Re Repatriation Commission v Marjorie Perrot [1984] FCA 139; (1984) 1 FCR 507 (29 May 1984)

FEDERAL COURT OF AUSTRALIA

Re: THE REPATRIATION COMMISSION
And: MARJORIE PERROT [1984] FCA 139; (1984) 1 FCR 507
No. G170 of 1983
Repatriation - Appeal - Administrative Law - Evidence - Law Reform - Appeal

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Kirby J.(1)

CATCHWORDS

Repatriation - pension payable to dependent widow - death of former member of the Forces from carcinoma of unknown aetiology - onus of proof - tribunal required to be satisfied beyond reasonable doubt of a negative - nature and intention of statutory process - two stage process rejected.

Appeal - question of law - whether no tribunal could come to conclusion - proof of negative and alternative rational possibilities.

Administrative Law - obligation to give reasons for decision - sanction for for failure - adequacy of reasons - special circumstances.

Evidence - onus of proof - uncontradicted evidence - rejection to be explained - special circumstances of statutory onus of proof - approach to evidence in such circumstances.

Law Reform - standard repatriation documentation - costs and delays of numerous repatriation reviews and appeals.

Repatriation Act 1920 ss 47(2), 101, 107VH(2)(a), 107VG(b), 107VK(1), 107VZZH

Repatriation - Pension to dependent widow - Death of former member of the Forces from carcinoma of unknown aetiology - Onus of proof - Tribunal required to be satisfied beyond reasonable doubt of a negative - Nature and intention of statutory process - Two stage process rejected - Repatriation Act 1920 (Cth) ss 47(2), 101, 107VH2(a), 107VG(b), 107VK(1), 107VZZH.

Appeal - Question of law - Whether no Tribunal could come to conclusion - Proof of negative - Alternative rational possibilities - Repatriation Act 1920 (Cth) ss47(2), 101, 107VH2(a), 107VG(b), 107VK(1), 107VZZH. The fact that the only medical evidence before a Repatriation Tribunal was that there was no connection between an ex-serviceman's war service and his death did not necessarily establish beyond reasonable doubt that there was no such connection. Nor was such evidence, being directed to the ultimate issue for the Tribunal, necessarily to be accepted by the Tribunal. The requirement of the Repatriation Act 1920 (Cth), s. 108VH(2)(a) that the Tribunal be satisfied beyond reasonable doubt that there was no connection between the ex-serviceman's war service and his death, entitled the Tribunal to range beyond the evidence and to indulge in rational speculation concerning possible links which had not been positively excluded by the evidence.

Observations concerning appropriate tests to be applied by the Repatriation Tribunal.

O'Brien v. Repatriation Commission [1984] FCA 95; (1984) 1 F.C.R. 472; Repatriation Commission v. Law [1981] HCA 57; (1981) 147 C.L.R. 635, followed.

Repatriation Commission v. Bishop (1983) 48 A.L.R. 461; Repatriation Commission v. Evans (1984); Repatriation Commission v. Compton [1984] FCA 20; (1984) 1 F.C.R. 99, not followed.

HEARING

Sydney, 1984, May 11, 29. 29:5:1984
APPEAL.

Appeal from decision of the Repatriation Tribunal.

R. J. Burbidge Q.C. with M. Katz, for the appellant.

D. B. Milne Q.C. with A. V. Ritchie, for the respondent.
Cur. adv. vult.

Solicitor for the appellant: T. A. Sherman, Commonwealth Crown Solicitor.

Solicitors for the respondent: Vickery, Wilson & Parkhill.
G.F.V.

ORDER

Appeal dismissed and decision of Tribunal affirmed.

Applicant to pay respondent's costs.

DECISION

This is yet another appeal under the provisions of the Repatriation Act 1920 ('the Act') involving the entitlement to a pension of the widow of a serviceman who died of cancer. As chance would have it, the matter was argued on the day that the Full Court delivered its yet unreported decision in O'Brien v The Repatriation Commission (unreported, 11 April 1984) in which the principles to be applied in these cases were re-examined and, in part at least, elucidated.

The Facts

2. William Henry Perrot ('the deceased') was the husband of Marjorie Perrot, the respondent to this appeal. He was born in 1921. At the age of 20 years, he enlisted as a private in the Australian Army on 5 November 1941. He offered for service in Australia and abroad. On enlistment, the deceased was single. He married the respondent in October 1942. As disclosed by the medical history sheet at the time he was marched in he enjoyed rude good health. He saw service until he was discharged on 15 December 1945. During that service he suffered two periods of hospitalisation. These were related to malaria and varicose veins. The malaria arose as a result of his service at Milne Bay, whence he was sent in the dangerous days of March 1943. Inevitably, the records of medical difficulties during war service are fragmentary, although in October 1945 there was some discussion of early symptoms of hypertension. He was discharged fit.

3. Malaria continued to trouble him, as did varicose veins which he attributed to marching. Liability was accepted for these conditions for pension purposes.

4. In November 1966 he told a doctor in Newcastle that since discharge he had been 'emotionally unstable and a worrier'. At that time he smoked eight cigarettes a day and reported that his mother had died from cancer, his father at age 55 from a coronary occlusion. His psycho-neurosis was considered 'very mild'. However, his doctor considered that 'the origin of his emotion instability seems to date from war service'.

5. In September 1969 he suffered a probable myocardial infarction which he attributed to the accepted war disability of hypertension. Liability was declined but a subsequent appeal resulted in his rate of pension being significantly increased to 80% disability due to war service. His war pension was increased to 100% rate from 8 May 1974.

6. In June 1980 at the Prince of Wales Hospital, Sydney, the deceased was diagnosed as suffering from metastatic carcinoma of the liver, with a primary site apparently in the stomach. Thereafter he received treatment for terminal carcinoma. His last period of admission to hospital was on 6 October 1980. He died on 17 October 1980. The final diagnosis was metastatic adenocarcinoma 'presumably of the gastro-intestinal tract'. The respondent lodged a claim for benefits under the Act claiming that the deceased's death was due to his war service. This claim was considered by the applicant. The result of that consideration is found in a form (Form D.2063) which contains the only medical evidence that was before the Repatriation Review Tribunal ('the Tribunal') relevant to the aetiology of the deceased's terminal condition. As reproduced, this document is unsigned. It was apparently completed by a medical practitioner. Once again, it is necessary for this Court to appeal for an improvement in the standard documentation in cases such as this.

