Re Dorothy May Branson v Repatriation Commission [1991] FCA 459; (1991) 23 ALD 600 (30 September 1991)

FEDERAL COURT OF AUSTRALIA

Re: DOROTHY MAY BRANSON
And: REPATRIATION COMMISSION
No. S G109 of 1990
FED No. 596
Administrative Law
[1991] FCA 459; (1991) 23 ALD 600

COURT

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
O'Loughlin J.(1)

CATCHWORDS

Administrative Law - Sec.120 of the Veterans' Entitlements Act 1986 (Cth) - whether veteran's death was war-caused - Tribunal's finding of no reasonable hypothesis connecting death with the particular service rendered by the veteran - Tribunal's reasons for its determination inadequate - case remitted to Tribunal to be heard and decided again.

HEARING

ADELAIDE
30:9:1991

Counsel for the Applicant : Mr G.D. Hemsley

Solicitors for the Applicant : White Berman and Co

Counsel for the Respondent : Mr A. Robertson

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The decision of the Administrative Appeals Tribunal of 13 August 1990 be set aside.

The case be remitted to the Administrative Appeals Tribunal to be heard and decided again in accordance with such further directions as this Court may give from time to time.

The respondent pay the applicant's costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

Colin Walter Branson ("the veteran") died on 5 January, 1962 at the age of 43. He had served in the Australian Army from 1940 to 1943 with operational service outside Australia. He was discharged in 1943, medically unfit, because of an injury to his left knee. Although he suffered that injury as a result of a fall from a horse prior to his enlistment, he applied for and was granted a disability pension (assessed at 20%) in 1954 because of his injured knee.

2. Death resulted from a self-inflicted gun-shot wound. His widow, the applicant, lodged a claim for a War Widow's pension, but it was rejected on 21 August 1963 by the War Pensions Entitlement Appeal Tribunal. There the matter rested for 24 years until 1987 when it was unsuccessfully revived. On 6 April 1987, the Repatriation Commission ("the respondent") refused to accept that the veteran's death was war-caused and on 7 March 1988 the Veterans' Review Board affirmed that decision. The applicant then sought from the Administrative Appeals Tribunal ("the Tribunal") a review of the decision of the Board - but again, she was unsuccessful; on 13 August 1990 the Tribunal affirmed the decision under review. The Tribunal came to the conclusion that the material before it did not raise a reasonable hypothesis as to a causal connection between the veteran's war service and his death. Mrs Branson now appeals to this Court from the decision of the Tribunal pursuant to the provisions of s.44 of the Administrative Appeals Tribunal Act, 1975 (Cth) ("the AAT Act") claiming that the Tribunal erred in law in arriving at its decision.

3. At the core of this matter is the Tribunal's alleged failure to disclose adequately its reasoning process that led to its decision; this alleged failure, in turn, calls into consideration the provisions of sub-s.120(1) and (3) of the Veterans' Entitlements Act (Cth) ("the Act") and necessitates an assessment of the manner in which the Tribunal dealt with the concept of the "reasonable hypothesis" that is referred to in sub-s.(3). The provisions of those two sub-sections are as follows:-

"120. (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.
(2) ...
(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."

4. I do not understand there to be any dispute about the nature of the claim; it was made under Part II of the Act and it was for a pension in respect of the death of a veteran; the claim also related to the operational service rendered by that veteran.

5. Certain facts relating to the personal and military history of the veteran were not in dispute and can be briefly stated. He enlisted in the A.I.F. on 31 May 1940. In October 1941 he was taken on strength with the 2/27 Bn and saw brief service in the Syrian campaign. He returned to Australia on 25 March 1942 and his medical discharge, for the reasons already given, was effected on 24 December 1943. Following his discharge, the veteran settled in McLaren Vale, South Australia, working his late father's farm on a share-farming arrangement with his brother. He and the applicant married on 15 February 1947; they had four children. They stayed on the farm for some years but eventually moved to the City where the veteran worked with the Brighton council until his death in 1962.

