Re Repatriation Commission v Norman Edwin Tuite [1993] FCA 39; (1993) 17 Aar 158 (1993) 39 FCR 540 (1993) 29 ALD 609 (18 February 1993)

FEDERAL COURT OF AUSTRALIA

Re: REPATRIATION COMMISSION
And: NORMAN EDWIN TUITE
No. N G492 of 1992
FED No. 43
Administrative Law Number of pages - 7

[1993] FCA 39; (1993) 17 AAR 158
(1993) 39 FCR 540
(1993) 29 ALD 609

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Burchett(2) and Einfeld(2) JJ.

CATCHWORDS

Administrative Law - Veterans' Affairs) - time for appeal from Administrative Appeals Tribunal - whether runs from "decision in writing" given under s. 43(1) of the Administrative Appeals Tribunal Act - refusal of extension of time to appeal on the ground that there was no arguable point of law - circumstances in which the incidents of camp life were held as a matter of fact to have been a contributing cause of a smoking habit which in turn led to disease so as to satisfy s. 9(1)(b) of the Veterans' Entitlement Act 1986.

Administrative Appeals Tribunal Act 1975, ss. 43 and 44

Veterans' Entitlements Act 1986, ss. 9(1)(b) and 120(4)

Repatriation Commission v. Law (1980) 31 ALR 140

Australian Broadcasting Tribunal v. Bond [1990] HCA 33; (1990) 170 CLR 321

Marshall v. Minister of Pensions (1948) 1 KB 106 at 110

HEARING

SYDNEY, 12 February 1993
18:2:1993

Counsel for the Applicant: Miss R.M. Henderson

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr C.A. Vindin

Solicitors for the Respondent: Veterans Advocacy Service

ORDER

THE COURT ORDERS THAT:
1. Leave to appeal be refused.

2. The applicant, Repatriation Commission, pay the costs of the respondent, to be assessed or taxed upon the same basis as if the application to this court had been an appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

DAVIES J. I have had an opportunity to read, and I agree with, the reasons for judgment prepared by my brothers, Burchett and Einfeld JJ., but I would add a few words of my own.

2. The Judge below, Foster J., who refused to extend the time for leave to appeal from a decision of the Administrative Appeals Tribunal, did so on the ground that the proposed appeal had no reasonable prospect of success, which is to say that there was no arguable ground of appeal. I agree with his Honour.

3. The issue before the Tribunal was whether Mr Tuite's smoking habit, which it was agreed had contributed to the development of his emphysema and gastric ulcer, arose out of or was attributable to his eligible war service. Mr Tuite gave evidence that he enlisted when 24 years of age, that he had not previously smoked and that he commenced smoking within 14 days of entering camp. Mr Tuite gave this evidence, inter alia:-
"Why did you start smoking?---Well, everyone was

smoking and we were getting - we could afford to
buy the cigarettes, off a chap come around in a
truck every day and, I mean, we was all ready to go
to war and we wanted to go, I wanted to go, we was
marching around all the time and that's why I
enlisted, to go. But it was - well, we was doing
nothing, in other words, just walking around,
parading around, marching and lectures.
...
Were you offered cigarettes in the army or did you
just go out and decide you were going to start
smoking and buy a packet?---They offered you
cigarettes."

The Tribunal accepted Mr Tuite's evidence on these points and accepted that Mr Tuite was influenced to commence smoking by the circumstances of camp life and by other servicemen with whom he was encamped. The Tribunal accepted Mr Tuite's evidence that he smoked 20 cigarettes a day at the time of his discharge and inferred that his then addiction to tobacco was a contributory cause of his continuing to smoke after discharge.

4. The Tribunal rejected the submission of Mr M. Castle, the representative for the Repatriation Commission, that Mr Tuite was:-

"Not the usual impressionable youth who, as a
result of peer pressure, commences smoking on
service. Here we have a mature, experienced -
experienced in the ways of the world - and who
whilst on service had a bit of spending money, an
opportunity to smoke cigarettes, bought and
commenced smoking."