7. The form, after attributing the cause of death to 'disseminated adenocarcinoma' contains the following observations:

Carcinoma of the stomach is the most common neoplasm of the GI Tract.
It is twice as common in men as women. It tends to occur in the age
groups over 45 years. Nothing is known of its aetiology though there is a
striking hereditary influence in certain families. There also appears to

be

a clear association between blood group A and cancer of the stomach.
Attempts have been made to discover a pre-cancerous lesion of the
stomach, and there is evidence that chronic atrophic gastritis precedes
gastric carcinoma. The member died at the age of 59 from widespread
cancer and thus he was in the usual cancer age group. The exact aetiology
is unknown, however the course of the disease was rapid, he died on
17.10.80. ie 18 months after he first presented to his LMO feeling

unwell.

The time lapse between war service and recurrence of malignancy
precludes any casual relationship between X/M's fatal disease and his
service. I note that X/M's hypertension and his psychoneurosis were well
controlled throughout his illness and were not related to his cause of
death.

In response to the instruction of the form to set out 'whether in your opinion the incapacity from which the veteran has died, arose out of, or is attributable to his eligible period of service' the unidentified medical officer of the applicant replied:

NO. Not due to service in any way. Death was due to a rapidly fatal
malignancy (cancer of the stomach with metastases) occurring in a man in
the usual cancer age group.

In response to the question whether the incapacity from which the veteran died had been 'contributed to in any material degree or has been aggravated by the conditions of his eligible period of service' the response was likewise in the negative, it being declared 'I have studied the records relating to the veteran'. A large file of records was produced to the Court and apparently was before each level of the earlier decision-making process.
Repatriation Review

8. The respondent's claim was rejected by the Repatriation Board which concluded:

In the absence of any contrary medical opinion, the Board accepts the
opinion expressed by the Departmental Medical Officer as to the cause of
disseminated adenocarcinoma. That opinion is accepted as providing a
reasonable explanation of the cause of the condition to the exclusion of
factors relating to the member's war service. The Board is satisfied
beyond reasonable doubt, that there are insufficient grounds for allowing
the claim by the widow that the member's death was due to his war
service. The claim is therefore refused.

9. The respondent appealed from the Board to the Repatriation Commission, the present applicant. The Commission on 8 April 1981 disallowed the appeal, concluding that it was satisfied that 'a causal relationship between the member's war service and the cause of his death has been excluded beyond reasonable doubt'. From this decision the respondent appealed to the Repatriation Review Tribunal persisting with her claim that 'conditions of war service contributed to my husband's death'. Specifically, she asserted that 'prior to war service my husband was a quiet type of man who did not smoke'. The matter came before the Repatriation Review Tribunal and was determined in favour of the respondent on 25 May 1983. A pension was awarded to the respondent in accordance with Division 1 of Part III of the Act to have effect on and from 18 October 1980 being the date following the death of the deceased.

10. After observing the well known fact that the Act provides in subsection 47(2) and paragraph 107VH(2)(a) a 'governing provision' in identical terms that imposes a high responsibility of disproof on the applicant, the Tribunal, in a unanimous decision, concluded:

Section 107VH(2)(a) of the Act as interpreted by the High Court of
Australia in The Repatriation Commission v Nancy Law (1981) 36 ALR
p411, creates a presumption of entitlement by providing that the Tribunal
must grant a claim unless the Repatriation Commission can satisfy it
beyond reasonable doubt, that all of the possible relationships between
war service and death or incapacity have been excluded. In other words, a
relevant relationship in terms of s 101 is deemed to be present if the
Commission fails to prove its absence beyond reasonable doubt ... The
Tribunal is unable to accept the proposition that if nothing is known of

the
aetiology of a fatal disease than all the relationships have been excluded

beyond reasonable doubt. Therefore the Tribunal concludes that the
burden of disproof has not been discharged and therefore it is not
satisfied, beyond reasonable doubt, that all the relevant considered
relationships arising pursuant to s 101 of the Act have been excluded.
Therefore the application to set aside the Commission's decision

succeeds.

It is from this decision, and this approach to the Tribunal's task, that the Repatriation Commission appeals to the Court. It is worth pausing to observe once again the time-consuming and costly procedures of review provided under the Act. Including the primary decision-maker, there are no few than five levels of review as the decision progresses from the clerk to the Board, from the Board to the Commission, from the Commission to the Tribunal and, in this case, from the Tribunal to the Court. Whilst these facilities for review are doubtless protective of veterans and their families, as the course of this case discloses, they necessarily involve diversion of very considerable and expensive public resources. They raise the issue of whether this is, with diminishing numbers of veterans, the most cost-effective approach to the national recognition of the service of veterans. See Keely and Fitzgerald JJ in O'Brien v The Repatriation Commission (unreported, 11 April 1984, 52). In the circumstances of the number of cases proceeding languidly through the numerous levels of the repatriation appeal hierarchy, causing anxiety to an inevitably diminishing and generally aged group of the population specially worthy of generous treatment by the Commonwealth, consideration should be given to whether the Act and its administration requires reform.

11. In this case, the Tribunal adopted an approach which, if correct, might, without, more, obviate the necessity of significant legislative or administrative change. Its approach was simple. Once eligibility by war service and relationship to the deceased were established and death proved to result from a disease of unknown aetiology, the requisite proof beyond reasonable doubt excluding a link between the fatal disease and war service was virtually impossible. If the aetiology of the disease is unknown, that would, in normal compensation litigation, prevent the proof of entitlement, the obligation to establish which normally falls upon the claimant for a benefit. But this is not normal compensation litigation. The Parliament has not only reversed the onus of proof. It has also expressed the onus in terms of the high standard of satisfaction beyond reasonable doubt. In default of such a satisfaction, the Tribunal's obligation under paragraph 107VH(2)(a) is to set aside the decision and to substitute for that decision a decision in accordance with the Act. Obviously, if the approach adopted by the Tribunal in the present case is the correct one, the implications for repatriation cases of diseases of unknown aetiology, such as cancer, will be significant. Because the Repatriation Commission could rarely, if ever, exclude beyond reasonable doubt the possibility of causal relationships, precisely because of the lack of present medical knowledge as to the causative factors of cancer, the statutory process required by the Act would, in most cases, certainly on short evidence such as was available in the present matter, result with virtual inevitability in a failure to discharge the onus. From this conclusion the award of the pension would necessarily follow. The essential question for determination is, therefore, whether the Tribunal's simple approach was correct, sanctioned by authoritative interpretations of the Act.

Grounds of Appeal

12. The applicant contested the approach taken by the Tribunal. Appeals lie from the Tribunal to the Court only on questions of law. Two questions of law were proposed and to these the applicant sought to add a third at the hearing. Although the respondent objected to this course, it is convenient to admit the additional ground of appeal which essentially restates the central question for determination. The questions of law raised on the appeal are:

(a) whether it was open to the Tribunal on the material before it to
conclude
that it was not satisfied beyond reasonable doubt that there
insufficient
grounds for granting the claim;

(b) whether the Tribunal in causing to be prepared a written statement

of

its
decision, complied with the obligations imposed on it by subsection
107VK(1) of the Act; and

(c) whether the Tribunal properly construed and applied paragraph
107VH(2)(a) of the Act.