6. Paragraph 6 of the Tribunal's reasons commenced with the words "I find the following facts...". Thereafter, there are numerous references to items of family and medical information up to and including paragraph 20 of the reasons. But within those paragraphs there are statements such as "the applicant stated in her evidence ...", and "the applicant's eldest daughter... stated in her evidence...". Expressions such as those usually mean that the trier of fact is in the process of summarising relevant passages of evidence as a prelude to stating his findings of fact. Mere reference to passages from a witness's evidence, without more, can leave it unclear whether the Tribunal intended all the factual information in those paragraphs to be read as findings of fact; for example there is no express statement that the Tribunal accepted or rejected the accuracy and veracity of the evidence of the applicant and her daughter. But in this case, having regard to the whole of the reasons of the Tribunal, the probabilities are that the summaries of the evidence of the witnesses were intended to represent acceptance of that evidence with conversions, where appropriate, to findings of fact; in any event, that is the premise upon which I have deemed it appropriate to proceed. The following further facts are therefore extrapolated from paragraphs 6 to 20 of the Tribunal's reasons.

7. The veteran was a quiet and moody man who suffered regular bouts of depression during his married life. He never spoke of his war experiences and he would not permit the children to watch war films on television. He had difficulty sleeping at times when he would "squirm, groan, mutter and call out". In addition, his left knee troubled him on occasions and "he often experienced acute pain". On such occasions he would have "a couple of extra drinks 'to forget everything'". The events immediately preceding his death were summarised in paragraph 17 of the Tribunal's reasons in the following way:-

"The applicant stated that on the evening of his death the veteran
went to the hotel after work and returned home as usual at about
6.15 pm. He walked inside and greeted her then walked into the
lounge room where the children were watching television and gave
them their treat. He consumed a bottle of wine in the back yard
while she was preparing the meal. He then started to walk about the
house although the applicant stated that she was uncertain of his
exact movements. She said that when the veteran came out of their
bedroom and passed through the kitchen into the yard he was
muttering, but she did not know what he was muttering about. The
next thing she heard was a gun report (sic) and when she went
outside she found him lying in the yard."

8. I leave these historical and background areas and turn to the psychiatric evidence. Two psychiatrists gave evidence before the Tribunal. Dr McFarlane, who was called by the applicant, was the senior lecturer in Psychiatry and Acting Head of the Department of Psychiatry at Flinders Medical Centre. He has had a special interest in the field of post-traumatic stress disorder since 1983 as a result of his work with victims of the dreadful Ash Wednesday bushfires; he has published widely in that area in both Australian and International Journals. Dr Ben-Tovim was the Director of the Department of Psychiatry at the Repatriation General Hospital, the Director of Mental Health Services for South Australia and the Chief Specialist in Psychiatry in the South Australian Health Commission. The majority of his work was concerned with psychiatric sequelae in veterans of the Second World War. He also was very experienced in the field of post-traumatic stress disorders.

9. Neither of the psychiatrists had ever examined the veteran. Their first involvement in the matter was consequential upon its re-activation in 1987. However, after studying the available material, they each felt able to express views (which were conflicting) about issues that were germane to the veteran's death. Dr McFarlane claimed that there was a hypothesis connecting the veteran's death with the circumstances of his particular service. In a written report dated 16 July 1987 he had said:

"In particular, it is possible that Mr Branson had a post-traumatic
stress disorder resulting from his war service which led to both his
alcohol consumption and his suicide." (p 186)

10. In a second report dated 10 January 1989 Dr McFarlane strengthened his views when he said:

"My central hypothesis is based on the fact that this man satisfied
the diagnostic criteria for post-traumatic stress disorder." (p 205)

11. Dr Ben-Tovim was retained by the respondent to give his opinion on the veteran's health and the circumstances of his death. In his written report dated 23 September 1988 Dr Ben-Tovim commenced by saying:-

"I have reviewed Mr Branson's notes in detail, and have also read Dr
McFarlane's letter carefully."
(I take this to be the first report dated 16 July 1987). "It seems
to me that there are three points at issue
a) Did Mr Branson ever have a post-traumatic stress disorder?
b) Did Mr Branson suffer from a post-traumatic stress disorder
at the time of his suicide?
c) Was there a relationship between the suicide and any
war-related condition?" (p 221)

12. After some general observations about the difficulties involved in recognising the existence of a post-traumatic stress disorder, Dr Ben-Tovim then made the following observation:-

"It is not possible to adduce the existence of a specific
psychiatric disorder from the available information on the veteran,
which is both slight, at second-hand, and of a period long passed."

