Repatriation Commission v Michael George Bey [1997] FCA 1347 (21 November 1997)

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
	)
VICTORIA DISTRICT REGISTRY	) VG 279 of 1997
	)
GENERAL DIVISION	)

BETWEEN:	REPATRIATION COMMISSION Appellant
AND:	MICHAEL GEORGE BEY Respondent

JUDGE(S):	NORTHROP ACJ, R D NICHOLSON, SUNDBERG, MARSHALL AND MERKEL JJ
DATE:	21 NOVEMBER 1997
PLACE:	MELBOURNE

CORRIGENDUM

Please amend the aforementioned judgment as follows:

On page 1 of the reasons for judgment of R D Nicholson J at line two replace the word "dismissed" with "allowed".

Nicholas McGlew

Associate to Justice R D Nicholson

10 December 1997

FEDERAL COURT OF AUSTRALIA

VETERANS AFFAIRS - Reasonable hypothesis connecting disease with war service - Whether mere possibility of connection constitutes reasonable hypothesis.

Veterans' Entitlements Act 1986 , ss 9, 120

East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517 approved and applied

Cooke v Repatriation Commission (1997) 45 ALD 205 considered

Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 considered

Critch v Repatriation Commission (1996) 43 ALD 574 considered

O'Brien v Repatriation Commission [1985] HCA 10; (1985) 155 CLR 422 considered

Webb v Repatriation Commission (1988) 19 FCR 139 approved

Repatriation Commission v Whetton [1991] FCA 472; (1991) 31 FCR 513 approved

Bell v Repatriation Commission [1992] FCA 105; (1992) 26 ALD 545 approved

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 considered

Repatriation Commission v Owens (1996) 70 ALJR 904 applied

Repatriation Commission v Stares (1996) 66 FCR 594 considered

Gilbert v Repatriation Commission (1989 86 ALR 713 approved

REPATRIATION COMMISSION v MICHAEL JORDAN BEY

VG 279 OF 1997

NORTHROP, NICHOLSON, SUNDBERG, MARSHALL AND MERKEL JJ

21 NOVEMBER 1997

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 279 of 1997

BETWEEN:	REPATRIATION COMMISSION AppELLant
AND:	MICHAEL JORDAN BEY Respondent

JUDGES:	NORTHROP, NICHOLSON, SUNDBERG, MARSHALL AND MERKEL JJ
DATE OF ORDER:	21 NOVEMBER 1997
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders of the primary judge be set aside and in lieu thereof it be ordered that the respondent's appeal to the Federal Court be dismissed and the decision of the Administrative Appeals Tribunal be affirmed.

3. The respondent pay the appellant's costs of the appeal and of the proceedings before the primary judge.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 279 of 1997

BETWEEN:	REPATRIATION COMMISSION AppELLant
AND:	MICHAEL JORDAN BEY Respondent

JUDGES:	NORTHROP, NICHOLSON, SUNDBERG, MARSHALL AND MERKEL JJ
DATE:	21 NOVEMBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

NORTHROP, SUNDBERG, MARSHALL and MERKEL JJ

BACKGROUND

The respondent served with the Australian Regular Army in Vietnam between April 1968 and April 1969. His service was "eligible war service" and "operational service" for the purposes of the Veterans' Entitlements Act 1986 ("the Act"). The respondent has contracted rheumatoid arthritis which he contends is sufficiently linked to his service in Vietnam for it to be regarded as war-caused for the purposes of the Act. While in Vietnam the respondent served as a member of an engineering squadron. He carried out maintenance work including the servicing of heavy earthmoving equipment which exposed him to stress. He experienced discomfort from time to time which he attributes to the manner in which he was required to service and repair machinery. The respondent played a lot of sport in Vietnam and would sometimes wake up in the morning with painful joints and limbs, which he attributed to sporting incidents. The pains continued after he left Vietnam. The first time that the symptoms were severe enough for him to seek medical attention was in 1974 or 1975, but he was not diagnosed as suffering from rheumatoid arthritis until 1979.