The Standard and Burden of Proof

13. The unusual provision in the Act which deals with the approach to be taken by the Tribunal in cases such as this is to be found in section 107VH. The section accompanied the creation of the Repatriation Review Tribunal by amendments to the Act inserted by the Repatriation Acts Amendment Act 1979. In substance, the provision repeated the beneficial language of section 47 of the Act already applying to the Board and the Commission. Relevantly, the section provides:

107VH (1) In a proceeding on a review, the Tribunal shall have regard to the

evidence that was before the Commission or a Board when the
decision the subject of the review was made ...

(2) On the completion of its consideration in a proceeding on a

review

(a) where the decision the subject of the review was a decision
refusing a claim or application for a pension - the

Tribunal

shall set aside the decision unless it is satisfied, beyond
reasonable doubt, that there were insufficient grounds for
granting the claim or application ...

(3) Where the Tribunal sets aside a decision the subject of a

review,

it
shall substitute for that decision such decision as the

Tribunal

considers to be in accordance with this Act.

By section 107VG, the Tribunal is instructed that in conducting a proceeding or the hearing of a proceeding or in making a decision in a proceeding on a review it is not bound by technicalities, legal forms or rules of evidence and it is to act according to substantial justice and the merits and all the circumstances of the case. Specifically the Tribunal is obliged:

107VG(b) ... without limiting the generality of the foregoing, shall take
into account any difficulties that, for any reason, lie in the way of
ascertaining the existence of any fact, matter cause or circumstance,
including any reason attributable to -
(i) the effects of the passage of time, including the effect of the

passage

of time on the availability of witnesses; or
(ii) an absence of, or a deficiency in, relevant official records ...

It is instructive, in considering the legislative intent as to the approach to be taken to the statutory standard of proof, to have regard to the legislative history, certain statements made in Parliament explaining the legislation, and the very fact that on its face the legislation adopts an approach that is, to say the least, unusual.

14. As for the legislative history, the predecessor to paragraph 107VH(2)(a) which governed the Tribunal in the present case was subsection 47(2) of the Act. As enacted in 1943 (by Act No 22 s 21) it provided:

47(2) It shall not be necessary for the claimant, applicant or appellant to

furnish proof to support his claim, application or appeal but the
Commission, Board, Appeal Tribunal or Assessment Appeal Tribunal
determining or deciding the claim, application or appeal shall be

entitled

to draw, and shall draw, from all the circumstances of the case, from the
evidence furnished and from medical opinions, all reasonable inferences

in
favour of the claimant, applicant or appellant, and in all cases whatsoever

the onus of proof should not lie on the person or authority who contends
that
the claim, application or appeal should not be granted or allowed to the
full
extent claimed.

This provision, already beneficial to veterans, was not, however, considered sufficiently protective of their rights. In 1977 the Act was amended (by Act No 56, s 12(1)) to insert the new section 47 in the terms in which the provision presently appears and which is repeated, in the case of the Tribunal, in paragraph 107VH(2)(a) of the Act.

15. Explaining the 1977 amendment to section 47, the Minister delivering Second Reading Speech (Mr Newman) indicated that the changes arose out of the independent inquiry into repatriation conducted by Justice Toose as well as recommendations received from a large number of veterans' organisations. After citing various extracts from Justice Toose's report, the Minister went on:

The Bill also sets out to deal with one of the most important, yet one of
the most controversial, provisions in the Repatriation Act, section 47.
That section sets out the principles to be applied by determining
authorities under the Act in the hearing and determination of claims,
applications or appeals under the Act. Mr Justice Toose reported that
there was before his inquiry a considerable amount of evidence that the
present section 47 had caused much dissatisfaction and frustration and he
concluded that the present provisions of section 47 had proved most
unsatisfactory and should be amended. He went on to analyse various
provisions in other countries and recommended some major amendments
to section 47. The government has examined this question in great depth
and is concerned that the provision should be cast in its simplest

possible

form, while still preserving to a veteran the maximum advantage that
should be allowed. The Bill provides for the repeal of the present

section
47 and for the insertion in its place of a much simpler section which will

provide that determining authorities : Are not bound by technicalities,
legal forms or rules of evidence; and shall act accordingly to

substantial
justice ... The determining authorities will be required to grant a claim or
application or allow an appeal unless they are satisfied beyond reasonable

doubt that there are insufficient grounds for granting that claim or
application or allowing that appeal.
Commonwealth Parliamentary Debates (House of Representatives) 31 May
1977, 2243, 2244.

16. When the decision was made in 1979 to establish the Tribunal, the then Minister for Veterans' Affairs (Mr Aderman) explained in his Second Reading Speech to Parliament the decision to apply, in respect of the Tribunal, the same concepts underlying section 47:

The amendments which have been made to this section are only necessary
in order to encompass the new Tribunal within their framework and
require the new Tribunal to apply the same principles as are applied by
the other determining authorities under the Act. The amendments do not
in any way change the original concepts underlying section 47.
Commonwealth Parliamentary Debates (House of Representatives) 1
March 1979, 571.

What is to be inferred from this legislative material? From the Second World War a beneficial provision favouring claimants for repatriation benefits had existed the Act. But the decision was taken by Parliament in 1977, following a major independent inquiry, to make the provision significantly more beneficial. As stated by one Member of Parliament the aim was to 'lift a great cloud' from the process of determination (See Commonwealth Parliamentary Debates (House of Representatives) 1 June 1977, 2370). However that may be, according to the Minister it was to simplify the provision and preserve 'the maximum advantage that should be allowed' to the veteran. True it is, some preconditions had still to be fulfilled such as the establishment of war service and, in the death case, the relevant relationship with the deceased former servicemen. But once these formal preconditions were established the onus was to be upon the Commonwealth authority to establish beyond reasonable doubt that there were insufficient grounds for granting the claim. In part, this beneficial reversal of the burden of proof ordinarily imposed upon those who claim benefits arose from a recognition of the inadequacy of formal medical and other records during the busy time of war. In part, it was simply a reflection of the policy of offering special and virtually unique advantages to those who had served the nation in its Defence Forces and their dependants. Clearly, where Parliament has amended and re-enacted such a deliberately generous provision, it is not for the courts to circumscribe it with narrow constructions that frustrate the intention of Parliament to effect a national policy of high moral content. On the contrary, the provision should be given the generous and beneficial construction which that policy plainly intended and justified. Such has not always been the approach of courts and tribunals to the provision.