He concluded his report by addressing the question:-

"Was the Veteran's suicide related to the post-traumatic stress
disorder."

His answer was as follows:-

"Here the chain of supposition becomes extremely weak - there is
nothing about the suicide to link it with post-traumatic disorder,
and in my view at this distance from the event speculation becomes
indistinguishable from guesswork." (p 222)

13. This conclusion obviously inflamed Dr McFarlane for it brought this strong response in his second report:-

"The next question is to whether there was a link between Mr
Branson's post-traumatic stress disorder and his suicide? Dr
Ben-Tovim's statement that there is nothing about the suicide to
link it with post-traumatic stress disorder does not take account of
the obvious link between psychiatric illness and suicide which is
outlined in any basic text book of psychiatry and forms the basis of
the Mental Health Act's detection criteria. Almost universally
there is an increased incidence of suicide amongst people suffering
from psychiatric disorders. To my knowledge this has not been
specifically examined in post-traumatic stress disorder but an
increased incidence of suicide has been demonstrated in populations
with other minor psychiatric disorders. Furthermore, if the board
accepts the link between Mr Branson's alcoholism and his suicide the
evidence is compelling. It is well documented that alcoholics have
a much greater risk of killing themselves." (p 207)

14. In fairness to Dr Ben-Tovim, it was not that he had acknowledged that the veteran had a specific psychiatric disorder and then said that there was "nothing about the suicide to link it with post-traumatic stress disorder". Rather, he had said that it was "not possible to adduce the existence of a specific psychiatric disorder". That, as I read his report, was why he disclaimed the existence of any link.

15. It is also of some interest that the question of the veteran's addiction to alcohol was emphasised by Dr McFarlane in contra-distinction to the evidence of the applicant and her daughter - both of whom sought to play down this subject. A fact-finding Tribunal could have well challenged his right to make any use of the veteran's alcohol consumption if it had seen fit so to do. However that it not a matter for this Court to resolve.

16. In his evidence before the Tribunal Dr Ben-Tovim remained resolute. As the Tribunal stated in its reasons:-

"... Dr Ben-Tovim stated again that it was not possible to adduce
the presence of a post-traumatic stress disorder. He stated that
the dilemma was that the information available was very slight and,
in his opinion, Dr McFarlane's attempts to link the evidence to the
presence or absence of post-traumatic stress disorder required a
great deal of speculation and hypothesizing." (p 235)

17. Having made its summaries of the evidence of the two psychiatrists, the Tribunal stated the proposition that was being advanced on behalf of the applicant. It was to this effect: there was a reasonable hypothesis that the presence of a post-traumatic stress disorder, which was caused by his war-service, caused the veteran's death. The Tribunal thereupon proceeded to state its conclusions that it was "satisfied" that the veteran's "eligible war service ... would have been stressful" and that he "suffered depressive moods". It then said in paragraph 38:-

"The Tribunal finds that, having regard to the symptoms
described by the applicant, the veteran suffered with
post-traumatic stress disorder".
(p 238)

This would appear to constitute a sound rejection of the opinion of Dr Ben-Tovim on this subject in favour of that of Dr McFarlane.