5. The Tribunal's approach was correct in law. The question was whether Mr Tuite's emphysema and chronic gastric ulcer "arose out of, or was attributable to," Mr Tuite's eligible war service. See s.9(1)(b) of the Veterans' Entitlements Act 1986 (Cth). It was not put to this Full Court, or to Foster J., that s.9(2) of the Veterans' Entitlements Act limits this provision. The words of s.9(1)(b) require that there be a causal connection between the eligible war service and the disease or injury. That is, the eligible war service must contribute in a causal way to the injury or disease. See Repatriation Commission v. Law (1980) 31 ALR 140 at 150-1.

6. Eligible war service encompasses not only active service but all the incidents of service, such as life in camp. Under s.9(1)(b), but not under ss.9(1)(d) and 9(2), if an injury or disease is claimed to have arisen out of or be attributable to a serviceman's period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred. Denning J. has said that the service "must be a cause as distinct from being part of the circumstances in or on which the cause operates." See Marshall v. Minister of Pensions (1948) 1 KB 106 at 110; W. v. Minister of Pensions (1946) 2 All ER 501 at 502; Minister of Pensions v. Chennell (1947) 1 KB 250 at 256. An illustration of the point may be found in Goward v. Commonwealth [1957] HCA 60; (1957) 97 CLR 355 where Dixon C.J., Williams, Webb and Kitto JJ. held that the location of a camp near a railway line was merely the setting in which an accident had occurred and not a contributing cause. Their Honours said at 364:-

"It is correct no doubt that if the camp had not
been near a railway line and if the deceased had
not been living in the camp the accident would not
have happened. But these are no more than
antecedent conditions which are preliminary to, but
hardly operative causes of, the accident."

7. Of course, causation is primarily an issue of fact. As Mason C.J. said in March v. Stramare (E. and M.H.) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 515:-

"The common law tradition is that what was the
cause of a particular occurrence is a question of
fact which 'must be determined by applying common
sense to the facts of each particular case', in the
words of Lord Reid: Stapley (1953) AC, at p 681.
That proposition is supported by a long line of
authority in the United Kingdom: Leyland Shipping
Co. (1918) AC, at pp 363, 369-370; Admiralty
Commissioners v. S.S. Volute (1922) 1 AC 129, at
p 144; Yorkshire Dale Steamship Co. (1942) AC, at
p 706; Alphacell Ltd. v. Woodward [1972] UKHL 4; (1972) AC 824,
at p 847; McGhee v. National Coal Board (1973) 1
WLR, at pp 5, 11; (1972) 3 All ER, at pp 1011,
1017. It is supported also by this Court's
decision in Fitzgerald v. Penn [1954] HCA 74; (1954) 91 CLR
268.
...
As Dixon C.J., Fullagar and Kitto JJ. remarked in
Fitzgerald v. Penn at p 277 'it is ultimately a
matter of common sense' and (at p 278) '(i)n truth
the conception in question (i.e. causation) is not
susceptible of reduction to a satisfactory
formula."

8. If the circumstances of eligible war service provide an operative cause contributing to the serviceman's injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease.

9. That was the approach adopted by the Tribunal and I see no arguable point of law arising from the Tribunal's reasons for decision, or any failure on the part of the Tribunal to expose its reasoning process or to deal with relevant issues.

10. The Tribunal, having adopted the correct approach to the issue, had arrived at its decision of fact to "its reasonable satisfaction", a term which, under s.120(4) of the Veterans Entitlements Act, enables the Tribunal to take into account the nature of the decision being made. See Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 where Dixon C.J. said:-

"But reasonable satisfaction is not a state of mind
that is attained or established independently of
the nature and consequence of the fact or facts to
be proved."