17. There are two further reasons for adopting this approach. The first is to be found in the language of the Act itself. The duty in subsection 47(2) and in the equivalent provision binding the Tribunal (paragraph 107VH(2)(a)) is cast in imperative terms. The Tribunal is instructed that it 'shall set aside' an adverse decision unless it reaches the satisfaction, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application. The legislation is unusual in three respects. First, it reverses what would normally be the obligation of proof which, in our system of law, usually falls upon the person who asserts. Secondly, it requires the Commonwealth authority to prove a negative, namely that there were 'insufficient grounds for granting the claim or application'. It is often difficult to establish negative propositions. It is difficult where, as in the present case, the serviceman is dead and hence is not available to give detailed evidence about his war service and medical history. It is also difficult in the present case because of the current state of knowledge about the causes of cancers such as the one that resulted in the death of the deceased.

18. The third unusual provision is that the legislation not merely reverses the onus and requires those disputing the claim to prove the negative. It requires them to do so 'beyond reasonable doubt', a provision normally restricted to the proof of criminal offences and hence a very high standard because of the role it plays, normally defensive of the citizens' liberty, purse and reputation.

19. The second consideration is the state of legal authority. There has been a burgeoning jurisprudence about the approach to be taken to the beneficial provisions on the standard of proof under the Act. The High Court of Australia clarified the provision in Law v Repatriation Commission [1981] HCA 57; (1981) 147 CLR 635, to which the Tribunal adverted. Specifically, the Court made it clear that section 107VH of the Act required that, in relation to any fact necessary to establish entitlement, the Tribunal (and by inference other relevant Commonwealth authorities) must be satisfied beyond reasonable doubt that the fact does not or did not exist linking the disease and war service before it could refuse an application or dismiss an appeal by a claimant. Murphy J drew attention to the function of, and approach to be taken by, the repatriation authorities:

The role of the Commission and of the Tribunal should not be
misunderstood. Their function was to decide a question of fact or of
mixed fact and law. They were not, on the evidence, bound in law to find
for the claimant. Even where experts differ, as here, it is open to the
Tribunal to be satisfied beyond reasonable doubt that there were
insufficient grounds. A conflict of testimony (expert or otherwise) does
not require that a claim be upheld (any more than in a criminal trial it
would require an acquittal) although often it would have that result.
Nevertheless it was not enough that the Tribunal prefer the evidence
(including opinion evidence) which tends to disprove the claim. Even if

it

rejects the evidence in favour of the claim, the claimant is entitled to
succeed unless the Tribunal is satisfied beyond reasonable doubt that
there are insufficient grounds for the claim.

Aickin J (with whose reasons Gibbs CJ, Stephen and Mason JJ agreed) pointed out that, when the matter reached the Tribunal, the opinion of the Commission was no longer material. There, the only question was whether the Tribunal was satisfied beyond reasonable doubt of the negative propositions that there were not sufficient grounds for granting a pension. Specifically, Aickin J rejected the notion of a 'two-stage process':

(T)he submission that s 107VH is not an 'evidentiary provision' should be
rejected. I am satisfied that the operation of that section does not

involve

a two-stage process and that it requires that, in relation to any fact
necessary to establish entitlement, the Review Tribunal must be satisfied
beyond reasonable doubt that the fact does not, or did not, exist before

it

can refuse an application or dismiss an appeal by a claimant.

The reference to the rejection of a 'two-stage process' is important. Such is the typicality of imposing upon those who claim benefits the duty of establishing that claim, that it may be difficult for the legal mind to escape from its customary approach and to impose upon itself the process of thought required by the novel evidentiary provisions of the Repatriation Act. Yet, certainly before the Tribunal, this is what must be done. Once certain basic facts as to qualification for entitlement are established, paragraph 107VH(2)(a) requires, in mandatory language, that the claim is to be granted or the appeal allowed. The only disqualification from that entitlement exists when the Commonwealth authorities discharge, on the high standard of proof imposed upon them by the Parliament, the burden of establishing the negative proposition so that the Tribunal is led to a positive satisfaction that insufficient grounds for granting the claim or appeal have been established. What Aickin J was referring to in rejecting a 'two-stage process' was the notion that, in the face of the mandatory duty imposed by the legislature upon the Tribunal, the legislative history, the plain statutory policy and the duty to construe such a provision beneficially, the claimant had first to establish a positive evidentiary link between war service and the disease giving rise to the claim. This notion Aickin J rejected.

20. In the Law case, there was expert medical evidence, unchallenged as to standing or quality, that suggested a link between the cancer which caused the veteran's death and the smoking which arose out of or was attributable to his war service. Both Murphy J and Aickin J expressed the view that in such a situation it was difficult to see how the Tribunal could have properly been satisfied beyond reasonable doubt that the reports favourable to the applicant were wrong. Indeed, Murphy J described the decision of the Tribunal in those circumstances as 'astonishing'. It is true that some of the observations of Aickin J might, in isolation, suggest the obligation on a claimant to prove that the carcinoma from which her husband died was caused by smoking which in turn had arisen out of or was attributable to his war service. In the present case there was no medical evidence favourable to the respondent widow. There was no significant case made out of war service smoking nor any medical evidence to link any such smoking and the carcinoma which led to the deceased's death. There was no evidence otherwise linking that carcinoma with war service in a positive way at all. Accordingly, in this case the issue is more starkly posed than in the Law case as to whether a threshold must first be reached by a claimant, which goes beyond mere proof of formal matters, such as war service and relationship to the deceased and requires at least some established, rational link between the disease and war service to be established before the claimant can succeed. Aickin J specifically denied such a 'two-stage process'. Murphy J in terms warned that the duty of the Repatriation Commission and the Tribunal was to 'implement the onus of proof section, not to frustrate it'. Yet a series of decisions of this Court, following the Law case, suggested that a claim had to be rejected unless there was something in the material pointing to a 'real' possibility of a link between the disease and war service. See Toohey J in Repatriation Commission v Bishop (1983) 48 ALR 461, 468; Northrop J in Repatriation Commission v Evans (1984) 49 FCR 45, unreported judgment, 21 December 1983; Toohey J in Repatriation Commission v Comptom, unreported judgment, 20 February 1984. This suggestion has now been considered by the Full Court in the case of O'Brien, the judgment in which, as I have said, was providentially handed down on the day this appeal was heard. The Court on that occasion comprised Sweeney, Keely and Fitzgerald JJ. The Court was unanimous as to the result. The case was one of essential hypertension. There was conflicting medical evidence as to whether there was a relationship between the applicant's wartime stress or anxiety state and this condition.

