Re Clive William Dredge v the Repatriation Commission [1986] FCA 7 (24 January 1986)

FEDERAL COURT OF AUSTRALIA

Re: CLIVE WILLIAM DREDGE
And: THE REPATRIATION COMMISSION
No. QLD G94 of 1984
Administrative Law - Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.

CATCHWORDS

Administrative Law - claim for war pension - "no evidence" submission fails despite factual errors - whether wrong standard of proof applied.

Repatriation - appeal from Repatriation Review Tribunal - apparent misapplication of standard of proof - matter remitted to Administrative Appeals Tribunal.

Repatriation Act, 1920, s.47, s.107VG, s.107VH, s.107VZZH

HEARING

BRISBANE
24:1:1986

ORDER

THE COURT ORDERED THAT:

The appeal be allowed.

The decision of the Repatriation Review Tribunal be set aside.

The matter be remitted to be heard and decided again, with such further evidence as the parties wish to adduce, by the Administrative Appeals Tribunal.

The respondent pat rhe appellant's taxed costs of and incidental to this appeal and the hearing before the Repatriation Review Tribunal.

NOTE: Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

DECISION

This is an appeal from a decision of the Repatriation Review Tribunal constituted under the Repatriation Act 1920 affirming a decision of the Repatriation Commission refusing the appellant's claim for a war pension.

2. The appeal is brought under s.107VZZH, sub-s. (1) of which allows an appeal to this court "on a question of law...". The section falls into Part IIIC of the Act which was repealed with effect from 1 January 1985 by Act No. 97 of 1984, s.19, but under s. 59 of the 1984 Act the court is empowered to hear and determine the appeal as if Part IIIC had not been repealed; there is, in effect, a proviso to that, namely that orders remitting a case to be heard and decided again, under sub-s.107VZZH(5), are to direct a rehearing by the Administrative Appeals Tribunal.

3. The other critical statutory provisions in issue are ss.47, 107VG and 107VH. For the sake of brevity, I shall not set these provisions out in full, but merely summarize their content. Section 47 has the effect that the Commission, in determining such a claim as this, is not bound by the rules of evidence and must grant the claim unless satisfied, beyond reasonable doubt, that there are insufficient grounds for granting it. Section 107VG, which applies to the Repatriation Review Tribunal, makes the rules of evidence not binding upon it and s.107VH, in its application to this case, has the effect that the Tribunal must set aside the decision, the subject of the review, unless satisfied beyond reasonable doubt that it would have made the same decision.

4. The appellant contended that the Tribunal's conclusion, adverse to him, was not open on the evidence and that it misdirected itself as to the onus of proof in a passage more particularly referred to below. Such a point as the latter may sometimes be considered without any detailed analysis of the facts found, but it is my view that in this case one cannot arrive at a proper conclusion as to whether the Tribunal misdirected itself without considering the facts and reasons as a whole.

5. The appellant served in the Australian Army from 1946 to 1948 and again from 1951 to 1953. During the latter period, he fought as a member of the Third Battalion, Royal Australian Regiment, in the Korean War. During that period of service, he contracted a major and a minor illness. The former was infectious hepatitis, for which he was treated in hospital for some time. The records show that he went into hospital on 20 November 1952 and on 18 December 1952 is recorded as being symptom-free. However, he was not recorded to be fit for duty until 9 January 1953. He then returned to duty until April 1953. The hepatitis did not recur. The minor illness was some dental trouble including gingivitis. He was apparently treated privately for that condition after his discharge from the army in June 1953.

6. The appellant's case is that he has arthritis high in the spine as well as in the shoulders, is unable to work and is therefore entitled to a pension under the Repatriation Act. He says that condition was causally connected with his service in Korea or, more precisely, that it has not been proved not to have been so connected. An initial difficulty, as a matter of common sense, was that the appellant was unable to produce any medical records showing that he suffered from arthritis until many years after he left Korea, that is until 1976. However, he told the Tribunal that he had in fact suffered from arthritis at a time much closer to his war service. The relevant findings as to this early arthritic trouble are to be found in part at p.22 of the Tribunal's reasons:

"He has suffered from arthritic pain since the mid
1950's.

...

As pointed out, it is not in dispute that the
applicant has suffered from severe arthritic pain
since the mid 1950's, and that he was prescribed
the regular use of Aspros by the late Dr. Bennett
in 1956 and has continued that medication since
that date."

