr Smith’s smoking and at Reasons [52] stated “unfortunately, Mr Smith became distressed and confused, and he was unable to complete his evidence. He was not cross-examined. Consequently, inconsistencies and other controversial aspects of his evidence, such as it was, have not been tested or clarified”.

(e)    At Reasons [53], the Tribunal states that the applicant’s “account in 2023 is not plausible when it is considered against all the material which points to him never smoking. Furthermore, the Commission raises questions about the reliability of Mr Smith’s untested evidence and argues it should not be accepted.”

(f)    At Reasons [54], the Tribunal states that it must consider all the material, without engaging in weighing evidence in order to find facts and determine if the hypothesis is “fairly raised” by the material, albeit the facts on which it is raised are not yet proved.

40    As Elliot and Collins make clear, the Tribunal cannot set aside material, including for reasons of inconsistency, before asking itself whether the hypothesis of connection is raised. Further, the authorities are clear that for a reasonable hypothesis to be “raised” by the material before the decision-maker, 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: East v Repatriation Commission (1987) 16 FCR 517 at 532-533 (Jenkinson, Neaves and Wilcox JJ); affirmed in Bushell v Repatriation Commission (1992) 175 CLR 408 at 427-288 (Brennan J). In Bushell at 414, Mason CJ, Deane and McHugh JJ also said, 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”. Gordon J stated in Ellis v Repatriation Commission (2014) 142 ALD 352; [2014] FCA 847 at [15], that “whether material points to or supports a hypothesis is a matter which can be determined by inference or assumption” citing Elliot at [5]; Forrester v Repatriation Commission [2013] FCA 898 at [30] (Mortimer J).

41    An examination of the task undertaken by the Tribunal as revealed by its Reasons, demonstrates that the Tribunal did not engage in the exercise of weighing the evidence, accepting some evidence while rejecting other evidence to arrive at its conclusion that the hypothesis connecting the applicant’s Parkinson’s Disease to the circumstances of his operational service did not arise on the material. The Tribunal does refer to the substantial difficulties which arise on the evidence in relation to key aspects of the hypothesis the applicant has posited at Reasons [64]-[69]. However, at [70], the Tribunal makes clear that the evidence given by the applicant points only to a temporal connection between the applicant’s smoking and his operational service, and a temporal connection is insufficient. At [71] the Tribunal says,

[W]hen all the material in evidence is considered, [the Tribunal is] not persuaded the material points to or raises the hypothesis for which Mr Smith contends. While there is some material pointing to elements of the hypothesis, albeit attended by inconsistencies, the materials are not sufficient to raise important elements of the hypothesis. The key causal element of the hypothesis lacks supporting material.

42    The formation of the opinion as to whether a reasonable hypothesis is raised, as s 120(3) calls for, “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”: Bull v Repatriation Commission (2001) 66 ALD 271; [2001] FCA 1832 (Moore, Emmett and Allsop JJ) at [22] (and the cases referred to there).

43    There is nothing to indicate that the Tribunal impermissibly entered into fact-finding which is reserved to it only when considering s 120(1) (being Deledio Step 4). The Tribunal assessed the whole of the material before it and determined that none of the material posited a causal relationship between the applicant’s Parkinson’s Disease and his operational service; specifically, that the material did not posit a causal relationship between the applicant’s history of smoking, if that was taken as true, and his operational service. That was a determination of fact. That determination would only be amenable to review if it was unreasonable. There was no question of law contained in the Supplementary Notice of Appeal related to that determination being unreasonable, and so, there is no reviewable error of law within the meaning of s 44 of the AAT Act.

44    In respect of Question of Law 1B, that the Tribunal erred by applying a balance of probabilities standard of proof in weighing the evidence, as I have found that the Tribunal did not make any findings of fact, this question does not arise. For the avoidance of doubt, the determination of whether a reasonable hypothesis is raised is determined to the reasonable satisfaction of the Tribunal, not to the reversed standard of beyond reasonable doubt, which is reserved for consideration of s 120(1) (Deledio Step 4).

45    The applicant has failed to demonstrate any error in respect to Question of Law 1.

Question of Law 2

46    Question of Law 2 contends that the Tribunal erred by conflating the examination of a reasonable hypothesis of connection to service with the examination, application and determination of the relevant Statements of Principles for Parkinson’s Disease, being SoP 55/2016.