21. Sweeney J expressed the view that the Tribunal's decision was 'best left in words the Act itself (uses), so that:

the Tribunal should pose for itself the question whether it is satisfied
beyond reasonable doubt that there are insufficient grounds for granting
the claim.

Sweeney J cited the helpful observations of Windeyer J in Commonwealth v Butler [1958] HCA 56; (1958) 102 CLR 465, 479 where Windeyer J, dealing with attempted explanations of causation and consequence, said that they were as 'unhappy as definitions of reasonable doubt':

In the search for some grounds for isolating a particular event from the
totality of circumstances preceding a later event, various adjectives

such

as 'direct', 'proximate', 'decisive', 'immediate', 'effective' and 'real'
have
been pressed into service to qualify 'cause'. From these there is an easy
drift into such terms as 'materially contributing factor'.

Sweeney J warned, rightly in my view, of the danger of just such a drift in repatriation cases such as the present. Turning to the circumstance where the aetiology of a medical condition is unknown, he said:

The posing of the question in the words of the Act will not necessarily
produce the answer that where the aetiology of a condition from which an
applicant suffers is unknown, he must succeed in his claim. Very often
such an applicant will succeed, but the state of the evidence, including
the state of medical evidence of a particular condition, may lead to the
result that the Tribunal will conclude that, while it cannot be satisfied
beyond reasonable doubt of the precise cause of the condition, it may be
so satisfied that there was no connection between war service and the
condition.

Concluding that the medical evidence called for the applicant in that case was not untenable, inherently incredible or involving manifest error, Sweeney J concluded that the Tribunal had misdirected itself in the proper approach to the assessment of the evidence required by paragraph 107VH(2)(a) of the Act.

22. The joint judgment of Keely and Fitzgerald JJ took pains to trace the course of decisions in the Court since the Law decision of the High Court of Australia. Their Honours concluded that in Law's case Aickin J did not intend to convey that in every case, if at all, 'there need be something from which it is possible to infer the requisite connection'. Specifically, they rejected the view that in every case, whatever the circumstances, there would be insufficient grounds for granting a claim in the absence of evidence pointing to a 'real possibility'. The judgment of the Full Court of this Court in Law was authority for the proposition that a claim must succeed if there is such evidence and the possibility is not disproved beyond reasonable doubt. But that is a different thing, as their Honours pointed out, to asserting that in the absence of such evidence a provision such as paragraph 107VH(2)(a) requires the claim to be rejected because of insufficiency of proof.

23. In the case of Lennell v Repatriation Commission (1982) 1 FCR 8, (1982) 4 ALN No 29, this Court rejected a submission for the widow that in every case where a serviceman died of a disease, the cause of which was unknown, it necessarily followed that his dependants were entitled to a pension because of the impossibility of demonstrating that the cause of the disease from which he died was not a war service cause. But in O'Brien's case, this proposition was explained by Keely and Fitzgerald JJ. First, notwithstanding that the cause may not be known, it might be possible for the Commonwealth authorities to demonstrate to the satisfaction of the Tribunal that the cause was not or could not in the instant case have been connected with war service. Secondly it was pointed out in Rose v Repatriation Commission (1982) 44 ALR 504, 514, that it is a misreading of Lennell to take the majority judgment of Northrop and Sheppard JJ as saying that the absence of evidence necessarily means that a claimant may not succeed.

24. In the light of the decisions of this Court that have followed the authoritative statement of the High Court of Australia in Law's case, the critical statement in the recent O'Brien decision is to be found in the following words of Keely and Fitzgerald JJ (at page 31 of their joint judgment):

In our opinion, a proposition that the Tribunal should be satisfied beyond

reasonable doubt that there is no 'connection' between war service and
incapacity or death unless there is something in the material pointing to

a

'real' possibility of such a connection which is not disproved by other
material cannot be accepted as a principle of law of general application.

Their Honours continued at page 37 of their judgment:

. . . If there is material which tends to disprove a fact, the question
arises
whether the non-existence of that fact is the only rational conclusion on
all the material, including such material, if any, as points to the
possibility that the fact does exist. A 'real' possibility of the

existence

of
that fact may be founded on something in the material which points to its
existence or may arise from a lack of sufficient cogency in the material
to disprove its existence or from some deficiency in the range of that
material. A real possibility of the existence of a fact may be left open

by

material although there is nothing in the material which points to that
possibility. The possibility may in such circumstances be 'speculative'

but

it is nonetheless 'real', not 'fanciful', in the relevance sense, for the
very
reason that, on the evidence, the non-existence of the fact is not the

only

rational conclusion.
If there is no material in respect of a fact, or if the material is

neutral

in
the sense that it leaves the existence of a fact unknown, there is no
rational basis for a choice between the conclusion that the fact does

exist

and the conclusion that it does not. The non-existence of the fact is not
the only rational conclusion.

Keely and Fitzgerald JJ (at p 39) then proceeded to offer a test which is relevant to the present case:

If the material leaves the cause of death unknown, it is likely to prove
extremely difficult to be satisfied that the death was not 'connected

with'

war service in a manner specified in the Act. However, the possibility of
an exceptional case may be left open as it was in Lennell's Case in
relation to an incapacity of unknown aetiology because it is a judicial
necessity to acknowledge such possibilities lest the law should appear to
have been laid down in a way which excludes them from consideration.

Formal matters of entitlement must be proved. But, so far as is relevant to this case, the result of the authorities, including the recent statement in O'Brien's case, appears to require, at least in the case of the Tribunal in pursuance of its duty under paragraph 107VH(2)(a) of the Act, the following approach:

(1) The starting point must be the words of the Act itself, so that the
Tribunal poses the question whether it is satisfied beyond

reasonable

doubt that there are insufficient grounds for granting the claims
(Sweeney
J in O'Brien's case, 9).

(2) If it is not so satisfied, the Tribunal's clear statutory duty under
paragraph
107VH(2)(a) is to grant the claim or allow the appeal, taking care

that

it
implements and does not frustrate the unusual and deliberately
beneficial
provision on onus of proof in the Act (See Murphy J in Law's case
[1981] HCA 57; (1981)
36 ALR 411, 414).

(3) Where a serviceman dies of a disease, the cause of which is unknown,

it

does not necessarily follow that in every case his dependants are
entitled
to a pension because it is impossible to demonstrate that the cause
from
which he died was not related to war service. In a particular case

it

may
be possible to demonstrate there was not or could not have been a

war

service connection (Northrop and Sheppard JJ in Lennell's case).