18. The Tribunal then went on to consider the provisions of s.120 of the Act by directing itself on the subject of a "reasonable hypothesis". Its statutory responsibility was to consider the whole of the material before it; if it was thereafter of the opinion that such material did not raise a reasonable hypothesis connecting the psychiatric illness and death with the circumstances of the particular service rendered by the veteran, the Tribunal would be satisfied beyond reasonable doubt that there was no sufficient ground for determining that death was war-caused. If, having performed that exercise, it was unable to form that opinion, the result must be a determination that death was war-caused. In the process of considering this issue the Tribunal said that it took "into account the evidence as a whole" (which I take to mean all material that was properly before the Tribunal) and then said:-

"The Tribunal after considering the medical evidence,
prefers that of Dr Ben-Tovim". (Emphasis added)

The use of the word "that" was confusing; if it was intended to relate back to all of Dr Ben-Tovim's evidence (as would be its literal meaning) then its use contradicts the Tribunal's earlier finding which, in my opinion, amounted to a rejection of Dr Ben-Tovim's views about the claimed existence of a post-traumatic stress disorder. It must therefore be taken to mean that the Tribunal was saying that it accepted so much of the evidence of Dr Ben-Tovim as refuted the linking of the veteran's death to his war service.

19. In East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517 the Full Court explained the meaning of "reasonable hypothesis" in this way:

"The adoption of Brennan J's notion of a reasonable hypothesis
meant that Parliament was requiring something by way of a causal
link, but which fell short of proof of the link - even prima facie
- as a fact. The meaning of the phrase 'reasonable hypothesis'
was felicitously explained by a Veterans' Review Board in Stacey
(unreported Nos V83/0396, V84/0821 and V28/072, 26 June 1985);
words quoted by the Administrative Appeals Tribunal in Re Dell and
Repatriation Commission (1986) 5 AAR 253 at 254-255:
'A hypothesis may be conveniently defined as: "proposition
made as basis for reasoning, without assumption of its
truth; supposition made as starting point for further
investigation from known facts; groundless assumption": The
Concise Oxford Dictionary.
...
The addition of the word "reasonable" would however seem to
imply that what is required is more than a mere hypothesis.
In the opinion of the Board, to be reasonable, a hypothesis
must possess some degree of acceptability or credibility -
it must not be obviously fanciful, impossible, incredible or
not tenable or too remote or too tenuous. For a reasonable
hypothesis to be "raised" by material before the Board, we
think it must find some support in that material - that is,
the material must point to, and not merely leave open, a
hypothesis as a reasonable hypothesis. At the same time,
however, a hypothesis may be reasonable without having been
proved (either on the balance of probability or beyond
reasonable doubt) to be correct as a matter of fact. Were
it otherwise, it would no longer be a hypothesis but would
have been elevated to some higher status. Accordingly a
connection asserted by a hypothesis to exist between death
or incapacity and service may still be reasonable even
though theoretical, and it may be theoretical in either or
both of at least two senses: by postulating a known medical
fact but in circumstances not known to have definitely
existed in the instant case; or by postulating a medical
principle which science is not yet able to definitely prove
but is unable to describe as unreasonable.'
We agree with this analysis. A reasonable hypothesis requires
more than a possibility, not fanciful or unreal, consistent with
the known facts. It is an hypothesis pointed to by the facts,
even though not proved upon the balance of probabilities."
(pp 532-3)

In their separate judgments in Webb v Repatriation Commission (1988) 19 FCR 139 both Davies J. and Foster J., as members of the Full Court, endorsed that statement.

20. If the circumstances were appropriate, the Tribunal could have concluded that the hypothesis advanced in the interests of the applicant was not "grounded in facts" that were before the Tribunal. As Hill J. put it in Gilbert v Repatriation Commission (1989) 86 ALR 713 at p 719:-

"Thus S.120 is not concerned with abstract theories or hypotheses
but is concerned with hypotheses which are grounded in fact. In
other words, there will be a need for some evidence before the
tribunal to convert an hypothesis from being abstract to one
having relevance to the facts of the particular case. In the
absence of such facts which are a condition precedent to the
hypothesis, the hypothesis even if it may be said to have been
raised at all will certainly not show any relevant connection
between the injury, disease or death and the war services and for
that reason would not be a reasonable hypothesis."