47    The Tribunal, at Reasons [74]-[92] addresses the question, “Does the template of the [Statement of Principles] uphold the hypothesis?”. The Tribunal was here addressing s 120A(3) of the VE Act, which holds that for the purposes of s 120(3), for the hypothesis connecting the injury or disease to the person’s service to be reasonable, there must, relevantly, be a Statement of Principles under s 196B which upholds the hypothesis. Deledio Step 3, which provides guidance to this element of the statutory test, can be summarised as saying that the hypothesis raised will be reasonable if the hypothesis fits with, and is consistent with, the “template” found in the SoP.

48    The applicant’s submissions in respect of Question of Law 2 substantially repeated the submissions made in respect of Question of Law 1, that is that the Tribunal engaged in fact-finding by rejecting aspects of the applicant’s evidence before determining whether a reasonable hypothesis of connection arose.

49    In trying to synthesise the applicant’s submissions with the Supplementary Notice of Appeal, it seems the core of the ground is a contention that:

(a)    the Tribunal, at this point, should have accepted there was a hypothesis put forward by the applicant, if the Tribunal had not engaged in fact-finding;

(b)    the Tribunal should then have asked itself whether that hypothesis was supported by the SoP;

(c)    instead, the Tribunal conflated steps (a) and (b) by finding that there was no reasonable hypothesis supported by the SoP, by impermissibly engaging in fact-finding to draw the conclusion that the hypothesis required by the SoP was not made out.

50    The Respondent submitted that it is incorrect to assert that there is a distinction to be drawn between the existence of a reasonable hypothesis and whether the hypothesis connects Mr Smith's Parkinson's Disease with the circumstances of his operational service.

Consideration

51    As Gordon J stated in Ellis at [51], when discussing a submission that the Tribunal, in that matter, had conflated the raising of the hypothesis with the reasonableness of the hypothesis, “the Deledio steps are a guide and the AAT is not required to follow them mechanically”. Gordon J went on to say at [52], “the inquiry is whether there is a reasonable hypothesis. The section does not distinguish between the ‘raising’ and the ‘reasonableness’. As stated in Forrester at [74], the first Deledio step, the raising of a hypothesis, is an aspect of reasonableness.”

52    It is not accepted that the Tribunal erred by conflating the examination of a reasonable hypothesis of connection to service with the examination, application and determination of the SoP. In Hill v Repatriation Commission (2005) 85 ALD 1; [2005] FCAFC 23 at [85] (Wilcox, French and Weinberg JJ), the Full Court referred to “ample authority…for the proposition that the AAT is not obliged to proceed step by step, in a mechanical manner” and said that “the Deledio steps were not meant to operate in substitution for the requirements of the VE Act.”

53    Again, a review of the Tribunal’s Reasons at [73]-[92] reveals that the Tribunal did not engage in fact finding in determining whether the material gave rise to a reasonable hypothesis of connection. The Tribunal finds at Reasons [81], “…there is very scant material which goes to the causal connection between Mr Smith’s alleged smoking habit and the circumstances of his operational service”.

54    At Reasons [81] and [82], the Tribunal identifies the hypothetical possibilities raised by Mr Smith’s case as being:

(a)    he started smoking because he was stressed when undertaking night watch duties;

(b)    he was bored, cigarettes were widely and cheaply available and most people on HMAS Hobart smoked; and

(c)    Mr Smith was subjected to peer pressure to smoke and there was a smoking culture prevalent on HMAS Hobart at the time.

55    The Tribunal then, at paragraph [82], rejects the possibilities as not being open on the material before the Tribunal. Again, the Tribunal did not reject any evidence before doing so, and did not make this determination based on selective evidence.

56    Rather, the Tribunal makes clear at Reasons [83], that the only hypothetical possibility that was raised in the material, rather than by way of submissions, was the applicant’s oral evidence that “he was often bored as the work was mundane, cigarettes were readily and cheaply accessible and most people smoked”.

57    The Tribunal continues, at Reasons [83], that:

In order to raise the hypothesis of connection, it is not enough for the material to point to the setting in which Mr Smith is alleged to have commenced smoking without pointing to the contributory cause of this event. More is required. Without material pointing to or raising a causal connection between the circumstances Mr Smith identified on board HMAS Hobart and his alleged smoking habit, the hypothesis lacks supporting material.

The “setting” in which Mr Smith commenced smoking was the conditions that existed on HMAS Hobart. That was Mr Smith’s hypothesis.