(4) But this last principle does not cast an onus on the claimant
incompatible
with the language of paragraph 107VH(2)(a) of the Act. It does not
warrant a 'two stage approach' specifically rejected by Aickin J in
Law's
case (see [1981] HCA 57; 36 ALR 411, 424. See also the Full Court of this Court in
Repatriation Commission v Byrne and others (1981) 40 ALR 296 at 303.
See also Keely and Fitzgerald JJ in O'Brien's case, 25).

(5) References in earlier decisions of this Court suggesting the need in

a

claimant to establish a 'real' and not a 'fanciful' possibility of
connection
between war service and disease must be approached with caution.

They
cannot be permitted to undermine the approach to proof required by this
special legislation. They find their origins in criminal cases where,

as
Keely and Fitzgerald JJ pointed out, positive and not negative
conclusions
are typically being asserted (O'Brien's case, 36). Futhermore, as
Sweeney
J points out (ibid, 9-10) in the words of Windeyer J such language

can

lead
to a 'easy drift' to a standard and locus of proof quite different

from

the
one contemplated under this Act.

(6) It is not necessary, to deny success to the claimant, for the
respondent to
prove or disprove even non-essential issues of fact beyond

reasonable

doubt (Keely and Fitzgerald JJ in O'Brien's case, 45).

(7) Where, as here, the Tribunal has made a decision in favour of the
claimant, the applicant, in order to succeed, must demonstrate that

no
Tribunal, properly directing itself as to the relevant matters of law,

could
have come to any other conclusion than that it was satisfied beyond
reasonable doubt that war service could not have been the cause of

the

cancer suffered by the deceased resulting in his death (Cf the Full
Court
in Byrne's case, 302-3). In Law's case, Murphy J was also at pains

to

stress
the difficulty of disturbing a decision made by the Tribunal, so

long

as it
made no error of law [1981] HCA 57; (36 ALR 411, 414).

Approach to the Present Case

25. I now turn to apply these principles, which are inferred from the legislation and the current state of authority, to the facts in the present case. It must be conceded that, unlike many of the cases that have previously come before the Court, this is not a case where there was a conflict of medical evidence before the Tribunal, or, indeed, in which there was at least some medical evidence favouring a causal link between war service and the cancer from which the deceased died. Though there was evidence of malaria during war service this was not a case, as was Byrne's case, where it was suggested by positive medical evidence called for the claimant, that the malaria or other infectious tropical disease resulting from war service had caused or precipitated the form of cancer from which, much later in life, the deceased died. Though there was a faint suggestion of a smoking habit which the respondent widow suggested to have been initiated during war service, this was not a case, as were Law's or Lennell's cases, in which evidence was brought of a causal link either directly between war-induced smoking and the fatal carcinoma or indirectly as between war-induced stress, smoking and the terminal disease.

26. Is this, then, a case in which this Court must say that the only decision which the Tribunal could reach was one adverse to the respondent? It is not for this Court to substitute, in an appeal on a question of law brought under subsection 107VZZH(1) of the Act, its assessment of the evidence for that of the Tribunal. True it is, the Court is entitled to make such order as it thinks appropriate by reason of its decision (see subsection 107VZZH(4)). It is also true that sometimes, as in O'Brien's case, the Court will make the order that ought to have been made below. But this will only be done if an error of law is disclosed. In my view, the Court should be cautious, in procedures by way of appeal on questions of law, of itself indulging in a fresh evaluation of its own of the evidence. This is especially so in the present case, where there is a specialist Tribunal appointed for that task, a more than ample procedure for specialist administrative review and where the evidence is in a typically abbreviated form.

27. Turning to the reasons for decision offered by the Tribunal, it was made plain that the case was one which entitled the respondent to make a claim in the terms of the relationships identified in section 101 of the Act as giving rise to the liability of the Commonwealth to pay a pension for service related to death. The Tribunal then adverted to paragraph 107VH(2)(a), to the interpretation of that paragraph in the High Court in Law's case and to the need to avoid the error identified in Lennell's case of inferring an automatic entitlement to a pension simply because a serviceman died of a disease the cause of which was unknown. It is clear from the reasons for decision of the Tribunal that it had in mind the critical evidence on the aetiology of carcinoma of the stomach, so far as this was outlined in the brief material before it. The decision of the Tribunal then followed this course. Formal matters aside, section 101 of the Act, giving rise to liability, requires a proof of relationship between death and war service. Paragraph 107VH(2)(a) of the Act, however, creates a presumption of entitlement, the formal matters being proved, and obliges the Tribunal to grant the claim unless the Repatriation Commission can satisfy it beyond reasonable doubt that there are insufficient grounds for granting it. The Tribunal actually used the words 'that all of the possible relationships between war service and death or incapacity have been excluded'. I agree with Sweeney J that it is wiser and safer for the Tribunal to adhere to the statutory language. However, I do not believe in the present case that this choice of words amounts to a misdirection. The Tribunal, reading the entitlement provisions of section 101 together with the evidentiary provisions of paragraph 107VH(2)(a) concluded:

A relevant relationship in terms of section 101 is deemed to be present if

the Commission fails to prove its absence beyond reasonable doubt.

Again, that may be the effect of the statutory instruction to the Tribunal to grant the claim or allow the appeal. However, it is not expressed in this way in the statute. It would be more helpful if the Tribunal, for the proper process of its own decision-making, were to adhere to the statutory language.

28. After referring to Lennell's case and the joint judgment of Northrop and Sheppard JJ, the Tribunal expressed its finding that there had not been a demonstration beyond reasonable doubt that the cause of death could not have been related to war service. The Tribunal was unable to accept the proposition that, if nothing was known of the aetiology of a fatal disease, then all of the relationships had been excluded beyond reasonable doubt by the applicant. It therefore concluded that the burden of disproof had not been discharged, it not being satisfied beyond reasonable doubt that all of the relevant considered relationships arising pursuant to section 101 of the Act had been excluded.