21. Although there are 8 separate grounds of appeal, they are closely intertwined; they either deal with various aspects of the "reasonable hypothesis" concept or the perceived failure on the part of the Tribunal to state adequately its reasons for certain of its conclusions. Fundamental to the applicant's grounds of appeal was, of course, the evidence of Dr McFarlane. It was said that the opinions expressed by Dr McFarlane were sufficient to raise a reasonable hypothesis connecting the veteran's death with his war service and that the fact that another expert had a contrary view (which was "preferred" by the Tribunal) was of no consequence unless the contrary view was of such a character as would cause a Tribunal of fact to be satisfied beyond reasonable doubt that there was no sufficient ground for making a determination that the death of the veteran was war-caused; it was argued that the contrary view of Dr Ben-Tovim was not of such a character.

22. The Tribunal quoted the provisions of sub-s.120(1) and (3) in its reasons and in paragraph 38 it set itself the task of considering "whether or not there is a reasonable hypothesis linking those conditions to the veteran's particular service". This would suggest, on the one hand, that the Tribunal was fully cognisant of the role that it had to play. On the other hand, the language used by the Tribunal in the next paragraph of its reasons is quite disturbing:-

"39. In so doing the Tribunal takes into account the evidence as
a whole and in particular that of the two psychiatrists, Doctors
McFarlane and Ben-Tovim. The Tribunal, after considering the
medical evidence, prefers that of Dr Ben-Tovim. The Tribunal
accepts and finds that the veteran's acceptance of the pain and
discomfort in his left knee, as explained by Dr Ben-Tovim, could
have been a character trait of the veteran. The Tribunal further
accepts and finds that the veteran's depressive moods fell within
the normal range of human behaviour and that the death of the
veteran's sister and brother-in-law and the partaking of alcoholic
drinks were all features of the veteran's death. For these
reasons the claim that a reasonable hypothesis exists must fail."
(Emphasis added)

23. In the particular circumstances of this case, the realities of the situation called for the Tribunal to weigh up the evidence of each doctor. The evidence of Dr McFarlane favoured the existence of the requisite hypothesis; Dr Ben-Tovim positively rejected it. What is and what is not a reasonable hypothesis is a question of fact - and that had to be decided by the Tribunal. But it was not a case of "preferring" the evidence of one to the other. Any such notion of preference was put firmly to rest by Aickin J. in Repatriation Commission v Law [1981] HCA 57; (1981) 36 ALR 411 at p 414 where his Honour said:-

"Nevertheless, it is 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."

24. The language that the Tribunal used in paragraph 39 of its determination leaves disturbing gaps in the reasoning process. Having stated its preference for the evidence of Dr Ben-Tovim, it referred to four areas of that evidence: his interpretation of the pain in the left knee; the veteran's depressive moods; the effect on the veteran of the deaths of his sister and her husband; and, finally, the veteran's drinking habits. It would seem that those areas of evidence represented the Tribunal's reasons for concluding that "the claim that a reasonable hypothesis exists must fail". But, with respect, that was not the task that the Tribunal had to undertake. The reasoning process of the Tribunal should have been expressed in clear terms that led to and justified the conclusion that a reasonable hypothesis did not exist. This called for the positive rejection of Dr McFarlane's evidence on this subject - perhaps because it was inherently implausible, perhaps because it was not grounded in facts, or perhaps because it was overborne by the strength and conviction of Dr Ben-Tovim's evidence; they were matters for the Tribunal to address. If it was then appropriate, that rejection should have been followed (but was not) by a statement that the Tribunal was satisfied beyond reasonable doubt that there was no sufficient ground for making the determination that the death of the veteran was war-caused.