COURSE OF PROCEEDINGS

In August 1992 a delegate of the appellant determined that the respondent's rheumatoid arthritis was not war-caused. The Veterans' Review Board affirmed that decision. The Veterans' Appeals Division of the Administrative Appeals Tribunal also affirmed the delegate's decision. The respondent's appeal to this Court was allowed, the Tribunal's decision set aside, and the matter remitted to the Tribunal for determination according to law. The appellant has appealed to this Court. The appeal was heard by a court of five Judges since it is said to raise an inconsistency between two decisions of the Full Court: East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517 ("East") and Cooke v Repatriation Commission (1997) 45 ALD 205 ("Cooke").

THE LEGISLATION

Section 9 of the Act sets out the circumstances in which an injury suffered or a disease contracted by a veteran is to be taken to be war-caused. So far as relevant to the present case it is as follows:

(1) Subject to this section, for the purposes of this Act ... a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a) the ... disease contracted ... by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b) the ... disease contracted ... by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

...

(d) the ... disease contracted ... by the veteran is to be deemed by subsection (2) to be ... a war-caused disease;

(e) the ... disease contracted ... by the veteran:

(i) was ... contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii) was ... contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the ... disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran ... contracted that disease;

but not otherwise.

(2) For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, ... due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service:

...

(b) ... the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-caused disease contracted by the veteran.

Section 120 is in part as follows:

(1) Where a claim under Part II for a pension in respect of the incapacity from ... disease of a veteran ... relates to the operational service rendered by the veteran, the Commission shall determine ... that the disease was a war-caused disease ... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

...

(3) In applying subsection (1) ... the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining ... that the disease was a war-caused disease ... 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 ... disease ... with the circumstances of the particular service rendered by the person.

In Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 at 571 the High Court said of the relationship between sub-ss (1) and (3) of s 120:

The position may be summarized as follows: (1) First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s(1) of s 120 is applied.

The method of applying s 120(1) and (3) is now well established:

1. One commences with sub-s (3). The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact.

2. The second step under sub-s (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the "raised facts") and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision maker must identify the facts said to point to it.

3. Whether a hypothesis is reasonable is a question of fact. The decision maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point.

4. If the decision maker concludes that the material raises a reasonable hypothesis, the third step is reached. Sub-section (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.

In some cases the hypothesis may assume the occurrence or existence of a "fact". That itself does not make the hypothesis unreasonable: Byrnes at 570 and Critch v Repatriation Commission (1996) 43 ALD 574 at 577.

EVIDENCE BEFORE TRIBUNAL

(a) Dr Mackay

Dr Ian Mackay gave evidence for the respondent. He is an eminent immunologist who has been interested in rheumatoid arthritis for about thirty years. He submitted two written reports. The first was prepared without the benefit of a physical examination of the respondent, and the second after such an examination. In the first report Dr Mackay expresses the view that the respondent's present rheumatoid arthritis "could have had its first manifestations during his period of eligible service in Vietnam". But he was not prepared to say that the exertion and stress experienced by the respondent during that service "could necessarily be implicated as causal factors". The report concludes:

the reasonable hypothesis can be presented that symptoms compatible with the initial onset of rheumatoid arthritis ... developed during his period of eligible army service, whatever opinion might be held on the influence of service in initiating or aggravating the disease.

In his second report Dr Mackay says that the causes of rheumatoid arthritis are not known, and that he "could not state that any circumstance associated with the veteran's service in Vietnam necessarily predisposed to his disease". He then expresses the view that a reasonable hypothesis could be raised that the respondent's rheumatoid arthritis in fact began during his service in Vietnam, "without the need to postulate any identifiable provoking factors". The report concludes with the following summary:

it is a reasonable hypothesis ... that a progressive disabling rheumatoid arthritis that became overt in 1974-75 had its actual origin at a time earlier than this, and there is some evidence to take the origin back to 1968-69 during Bey's eligible service in Vietnam. It is considered that the case should be assessed only on the basis of a postulated onset of the disease in 1968-69, without any requirement to adduce possible external initiating factors which, in the case of rheumatoid arthritis, are all virtually unproven.