29. If it were necessary for the claimant to establish a 'real' as distinct from a 'speculative' connection between war service and fatal disease, in the present case the claimant would have to fail. There was simply no evidence at all, let alone a conflict of evidence, on this subject. However, such an approach is not warranted by the legislation as enunciated in Law's case and as lately clarified in O'Brien's case. Certainly , where the aetiology of a condition is unknown, the Tribunal must consider the medical evidence as it is placed before it. Even where the aetiology is unknown it may still be satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim in the particular case. This much was made clear in Lennell's case. It is plain that this principle was before the Tribunal when it reached its conclusion in the present case. It would be a misunderstanding of the respective functions of the Court and of the Tribunal under the Act to say that, although the Tribunal has properly instructed itself, the Court should interfere with its decision in an appeal limited to a point of law, when it has expressed itself not satisfied beyond reasonable doubt and when the burden of establishing that satisfaction lay upon the respondent. The respondent may complain about the difficulty of establishing a negative proposition and especially on the standard of proof required by paragraph 107VH(2)(a). This Court in O'Brien has adverted to the difficulty of disproving facts, particularly on the criminal onus of proof. But the question for me is whether, following the evidence in the case, the non-existence of the fact (of connection between war service and the fatal disease) is the only rational conclusion on all the material so that the Tribunal had no option but to be satisfied beyond reasonable doubt that there were insufficient grounds for upholding the claim and allowing the appeal. Where death occurs as a result of a disease of unknown aetiology, its connection with war service may be disproved by general evidence. That is a matter for the satisfaction of the Tribunal. But there is a crucial distinction between the Tribunal's being satisfied or not satisfied and this Court's interfering, in an appeal such as this, where the Tribunal expresses itself as not satisfied that all of the relationships, presumably the relevant relationships, have been excluded beyond reasonable doubt.

30. If this case had been heard without the benefit of the decision in O'Brien's case, I should probably have felt obliged to remit the matter to the Tribunal for reconsideration. Until the O'Brien decision was delivered, the formulae being variously expressed in cases where death arose from a disease of unknown aetiology required reference to what was often in fact a two-stage process, though denied in terms as being such. It was suggested that the link must be established according to a 'rational possibility' rather than 'fanciful' or 'fantastic' possibilities. The Court had to see whether there was 'any material' before the Tribunal which pointed to a possibility 'real as against fanciful' of a connection with war service. It was said to be necessary to establish that there was something pointing to a 'real possibility' of an element connecting the war service with the disease. The formulae varied but the effect, in my view, was to resuscitate precisely the two-stage process that Aickin J denied and for which the Act gave no warrant.

31. Since O'Brien's case, I take this approach to be unnecessary. True it is the formal relationships required by section 101 of the Act must be proved. But there was no dispute as to these in the present case. Equally truly, in cases of diseases of unknown aetiology, the claimant is not entitled, as of right, automatically to succeed. It is still a matter for the satisfaction of the Tribunal at the end of the evidence in every case. But equally truly, there being medical evidence pointing only in one direction, it cannot be said that the Repatriation Commission is entitled as of right to succeed. It bears the onus of proof and it is the heavy and unusual onus of establishing a negative proposition and that beyond reasonable doubt. In the present case, the Tribunal came to the conclusion that that onus had not been established. I do not discern in its reasons any error of law, at least as the law has been clarified subsequently in O'Brien's case. The Tribunal adverted to the then principal decision on the relevant sections of the Act. I do not believe it can be said that no tribunal, propertly instructed, could have come to the conclusion it reached but could only have come to the conclusion argued for by the applicant. The Court should not usurp the function of the Tribunal. See Toohey J in Repatriation Commission v Bishop (1983) 40 FCR 306, (1983) 5 ALN No 205, p 16. In examining the Tribunal's reasons for decision, whilst the Court will make sure that the statutory requirements have been complied with, it should not look over closely at the language used by the Tribunal but rather examine its decision as a whole concentrating on matters of substance rather than form. Cf Sheppard J in Repatriation Commission v Bugg (1983) 40 FCR 306, (1983) 5 ALN No 264. The Court will keep in mind the fact that the Tribunal is not bound by technicalities of the law of evidence (see section 107VG of the Act). Due regard should be given to the fact that the Tribunal is both a specialist body and one under the pressure of a heavy workload without all the facilities of the adversary system and the time for reflection, speculation and detailed reasoned decision-making such as is appropriate in a court.
Subordinate grounds of appeal

32. The applicant, whilst conceding that the Court should not be overly concerned with the use of language by administrative tribunals, where the meaning and effect of their decision is clear, complained that the Tribunal had erred in law in failing to comply with the obligations imposed upon it by subsection 107VK(1) of the Act. That subsection, as at the relevant time following amendments to the Act in 1982, provided:

107VK(1) Where, in a proceeding before the Tribunal, the Tribunal
makes a decision, the Tribunal shall -

(a) prepare a written statement of the decision;

(b) either give reasons for the decision orally or include a statement of
the reasons for the decision in the statement of the decision;

(c) file the statement of the decision with the records of the case; and

(d) serve a copy of the statement of the decision, either personally or
by post, on the relevant persons.

(2) Where, in a proceeding before the Tribunal, the Tribunal gives
reasons for a decision orally, a relevant person may, within 28 days
after the day on which a copy of the statement of the decision is
served on the relevant person, request the Tribunal to furnish to
the relevant person a written statement of the reasons for the
decision and the Tribunal shall, within 28 days after receiving the
request, serve such a statement, either personally or by post, on
the relevant person.

(3) A written statement of the reasons for a decision of the
Tribunal shall include any findings on material questions of fact
and shall refer to the evidence or other material on which those
findings were based.

(4) In this section, 'relevant person', in relation to a proceeding,
means -

(a) the applicant or a person authorized by the applicant; or

(b) the Commission.

It was common ground that this duty fell upon the Tribunal in the present matter. The language of subsection 107VK(1) reinforced the earlier equivalent provision and brought the obligation upon the Tribunal into line with a now fairly common obligation in Federal legislation on administrative law. No sanction for non-compliance with the subsection is provided for in the Act. The importance of the facility of reasons has been stressed by the Court both generally (see Re Palmer and Minister for the Capital Territory (1978) 1 ALD 183) and in the context of repatriation appeals (see eg Sheppard J in Bugg's case, above, and Keely and Fitzgerald JJ in O'Brien's case, above, 10).

33. In the present case, the applicant sought to reinforce its complaint about the lack of requisite finding by referring to a line of common law authorities which suggests that where the sole material before a tribunal points in one way, the tribunal should give effect to uncontradicted evidence or at the least explain, by circumstances appearing from the evidence itself or by the fact that the witness is not believed, why it has rejected the testimony. See Holman v Holman (1964) 81 WN (Part 1) (NSW) 375, esp 378; Hardy v Gillette (1976) VR 392, 396; Read v Nerey Nominees Pty Limited (1979) VR 47, 52. It was suggested that one possible exception to this common law principle arose where the evidence, though uncontradicted, was so inherently improbable or incredible or unreasonable that no reasonable man could accept it. Hardy v Gillette was itself a criminal prosecution in which a magistrate had dismissed an information concerning certain cannabis offences saying, in the face of uncontradicted evidence of an analyst, that he could not be satisfied about the nature of the substance in question. Anderson J in the Supreme Court of Victoria ordered that the magistrate's orders of dismissal should be quashed and the informations reheard. The applicant contended that in the present case the only medical evidence before the Tribunal concluded that there was no connection between the war service and the terminal cancer, that such medical evidence was not improbable, incredible or unreasonable, that it had not been doubted nor expressed to be disbelieved, that it had not been contested by competing evidence that might have been preferred by the Tribunal and that accordingly it should have been accepted by the Tribunal or, at the least, the reasons for its rejection should have been specifically stated in accordance with the Holman principle. Indeed, the applicant argued that the failure to state reasons for the rejection of this uncontested medical evidence illustrated the vice of the failure of the Tribunal in the present case to fulfil the obligations imposed upon it under subsection 107VK(1).