25. It is not merely the absence of any reference to a state of satisfaction beyond reasonable doubt that concerns me. If that was the only error I would be inclined to overlook it; after all the Tribunal had referred to and quoted the relevant provisions of the legislation in its reasons. But there is more. First, there is the fact that the Tribunal, having seen fit to accept the opinions of Dr McFarlane and to reject those of Dr Ben-Tovim on the question of the existence of a post-traumatic stress disorder, reversed its assessment of their expertise by accepting Dr Ben-Tovim and his rejection of any causal link between war service and psychiatric illness and death. The right to accept and reject aspects of the opinion evidence of the two experts was, of course, a function that was open to the Tribunal; but the exercise of that right in this case, given without reasons, was unusual to say the least. Then there was the exercise of "preferring" the evidence of one to the other; that suggests the adoption of the conventional judicial role in civil proceedings and the determination of a matter by recourse to the balance of probabilities. For example, to say that the veteran's acceptance of pain "could have been" a character trait leaves open other probabilities, possibilities and hypotheses. If the evidence justified treating the veteran's reaction to the pain in his left knee as a matter of importance (and that also was for the Tribunal to resolve) it was insufficient to deal with the subject by saying that "it could have been a character trait". It would have been necessary, in the course of achieving satisfaction beyond reasonable doubt, to explain that the subject of acceptance of pain was not somatic but had been satisfactorily explained away as a character trait. However, it is not for me to say that such a course would have been the appropriate assessment of the evidence; it was for the Tribunal to make all findings of facts and to evaluate any hypotheses that might arise from those facts. In my opinion the Tribunal failed to address this responsibility.

26. It must be remembered that the evidence of Dr McFarlane could arguably have been used to ground the required reasonable hypothesis. The Tribunal did not say that it disbelieved or rejected this section of his evidence - it did not describe his opinion as fanciful; it just did not address it at all. Dr McFarlane's evidence had to be evaluated. It is true that it could not be taken at face value; an expert's theory, without more, will not often be sufficient. But on the other hand, a clearly expressed and logically reasoned opinion of an experienced qualified expert can, on occasions, be sufficient (even in the face of opposition from another equally experienced qualified expert) to raise a reasonable hypothesis; that will be because there was evidence that pointed to a causal link that has been suggested by the particular facts: Hamling v Repatriation Commission [1989] FCA 510; (1989) 11 AAR 131. The causal link need not be strong; a partial or indirect link has been described as sufficient - but the link must exist. The Tribunal had to reject Dr McFarlane's evidence before it was free to conclude that no reasonable hypothesis existed. But to say of two competing opinions that one is preferred is not a rejection of the other - a preference for one may still leave the other capable of being classified as a reasonable hypothesis.

27. The Tribunal's reasons for coming to its decision including "its findings on material questions of fact and a reference to the evidence or other material on which those findings were based" (sub-s.43(2) and (2B) of the AAT Act) should have been, but were not, apparent from a perusal of its written determination. In Housing Commission of New South Wales v Tatmar Pastoral Co. Pty. Ltd. (1983) 3 NSWLR 378 Hutley J.A. whilst observing at p 381 that "(t)he choice between conflicting experts may have to be a matter of judgment, not of detailed reasoning", nevertheless pointed out that rights of appeal are not to be nullified through a failure to give any reason or as a consequence of giving only nominal reasons.

28. It is necessary to keep in mind that the Tribunal was the judge of the facts and that its decision is not to be set aside unless it is shown that there has been an error of law. Thus in Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1; (1986) 1 AC 484 at 518, Lord Brightman, with whom the other members of the House agreed, said:

"Where the existence or non-existence of a fact is left to
the judgment and discretion of a public body and that fact
involves a broad spectrum ranging from the obvious to the
debatable to the just conceivable, it is the duty of the
court to leave the decision of that fact to the public body
to whom Parliament has entrusted the decision-making power
save in a case where it is obvious that the public body,
consciously or unconsciously, are acting perversely."

See also Apthorpe v Repatriation Commission (1987-88) 77 ALR 42 at pp 53-4 and Hooke v Repatriation Commission (an unreported decision of the Full Court delivered on 11 February 1988).