58    The Tribunal, at Reasons [84] states “the causal link cannot be met by speculation”. The Full Court explained in Hill at [97] that, “the AAT is not required to trawl through voluminous documentation, with a view to seeing whether somewhere within that body of material there might be the semblance of an hypothesis…There is a substantial difference between an hypothesis fairly raised by the material, and one which can only be postulated on the basis of speculation and conjecture”. The Court went on to say at [98]:

That difference is reflected in the use of the terms “points to” and “raise” in the first and second Deledio steps. An hypothesis is neither pointed to, nor raised, unless it emerges both obviously and directly from the evidence in question. If it is necessary to couple a fertile imagination with a selective rendition of the evidence in order to create the hypothesis, it is not an hypothesis of the kind which the Full Court in Deledio had in mind.

59    The Tribunal in Reasons [73]-[92] does not impermissibly conflate the examination of a reasonable hypothesis of connection to service with the examination, application and determination of the SoP. The Tribunal considered whether the applicant’s hypothesis fit within the SoP. The Tribunal repeated its finding that a causal, as opposed to temporal, connection was not raised on the material. As a causal connection is required, by both the SoP and s 13 of VE Act, the Tribunal found the applicant’s claim failed. The applicant has failed to demonstrate any error in respect to Question of Law 2.

Questions of Law 3, 4 and 5

60    Questions of Law 3 and 4 contend that the Tribunal erred in its application of ss 120(1) and (3). Questions of Law 3 and 4 seem to restate, by reference to the particular legislative sections, Questions of Law 1 and 2.

61    Question of Law 5 seeks to impugn the decision based on the Tribunal’s approach to “fact finding” and how it addressed “disputed facts”, in its application of ss 120(1), 120(3), 120(6) and 120A. The only additional aspect of this question compared to Questions of Law 1 to 4 is the proposition that the Tribunal misapplied s 120(6). This section states that in relation to the determination of whether an injury or disease was war-caused, there is no onus of proof on either party.

62    Consistent with the Full Court’s analysis in Deledio, fact finding only occurs at Deledio Step 4. I do not accept the applicant’s submission that the Tribunal engaged in fact-finding prior to that step. For the reasons given above, the Tribunal did not engage in fact finding in finding there was no causal connection between the applicant’s smoking habit and his operational service on HMAS Hobart. That much is clear from the Tribunal’s conclusion at Reasons [93] that:

Even though there is material pointing to Mr Smith having a history of a ‘regular smoking habit’, albeit not entirely clear, and without proof of facts, the material does not raise or point to the causal link between his alleged regular smoking habit and the circumstances of his operational service. The gap cannot be bridged by speculation or assumptions, or by calling upon the procedural latitude which is to be afforded under s 119(1)F(g) and (h) of the Act.

63    The applicant has failed to establish any error in respect of Questions of Law 3, 4 and 5.

Question of Law 6

64    The applicant’s written and oral submissions do not articulate with any precision the basis upon which he contends that the Tribunal misapplied the decisions of Bushell and Byrnes in determining the existence of a reasonable hypothesis connecting the applicant’s Parkinson’s Disease with the circumstances of his war service. The applicant has not made good any error on the part of the Tribunal in respect of Question of Law 6.

Question of Law 7

65    The Tribunal’s Reasons at [86]-[88] do not disclose any error in the Tribunal’s application of s 119 of the VE Act. The Tribunal acknowledged that Mr Smith’s cognitive processes were affected by the conditions from which he suffers, including his Parkinson’s Disease. It noted steps were taken to “ensure [Mr Smith] was given a reasonable opportunity to present his case with the assistance of his wife, daughter and his lay advocate”: Reasons [56], [57] and [58]. The Tribunal had “carefully considered and taken into account Mr Smith’s cognitive issues” and the “difficulties in obtaining witnesses to event[s] more than 50 years”: Reasons [88]. Contrary to the allegations in Ground 7, Mr Harris’ statement was received into evidence: Reasons [60].

66    The applicant has failed to establish any error in respect of Question of Law 7.

Question of Law 8

67    I do not accept that the Tribunal gave inadequate and insufficient reasons contrary to s 43(2B) of the AAT Act. The Tribunal provided detailed reasons which enable the reader to understand the decision reached by the Tribunal and the process of reasoning by which that decision was reached.

68    The applicant has failed to demonstrate any error in respect to Question of Law 8.

DISPOSITION

69     I am not satisfied that the applicant has established any of the Questions of Law in the Supplementary Notice of Appeal. The proceeding is dismissed. The applicant is to pay the respondent’s costs of the proceeding.

Associate:

Dated:    9 October 2025