In the course of cross-examination Dr Mackay was asked whether in his reports he was saying that the respondent's war service caused or in any way aggravated the rheumatoid arthritis. His response was that he was not saying that. There is no acceptable body of evidence that allows a cause to be nominated. Of all the possible causes - injury, stress and innumerable infections - none has a level of credibility sufficient for rheumatologists to accept it as a cause. Asked whether there is a link between the respondent's war service and his arthritis, Dr Mackay responded "If there is no cause ascertained, how ever could that link be established?". Later he said he was not prepared to accept that physical activity, whether work-related or sport-related, was the cause of the respondent's disease. He wouldn't exclude it as a cause, but there is no scientific evidence that it is a cause.

(b) Mr Hadley

Mr Hugh Hadley, an orthopaedic surgeon, gave evidence for the respondent. He submitted a report in which he notes other practitioner's views about the cause of the respondent's disease, but expresses no opinion of his own. In the course of cross-examination he was asked whether it was his hypothesis that the physical strains placed on the respondent's body in Vietnam contributed to the development of the arthritis. His reply was that he was an orthopaedic surgeon and not a rheumatologist. Asked about the final paragraph of Dr Mackay's first report, he said:

I think that basically what he is trying to say is that he can't be sure but it is a reasonable hypothesis that his symptoms could have begun due to his service in Vietnam.

A member of the Tribunal suggested to him that Dr Mackay's report did not contain any opinion about a causal relationship between the symptoms and the service. Mr Hadley then re-read the paragraph and said:

I gather from that that he feels that it is a reasonable hypothesis that his Army service has played a part in the onset of the symptoms due to rheumatoid arthritis.

Mr Hadley was asked whether, if Dr Mackay was not suggesting a causal link, he was "prepared to go further" than Dr Mackay. He said he was, and that the service could have initiated or aggravated the arthritis. He gave no reasons for this opinion.

(c) Dr Hall

Dr Stephen Hall, a rheumatologist, gave evidence for the appellant. He said that the delay between the respondent's service and the development of significant symptoms of rheumatoid arthritis makes it impossible to postulate that physical or emotional stress during his service contributed to the development of the disease. He agreed that one could not rule out an association between the rheumatoid arthritis and the symptoms the respondent said he had experienced in Vietnam.

TRIBUNAL'S REASONING

The Tribunal was of the opinion that the evidence raised a hypothesis that the respondent's physical work and sporting activities in Vietnam caused or contributed to the contracting of his rheumatoid arthritis. It said that the question was whether that hypothesis was reasonable. The Tribunal noted that Mr Hadley, who had advanced the hypothesis, had misinterpreted what Dr Mackay had written, and that he had given no reason for his opinion that there was a causative link between the respondent's physical work and sporting activities in Vietnam and the contracting of the disease. This opinion had not been advanced in his written report, but only in cross-examination. The Tribunal noted that there was no evidence of any body of medical opinion to support Mr Hadley's hypothesis which, it said, "lacked the hallmarks of a properly considered opinion". The Tribunal said that Mr Hadley's "demeanour was more that of an advocate than that of a professional witness". It observed that there was no evidence that the onset of the disease is, "as a matter of common or uncommon experience", accompanied by or associated with the type of intense physical activities in which the respondent was engaged in Vietnam. The Tribunal did not consider Mr Hadley "eminent in the relevant field of knowledge", and regarded his hypothesis as "too tenuous to be regarded as reasonable".

Putting aside Mr Hadley's evidence, the other evidence did not, in the Tribunal's view, raise any hypothesis connecting the respondent's rheumatoid arthritis with any of the matters in s 9(1)(a), (b) or (d), or the "contributed to" part of par (e). The Tribunal dealt separately with the "aggravated by" part of par (e). It observed that it was not necessary that the condition be aggravated by war service to a material degree so long as it was "made worse". It noted that a temporary worsening of symptoms may occur without any aggravation of the underlying disease. It found that none of the medical witnesses suggested that the respondent's arthritis, if he had contracted it by the time he left Vietnam, became worse because of his service there. The Tribunal was unable to form any view as to when the respondent may have contracted the arthritis, and in particular whether he contracted it before or during his service in Vietnam.