34. For a number of reasons, these submissions are rejected. First, there is a crucial distinction, adverted to in the joint judgment of Keely and Fitzgerald JJ in O'Brien's case, between the tender of evidence in support of the proof of a matter required to be established (on the one hand) and the absence of proof satisfying the Tribunal beyond reasonable doubt of a negative proposition (on the other). In the present case, it can be conceded that carcinoma of the stomach is the most common neoplasm of the gastro intestinal tract; that nothing is known of its aetiology; that there is a striking hereditary influence in some families; and that the deceased was in the usual cancer age group. It can also be conceded that the time of lapse between war service and the occurrence of the malignancy made the causal relationship between the fatal disease and the war service unlikely. The statement in the unsigned medical document that the cause of death 'was not due to any occurrence or attributed to or aggravated by war service' was a statement on the ultimate issue which the Tribunal was not bound to accept for it had to make its own determination on that issue. But even accepting the matters upon which the medical testimony was competent to offer its opinion that was not, because of the unusual provisions of paragraph 107VH(2)(a) of the Act, an end of the matter. It still remained for the applicant to satisfy the Tribunal beyond reasonable doubt, and in the face of the admittedly unknown aetiology of the disease, that there was no connection to the war service.

35. In these circumstances, leaving aside the expression of opinion on the ultimate issue which was a matter reserved to the Tribunal, there was no place for the operation of the Holman principle. It was simply not, in the peculiar legislative setting of this case, determinative or conclusive of the Tribunal's satisfaction. That satisfaction, by the terms of the statute, permitted the Tribunal to range beyond the evidence actually proved and to indulge in speculation, admittedly rational speculation, about the possible links to war service that had not been positively excluded by the evidence. In any case, this Tribunal is not bound by technicalities, legal forms or rules of evidence. Its charter is to act 'according to substantial justice and the merits and all the circumstances of the case'.

36. Whilst it is true that there are unsatisfactory features in the reasons for decision of the Tribunal, I am not inclined to go over those reasons, at leisure, with a fine tooth comb, bearing in mind the considerations stated above applicable in the case of administrative tribunals such as this. The duty of the Tribunal is to expose 'a satisfactory process of reasoning which led' to its conclusion (Cf Keely and Fitzgerald JJ in O'Brien's case, p 11). In the same decision it is suggested that 'at least when a claim to a pension is rejected', failure to comply adequately with the obligation to give reasons may itself constitute an error of law. I would not myself draw a distinction between cases where the claim to a pension is rejected or accepted. The Court, like the statute, must be even-handed in this regard. The beneficial provision as to the statement of reasons, reference to evidence and finding of material facts is an important reform that must be upheld by decisions of the Court. But in the present case it is my view that the statutory provisions have been adequately complied with, at least to the extent that no appealable error has been established. Certainly, the processes of the reasoning of the Tribunal, right or wrong, are perfectly plain. The applicant apparently wished for more detailed comment upon, criticism of or distinction from the evidence of its medical expert. But that was not necessary in the circumstances brought about by the unusual obligation on the applicant to prove a negative proposition imposed by paragraph 107VH(2)(a) of the Act. The Tribunal, comprising experienced members some at least of whom must by statute be themselves veterans, was entitled to bring it common sense and experience and at least general knowledge from other cases to bear upon the determination of the instant appeal. Though it would certainly have been open, on the evidence, for the Tribunal to have been satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim, it was equally open to it to conclude that the applicant had failed to satisfy it on the requisite standard that there were insufficient grounds for granting the claim and allowing the appeal. In the latter circumstance, the Tribunal was obliged to follow the statutory instruction and to grant the claim and allow the appeal. This it did. I do not believe that this Court should interfere, limited as it is to a review function on a question of law.
Issues of Public Policy

37. If it is complained that the result of this conclusion about the Act is that a case is determined in favour of the widow where there was no positive medical evidence at all to support a link between the cause of death and war service, the answers may be two. Indeed, they have already been foreshadowed. Each concerns an important matter of public policy. The first is that the Parliament, by a deliberate process of successive legislative changes, described above, has adopted a peculiar and, so far as I am aware, unique approach to the establishment of entitlements to benefits in cases such as this. Formal matters being proved, a very heavy burden is then placed upon the Commonwealth authorities to disqualify the claimant from a presumed entitlement to succeed. At least at the level of the Tribunal there is an instruction from the legislature to uphold the claim, unless the Commonwealth authority can satisfy the Tribunal beyond reasonable doubt that there are insufficient grounds for granting the claim. In a case of, say, cosmetic surgery having no conceivable connection with war service, the requisite disproof will be perfectly possible. In the case of diseases of unknown aetiology, the Act might be thought by the Commonwealth authorities to impose upon them a burden that will usually be extremely difficult to discharge. But the answer to that complaint is that the Parliament has adopted its course deliberately following careful independent review and it is a course that the courts should interpret beneficially, as the Parliament intended.

38. The second reason of public policy follows from this first. The veterans and their dependants are an ever-diminishing number of persons in Australia, especially deserving of generous treatment within the law. The costly, time-consuming procedures of appeals and reviews have been referred to a number of times in this Court. If the Act is administered, faithfully to the letter and spirit of the intent evidenced in paragraph 107VH(2)(a) of the Act, a number of claims will be met which could never have been established had the ordinary rules as to the burden and standard of proof obtained. But that may simply mean that public funds are expended upon benefits for veterans and their dependants rather than upon the costly and time-consuming administrative and legal procedures about causation evidenced in so many of these claims before the High Court, this Court, the Administrative Appeals Tribunal and the repatriation bodies. It is the duty of those bodies, as of the Court, to pay heed to the language and intention of paragraph 107VH(2)(a). It has not been shown that the Tribunal failed to do so in the present case.

39. The appeal should be dismissed with costs.
Orders

40. The orders I make are as follows:

1. The appeal is dismissed and the decision of the Tribunal is affirmed.

2. The applicant shall pay to the respondent her costs of and in

connection

with the appeal to be taxed if not agreed upon.