At p.24 the Tribunal refers to a letter of Dr. Everingham of 27 May 1983 and says that:

"It accepts as a fact the details as set out in his
report of 27 May 1983 in paragraphs 1, 2 and 3."

The material referred to included the following:

"Dr. Trout's 1/10/81 report does not discount the
fact that in 1956 Dr. Bennet of Muttaburra
prescribed arthritis medication for severe pain
and advised regular use of aspirin which he's used
off and on ever since. Mr. Dredge had to
discontinue it after a stomach haemorrhage and
intravenous infusion some years ago (locum for Dr.
Ross Smith, Rockhampton, St. John's Hospital,
Rockhampton). The arthritis wouldn't be apparent
on discharge.

Although this was the first severe pain (1956) Mr.
Dredge had minor symptoms earlier."

In view of the absence of any documentary evidence to support the assertion that the appellant suffered severe pain from arthritis in 1956 and thereafter, it would, perhaps have been open to the Tribunal to reject that. However, it did not do so. Despite the lack of documentary support, the Tribunal also accepted the appellant's claim that he suffered trouble with his gums. Paragraph 3 of the letter of 27 May 1983 reads as follows:

"During the hepatitis he had a shocking taste in
the mouth, his gums were spongy and he believes
bled a little. On later return to Japan from
Korea he saw a dentist at R.H.U. He told him he
had a vitamin deficiency and should seek
specialized treatment on return to Australia. He
made no reference to this on discharge.

His dentist Jim Finemore, Mayor of Ipswich,
referred him to a Dr. Finemore of Brisbane who cut
back the gums of about five teeth at a time at
several weekly visits to Brisbane, leaving a
dressing over the treated area for a week each
time. When he injected one side, the fluid would
run out the other side of the gum because of the
spongy inflammation."

7. The comment made by the Tribunal that the gingivitis was "temporary and minor" must be read in the light of the specific acceptance of the account of its treatment, just quoted.

8. The Tribunal made no detailed findings as to the nature of the appellant's service in Korea. In a letter to the Tribunal dated 6 March 1983 the appellant said:

"I would ask you also to consider the stress factor
involved in serving in a war zone as an infantry
man in relation to my health problems as described
above. To anyone who has experienced the heavy
work involved in digging bunkers, carting
ammunition etc. whilst under shell fire and aware
of the real presence of snipers, will not need me
to enlarge on the stress factor. Add nightly
patrols, insufficient food (American C rations)
and very little sleep is in the opinion of my
doctor more than enough to constitute stress.
After returning home from hospital in Japan I was
placed in a forward position and I feel this would
have been most detrimental to my rather weakened
system."

The appellant placed other material before the Tribunal enlarging on the "insufficient food" allegation just quoted, but he did not seem to press that when he discussed the matter personally with members of the Tribunal. He rather advanced the suggestion that he could not eat because he had hepatitis. However that may be, the Tribunal found against him on that aspect, holding that it was satisfied that he did not suffer from malnutrition.

9. There was, however, accepted evidence that he became ill as set out above and (although the Tribunal said nothing about it) no reason appears to reject the appellant's case that he had engaged in active service in hard conditions.

10. The question then becomes whether the respondent proved beyond reasonable doubt that the onset of arthritis, which first manifested itself some three years later, was not so related to the appellant's war service as to entitle him to a pension. For present purposes, it seems enough to mention one way in which such a relationship might be found, that is by finding that the arthritis was "contributed to in any material degree...by the conditions of his war service": para.101(2)(a) of the Repatriation Act 1920.

11. On the face of it, the respondent's task in attempting to exclude beyond reasonable doubt the existence of the necessary connection between the appellant's war service and the arthritis from which he began to suffer a few years later might seem a formidable one. For the purposes of determining whether it was open to the Tribunal to hold that the respondent had adduced the necessary proof, it is necessary to mention in some detail what appear to have been the principal circumstances relied upon by the Tribunal.

12. Firstly, the Tribunal was impressed by the fact that a Medical Board, on 16 June 1953, found the appellant to be fit with full and painless movements of the joints. This was undoubtedly a matter the Tribunal was entitled to take into account, although it could not in itself have been determinative of the issue.