29. I am also conscious of the many authorities of this Court that warn against an over-zealous exercise in reviewing the language used by a Tribunal: e.g. Lennell v Repatriation Commission (1982) 4 ALN No29: see also Bisley Investment Corporation Ltd. v Australian Broadcasting Tribunal (1982) 59 FLR 132 at p 157 per Sheppard J., Federal Commissioner of Taxation v Cainero (1988) 88 ATC 4427 at p 4432 per Foster J. and Politis v Federal Commissioner of Taxation (1988) 88 ATC 5029 at p 5032 per Lockhart J.

30. But this case is one such as that faced by Morling J. in Repatriation Commission v Lowerson (1989) 11 AAR 36 where his Honour said:-

"This is not a case in which, reading the reasons of the
Tribunal as a whole, it can be seen to have applied the
correct test notwithstanding some language in its reasons
which may give rise to some uncertainty as to the precise
test which it applied." (p 41)

31. In my opinion, the Tribunal failed to disclose the reasoning process which led it to its conclusions: Ansett Transport Industries (Operations) Pty. Ltd. v Wraith [1983] FCA 179; (1983) 48 ALR 500 at 507 per Woodward J.

32. Mr Robertson, counsel for the respondent, relied upon Lennell's case and other similar authorities, argued that any impediments in the reasoning process of the Tribunal were not of such significance as would justify this Court interfering. For example, he pointed to the statements contained in paragraph 39 of the reasons emphasising that they were proceeded by and concluded with a reference to the subject of "reasonable hypothesis". Mr Robertson acknowledged that the Tribunal did not state explicitly that there was no reasonable hypothesis linking the four subject matters that were covered by paragraph 39 to war service but, so he said, I should be prepared to regard that as implicit in the words that the Tribunal used. Acceptance of this submission would mean, said Mr Robertson, that there would be no basis upon which the Court could find that there was an error in law in the approach that was taken by the Tribunal.

33. Notwithstanding the caveats to which I have referred, I am compelled to conclude that the written reasons of the Tribunal contain no more than summaries of the relevant evidence of the two experts. Those summaries may well constitute the material which the Tribunal took into account in arriving at its decision but the reasoning processes for the acceptance of one doctor's evidence on one subject and the other doctor's evidence on the other subject is missing.

34. There has been a substantial breach of the Tribunal's duty to state the reasons for its determination - and that is an error of law: Dorman v Riordan (1990) 24 FCR 564 at 573. The magnitude of the error warrants the interference of this Court. At the end of the day I find myself posing these propositions: there was evidence before the Tribunal from Dr McFarlane that supported the requisite hypothesis: there was also evidence before the Tribunal from Dr Ben-Tovim that rejected the hypothesis. The reasons of the Tribunal disclose that it preferred the evidence of Dr Ben-Tovim and that it concluded that "the claim that a reasonable hypothesis exists must fail". The question then is this: why did the Tribunal come to that conclusion? Was it because it rejected Dr McFarlane's evidence (which would have been the correct route) but accidentally omitted to state that fact? Or did it mistake its function and incorrectly resolve the matter because of its preference for Dr Ben-Tovim's opinion. It is not possible to answer these questions. That fact justifies the need to remit the matter; it also explains why I must reject the submission of Mr Hemsley, counsel for the applicant, that I should substitute for the Tribunal's decision the decision which he says ought to have been made. This is not one of those cases where only one obvious decision was open on the material that was before the Tribunal.

35. The decision of the Tribunal is therefore set aside and the case is remitted to the Tribunal to be heard and decided having regard to the contents of these reasons. There is a question of how best these orders might be implemented. I propose therefore to publish these reasons and thereafter to call the matter back on after the parties have had an opportunity to consider their positions. I express no views one way or the other but it occurs to me that the parties should consider, in particular, what orders they might seek about the adducing of evidence on the rehearing. For example would it be necessary for the applicant, her daughter and the orthopaedic surgeon to give evidence again? In turn, the answer to that question might depend on the composition of the Tribunal for the re-hearing but that is a matter for the President to determine, not this Court; I express no views on the subject.