The Tribunal's conclusion, "after consideration of the whole of the evidence", was that it did not raise a reasonable hypothesis connecting the respondent's disease with the circumstances of his service, and that it was satisfied beyond reasonable doubt that there was no sufficient ground for determining that the disease was war-caused.

PRIMARY JUDGE'S REASONS

The primary judge was of the opinion that the Tribunal had made an error of law in the manner in which it treated the medical evidence. His Honour said:

although the Tribunal found the hypothesis "too tenuous" when based on Dr Mackay's evidence, it did find that he regarded the applicant's physical activity "as no more than a mere possibility". Having made this finding it was not open to the Tribunal as a matter of law consistently with the principles in Bushell and Byrnes to find that the material did not raise a reasonable hypothesis connecting the applicant's rheumatoid arthritis to his service in Vietnam.

His Honour was also of the opinion that the Tribunal erred in its approach to Mr Hadley's evidence because what underpinned his evidence was not only his own opinion but the extent to which it was based on Dr Mackay's hypothesis that it was possible that there was a relevant causal connection.

His Honour found support for the approach he favoured in the opinion of two members of the Full Court in Cooke v Repatriation Commission (1997) 45 ALD 205. A question in that case was whether the veteran's chronic bronchitis was war-caused. One of the hypotheses presented as a reasonable hypothesis was that two episodes of acute bronchial infection for which the veteran had been hospitalised in Japan in 1948 were contributing factors, albeit minor, to the development of the bronchitis. The Tribunal expressed the view that the evidence linking the bronchitis to the hospitalisation "leaves the matter in the nature of mere possibility" which "is insufficient to raise a reasonable hypothesis". In the Full Court Einfeld J said at 214:

By its use of the words "mere possibility" to ground a conclusion that a reasonable hypothesis had not been raised, the tribunal seems to have understood that a "mere possibility" was inconsistent with a reasonable hypothesis. A hypothesis is the premise on which a supposition is based or a possibility suggested. It is in substance a possibility. Therefore, a statement that a reasonable hypothesis is not raised because it "leaves the matter in the realisation of mere possibility" reflects a misconception of the task imposed on the Tribunal by section 120 ....

At 230 Lee J said:

The tribunal seems to have understood that a "mere possibility" was inconsistent with a reasonable hypothesis. An hypothesis is the argument constructed from a supposition or a possibility. A statement that a reasonable hypothesis is not raised because it "leaves the matter in the realm of mere possibility" is inconsistent with the application of s 120 of the Act according to its proper construction".

HISTORY OF S 120(3)

Section 47 of the Repatriation Act 1920 (introduced in 1977) directed a body dealing with claims, applications or appeals to allow the same "unless it is satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the claim ...". In O'Brien v Repatriation Commission [1985] HCA 10; (1985) 155 CLR 422 at 434 a majority of the High Court adopted the view of s 47 that where "a real possibility of the existence of a fact [is] left open by material although there is nothing which points to that possibility", it cannot be said that the existence of that fact is disproved beyond reasonable doubt. Brennan J dissented. At 438 his Honour said:

If the facts thus ascertained support a reasonable hypothesis that the claimant is entitled to a benefit under the eligibility provision of the Act, the Board or the Commission must determine to grant the claim. If a reasonable hypothesis of entitlement arises on some of those facts, the Board or Commission must determine to grant the claim unless other facts dispel the hypothesis beyond reasonable doubt.

Section 47 was amended shortly after the O'Brien decision. In introducing the amendment the Minister said:

It has always been accepted that the repatriation pension system should be generous. Nevertheless generosity seems to have gone beyond reasonable bounds in a situation where a pension must be granted ... even if there is no evidence raising a reasonable possibility of a link between the incapacity or death claimed and the veteran's period of eligible war service.

(Parliamentary Debates, House of Representatives, 16 and 17 May 1985, 2645.)

The Minister explained that the new provisions adopted the scheme of Brennan J's dissenting judgment in O'Brien: at 2646.

In drafting s 120 of the Act, s 47 in its 1985 form was in some respects changed, but the intention was still to reject the O'Brien decision. The Minister stressed the continuing intention to overrule O'Brien, and referred to the detailed reasons given in the second reading speech on the amendments to s 47 in 1985. He said:

The Government does not accept that a pension should be payable when there is no evidence to suggest a war service relationship to the claimed disability or death.