13. The second, and perhaps most important, element of the respondent's case which brought it success before the Tribunal was the opinion of a Dr. Leslie, described as a rheumatologist, and expressed in two hand written documents, the first which I quote in full:

"I don't believe there is a connection between the
hepatitis and long term joint degeneration and
think it unlikely that the malnutrition during war
service would be a major factor in later
development of 'degenerative osteoarthritis'.
Other factors such as genetic make-up, daily
stresses, particularly physical work are likely to
be far more important in this case."

This opinion must needs be considered in the light of the fact that the Tribunal found that the appellant did not suffer from malnutrition. However, if the matter had been taken no further, it is a little hard to see how the Tribunal could, on the basis of Dr. Leslie's first opinion, have found in favour of the respondent. One of the two "other factors" he mentioned, namely "daily stresses particularly physical work" had been associated with the appellant's Korean service. Further, Dr. Leslie's opinion appears to be concerned with weighing relative likelihoods and not with the question the statute poses.

14. The second opinion advanced by Dr. Leslie may be summarised as follows. Dr. Leslie knew of no scientific study linking hepatitis with the appellant's arthritic condition. He did not think malnutrition caused it. He had not observed a higher incidence of osteoarthritis of the type suffered by the appellant in veterans who had spent four years as prisoners of the Japanese. The effect of these views is further discussed below.

15. Thirdly, the Tribunal appears to have relied upon X-ray and orthopaedic findings of Drs. Gillogley and McClymont respectively. In my respectful opinion, the reports of those doctors were, on the critical issue, neutral. Neither expressed a view as to the cause of the deterioration in the appellant's joints. All they said was that the deterioration was there.

16. Fourthly, the Tribunal relied upon opinions of departmental medical officers of 28 May 1980 and 1 October 1981. Reliance on the former of these appears to be hard to square with the Tribunal's acceptance that the appellant suffered from arthritic pain from 1956. There is no mention in the analysis of the facts made by the relevant doctor (whose name appears to be unknown) of the date of onset of the arthritis and he has advanced his opinion on the basis that the disease first became manifest in middle age. On the Tribunal's findings, he first suffered from it before he was thirty. The report relies upon the notion that the condition of the spine was consistent with the age of the appellant and was, in my respectful opinion, of little help once the early age of onset was accepted. The second report was that of a Dr. J. Trout. That again, although not quite so obviously, relies upon the assumption that the condition first occurred in a significant way many years after the war service. Dr. Trout described the incapacities as "relatively recent problems", which is correct only in the sense that the trouble had only recently become disabling. It is not easy to follow why the Tribunal relied so much upon these views when it had, by finding that arthritic pain came on in 1956 and continued thereafter, contradicted the bases of them.

17. To return to Dr. Leslie's opinions, it is notable that there is not to be found in them any precise, or even general, ascription of a cause of the appellant's ailment. In Repatriation Commission v. Bishop (1983) 48 ALR 461 at 469, Toohey J. held in effect that inability to identify the cause of a particular disease does not necessarily require a conclusion favourable to the veteran suffering from the disease. The correctness of that view was accepted by the Full Court in Repatriation Commission v. O'Brien (1984) 1 FCR 472 at 488, but I am troubled by the circumstance that Dr. Leslie nowhere appears unequivocably to say that, without doubt, he is of the opinion that the appellant's war service did not contribute to his arthritic condition, signs of which first appeared a few years later. It should be added that Dr. Leslie makes no reference to the appellant's assertion, accepted by the Tribunal, that the arthritis first became manifest in 1956.

18. Nevertheless, on the whole, I find myself unable to arrive at the conclusion that it was not open to the Tribunal, on the evidence, to find in favour of the respondent. Whether I would myself have done so is not the question. It is true that there was some evidence tending against the opinion of Dr. Leslie, consisting principally in a transcript of a radio interview with a Professor Brookes. However, I do not think that as a matter of law the Tribunal was obliged to accept the rather generally expressed opinions in that interview or treat them as destructive of Dr. Leslie's opinion. In O'Brien's case (1985) 58 A.L.R. 119 at 128, the leading judgment said that:

"It remains the duty of the Tribunal to decide
questions of credibility even where the witnesses
who are in conflict are expert witnesses, for
example, where a challenge is made to the standing
or expertise of the expert in question or when the
basis of the expert's opinion is destroyed in
cross-examination."