See also Re Pochi v. Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 40-1. In such a context, the task of counsel for the Repatriation Commission in attempting to enunciate to Foster J. and to this Full Court a question of law in the sense explained by Mason C.J. in Australian Broadcasting Tribunal v. Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-60, was impossible to fulfil. No arguable question of law was enunciated.

11. I agree with the order proposed by Burchett and Einfeld JJ.

BURCHETT and EINFELD JJ. This is a motion for leave to appeal against a decision of a judge of the Court, Foster J., given in respect of an attempted appeal from the Administrative Appeals Tribunal. A challenge to a decision of that Tribunal, although called an appeal by s. 44 of the Administrative Appeals Tribunal Act 1975 ("the Act"), is, of course, an application in the original jurisdiction of the Court. It is an application which must be instituted "not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to (the applicant) or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows": s. 44(2A). What happened in the present matter is that Foster J. held the purported appeal had not been instituted within the specified time, and he refused to allow any further time. If the leave to appeal now sought is granted, the applicant seeks to challenge both the decision that no appeal was instituted within time and also the decision to refuse to allow further time. No question was raised as to whether the leave of this Court is necessary before a challenge can be mounted on the issue of the competence of the application sought to be made to Foster J., and the Court heard full argument on all aspects of the appeal which the applicant desires to bring before the Court.

2. The proceeding in the Administrative Appeals Tribunal related to the respondent's claim to be entitled to a disability pension, under the provisions of the Veterans' Entitlements Act 1986, in respect of conditions of emphysema and gastric ulcer alleged to have resulted from a smoking habit, which was itself alleged to have resulted from war service. The Tribunal, after a hearing, decided in the respondent's favour, giving, as is required by s. 43(1) of the Act, "a decision in writing". The Tribunal delivered its reasons for this decision orally, as is permitted by s. 43(2). Section 43(2A) permits a party to a proceeding, in a case where the Tribunal does not give reasons in writing for its decision, to apply, within 28 days after service of a copy of the decision, for the furnishing by the Tribunal of a statement in writing of its reasons. The respondent so applied, and a statement in writing of the reasons which had been delivered orally was duly furnished to each party.

3. Section 44(2A) provides as follows:

"An appeal by a person under sub-section (1) or (2) shall be
instituted -
(a) not later than the twenty-eighth day after the day on
which a document setting out the terms of the decision
of the Tribunal is furnished to the person or within
such further time as the Federal Court of Australia
(whether before or after the expiration of that day)
allows; and
(b) in such manner as is prescribed by rules of court made
under the Federal Court of Australia Act 1976."

This provision is the foundation of the conclusion reached by Foster J. that no competent appeal was before him. The correctness of that conclusion depends upon whether the "decision in writing" made under s. 43(1) answers the description of "a document setting out the terms of the decision of the Tribunal" within s. 44(2A); if it does, the applicant's attempted appeal was out of time. The applicant's argument is that the document referred to in s. 44(2A) is the "statement in writing of the reasons of the Tribunal" under s. 43(2A), which was furnished much later; if that contention is correct, the applicant's appeal was in time.

4. The applicant's point must be rejected. The language of s. 44(2A) is perfectly clear. It does not measure time from the supply of reasons, but from the furnishing of "a document setting out the terms of the decision of the Tribunal". The decision in writing made under s. 43 is plainly such a document. In the present case, it includes the following:

"For the reasons given orally at the conclusion of the hearing
in this matter the Tribunal decides:
1. That the decision under review so far as it relates to
cervical spondylosis and dermatitis herpetiformis is
AFFIRMED.
2. That part of the decision under review that referred
to emphysema and chronic gastric ulcer is SET ASIDE
and the Tribunal substitutes in lieu thereof its
decision, viz, that the diseases of emphysema and
chronic gastric ulcer are war-caused
AND THAT the applicant is entitled to pension in respect of
incapacity occasioned by the said diseases as and from 13
September 1990.
3. That this matter be remitted to the Repatriation
Commission in order that it might assess the rate of
pension to be paid."

5. Accordingly, the applicant's attempted appeal was not competent, and an extension of time was required. We turn to the questions raised by the refusal of Foster J. to allow an extension of time. His Honour took the view that the appeal from the Administrative Appeals Tribunal raised no arguable point of law, so that the interlocutory order sought would be futile. Section 44(1) limits any such appeal to "a question of law".

6. There was no dispute before the Tribunal that the respondent suffered from conditions of emphysema and chronic gastric ulcer, to which his smoking habit had contributed. The issue debated was whether the smoking habit itself was attributable to the respondent's war service within the meaning of s. 9(1)(b) of the Veterans' Entitlements Act, so as to make the conditions in question its consequences, attributable to that war service. The concept of attributability, in the required sense, is explained in Repatriation Commission v. Law (1980) 31 ALR 140 at 151. The joint judgment of the full court there states:

"The cause need not be the sole or dominant cause: it is
sufficient to show 'attributability' if the cause is one of
a number of causes provided it is a contributing cause."

7. As the respondent did not serve overseas, the Tribunal decided the matter "to its reasonable satisfaction" pursuant to s. 120(4) of the Veterans' Entitlements Act. It considered that such a decision was required to be made on the balance of probabilities: Repatriation Commission v. Smith (1987) 74 ALR 537 at 547. To have taken this approach was certainly not adverse to the Repatriation Commission.

8. The Tribunal found that the respondent, at the age of 24, had not smoked before going into camp in the army, but by the end of his period in camp was smoking about 20 cigarettes a day. The Tribunal noted that it was not sufficient simply to find a temporal connection; what was required was "something within the applicant's military service which has caused him to start smoking". It accepted his evidence that he had not smoked before, "and that it was the circumstances whilst he was in camp that caused him to start to smoke". The Tribunal added: "Some of those circumstances were that cigarettes were cheap, other people were smoking, and a certain degree of apprehension as regards his future in the military." The Tribunal pointed out that the respondent "was in a milieu totally different to that which he had experienced before his call-up". (It appears that he was actually a volunteer.)

9. We are unable to find anything suggestive of error in this reasoning. It was for the Tribunal to decide whether it accepted the evidence of the respondent. Nothing seems to have been put before it to contradict that evidence, nor was the respondent seriously challenged in cross examination. Apart from the matters specifically mentioned in the Tribunal's reasons, there were indeed other things adduced in evidence which tended to the same conclusion. The boredom of life in camp clearly emerges from the respondent's account. It is true that not everything which occurs while a man is in camp is attributable to his war service. But here the circumstances and incidents of camp life were plainly capable of having a causal influence upon the respondent's decision to take up smoking, and upon his continuance in the habit until the inevitable onset of nicotinic addiction. It was open to the Tribunal to find the circumstances persuasive. If, in the case of a particular person, one of the inevitable concomitants of war service is camp life, it must be open to the Tribunal to conclude that a consequence (in the sense explained in Repatriation Commission v. Law) of camp life is a consequence of war service. In this case, the Tribunal has done so.

10. Counsel for the applicant attempted to argue that the Tribunal had acted upon less than a persuasion of the probabilities. That submission is in the teeth of the express language of the reasons of the Tribunal, and must be rejected. But we add that the submission appears to mistake the nature of the appeal to the Court conferred on a party by the Act. Provided the conclusion was reasonably open to the Tribunal - as in this case it plainly was - an error in the process of reasoning upon the facts by which it was reached would not be an error of law: Australian Broadcasting Tribunal v. Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-357, per Mason C.J.

11. It follows that the learned Judge was correct when he held any allowance of further time to be a futility, and the appeal the applicant seeks leave to bring would be bound to fail. Leave to appeal should therefore be refused with costs, to be assessed or taxed upon the same basis as if the application to this Court had been an appeal.