Presumably, the same duty exists even when the witnesses who may be thought to be in conflict are not called. Whether or not that is so, it appears to me to be the case that (as was submitted by counsel for the respondent) it is possible to reconcile the views of the two rheumatologists. In particular, Professor Brookes' agree, statement that there is a well known association between hepatitis and arthritis was not necessarily inconsistent with the view of Dr. Leslie on that subject; that was, in substance, that hepatitis does not produce long-term joint damage, although it can produce an acute arthritis which gets better by itself.

19. It need hardly be reiterated that, on the views expressed above, the Tribunal dealt with factual questions in a way with which I cannot agree, in that it apparently thought the opinions of Drs. Gillogley and McClymont threw light on the question of the cause of the appellant's ailments and in that it failed to appreciate that the opinions of the departmental medical officers were affected by its finding as to the date of onset of the condition. However, although the occurrence of these factual errors is relevant in determining the "no evidence" point, they do not in themselves give the appellant any rights in an appeal of this sort.

20. That leaves for consideration the appellant's second point, which was that there is a passage in the reasons which shows the Tribunal did not apply the right onus or the right standard of proof. It is as follows:

"There is no evidence before the Tribunal to compel
it to a finding that the spondylitic and
osteoarthritic changes in this member's spine and
shoulders are other than the result of normal
degenerative changes and wear and tear."

Counsel for the respondent did not attempt to suggest that the expressions used correctly reflect the law and they plainly do not. His argument was that, reading the reasons as a whole, the Tribunal showed itself to be properly seized of the legal issues. In the very next sentence, indeed, there is reference to satisfaction beyond reasonable doubt that the condition "has arisen and has progressed uninfluenced by any of the conditions of his eligible periods of service". A rather similar problem confronted the High Court in Repatriation Commission v. Law [1981] HCA 57; (1981) 147 CLR 635. There the Tribunal concluded with a finding in express terms that used the words of s.107VH(2)(a) of the Repatriation Act, but the reasons were held to "demonstrate a misunderstanding of the operation of that provision": p.646. Of the passages quoted by Aickin J. to illustrate the existence of that misunderstanding, the most striking is the following:

"However, the Tribunal is not convinced that these
conditions were the direct cause of prisoners of
war in general, and Mr. Law in particular, taking
up smoking."

That is similar to, but perhaps not quite as egregiously wrong as, the Tribunal's mode of expression here.

21. Authorities are to be found in which there are exhortations against too strict an approach to the language used by administrative tribunals: see Repatriation Commission v. Reid (1984) 54 ALR 157 at 164. In apparent contrast, there is the approach of the majority of the Full Court in O'Brien v. Repatriation Commission (1984) 1 FCR 472 at 485, 486.

22. Particularly when considering an alleged connection, between a disability and war service, of a kind which it regards as rather fanciful, an administrative body may tend to slip into the use of language which is irreconcilable with the statutory test. Indeed, that tendency is not confined to such bodies. The question before me, one which has caused me some difficulty, is whether the passage complained of by the appellant is merely a verbal slip or truly reflects a failure by the Tribunal consistently to use in favour of the appellant the strict test the law prescribes. In reaching a conclusion on that point, it appears to me right to take into account in favour of the appellant the lack of rigor in the Tribunal's treatment of the facts. The strong reliance placed, despite the findings made, on the departmental officers' opinions, makes it hard to accept that the Tribunal kept the statutory test firmly in mind when arriving at its conclusions.

23. In the end, and not without some doubt, I have come to a conclusion analogous to that reached by Philp J. in the Queensland Full Court in Mahoney v. Fielding; Ex.Parte Fielding (1959) QdR 479 at 481, in which his Honour said of a court which expressed itself in a way suggestive of misapplication of the rules as to the standard of proof:

"I find it difficult to believe that the magistrate
meant what he said, but we must assume that he
did."

Although it strains credulity that the Tribunal really thought that the question was whether there was evidence to "compel it to a finding" in favour of the appellant, it appears to me that in this case the appellant is entitled to have the Tribunal taken literally.

24. In the result then, the appeal must be allowed and the matter remitted. By reason of the amendment referred to above, it must be reheard by the Administrative Appeals Tribunal. The respondent must pay the costs.