(Parliamentary Debates, House of Representatives, 16 October 1985, 2181.)

The history of the relevant legislation is explored more fully in East.

EAST

East concerned a claim for pension by the widow of a veteran who had died from a disease of unknown aetiology. The Tribunal found that none of the hypotheses advanced to connect the death with war service was reasonable. On appeal to the Full Court the widow contended that where the cause of incapacity or death or the aetiology of a disease causing incapacity or death is unknown, there must, necessarily, be a real possibility of connection; hence the claim must be allowed. The Full Court rejected the contention on the ground that it paid "insufficient regard both to the history of the legislation and to the meaning of the phrase `reasonable hypothesis'": (1987) 16 FCR at 531-532.

After referring to the amendments which were intended to negate the effect of O'Brien, the Full Court said that if the widow's submission were correct, "the pre-1985 position would be retained".

The Court approved the following passage from the decision of the Veterans' Review Board in Stacey (unreported 26 June 1985):

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.

Putting the matter in its own words, the Full Court said at 533:

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.

The Full Court's ruling as to the meaning of "reasonable hypothesis" has been applied by later Full Courts: Webb v Repatriation Commission (1988) 19 FCR 139 (Davies and Foster JJ); Repatriation Commission v Whetton [1991] FCA 472; (1991) 31 FCR 513 at 515 (Beaumont, Burchett and Lee JJ) and Bell v Repatriation Commission [1992] FCA 105; (1992) 26 ALD 545 at 546 (Davies, Beaumont and Einfeld JJ). The ruling was expressly approved by Brennan J and Toohey J in Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 427-428 and 439.

COOKE

Read in isolation the passage we have quoted from Einfeld J's judgment does appear to state that medical evidence to the effect that it is possible that a disease is attributable to war service is sufficient to give rise to a reasonable hypothesis. But there are other passages in his Honour's judgment that suggest he was applying the East formulation. Thus at 210 he referred to East and Webb. At 211 his Honour said that s 120(3) asked whether there were facts raised by the material which, if true, "would support or point or give rise to, a hypothesis ...". And at 215 his Honour concluded that "the material raised facts which pointed to and supported the hypothesis raised". This was a reference to the evidence of Dr Pritchard who in his written report had stated that the episode of broncho-pneumonia for which the veteran had been hospitalised in Japan was one of the causes of his chronic bronchitis. In cross-examination he appears to have departed from this, by saying that what he meant in his report was that it was possible that two significant episodes of respiratory infection could have been a contributing factor to the development of chronic bronchitis, "but I can't say more than that". At 215 Einfeld J said that the Tribunal appeared to accept that Dr Pritchard had not resiled from the hypothesis presented in his report, and that had the Tribunal thought he had modified his opinion, "it would have been necessary for it to have said so". It is thus clear that his Honour's ultimate conclusion was that on the evidence as he understood it, there was material which raised facts which pointed to and supported the hypothesis raised.

Much the same can be said of Lee J's judgment. Thus at 229 his Honour said that the Tribunal's task was to determine "whether facts pointed to by the claim" gave rise to a reasonable hypothesis. Lee J too said that the Tribunal appeared to accept that Dr Pritchard had not resiled from the hypothesis presented in his report, and that had the Tribunal thought that he had so resiled, it would have been necessary for it to have said so, and then to have determined whether the altered hypothesis was reasonable "by ascertaining whether the material before the tribunal pointed to the facts which, if true, would support the hypothesis": at 230.

In the passages from the judgments of Einfeld J and Lee J relied on by the primary judge their Honours concluded that the mere possibility of a connection between a disease and war service is sufficient to constitute a "reasonable hypothesis" on the ground that any hypothesis is no more than a possibility. Accordingly, for the Tribunal to say that a reasonable hypothesis is not raised by a mere possibility of a connection reflects a misconception of the task imposed by s 120(3). In our view that course of reasoning ignores the fact that the expression in question is not "hypothesis" but "reasonable hypothesis". While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision maker. The reasoning is also inconsistent with what was said by Mason CJ, Deane and McHugh JJ in Bushell at 414:

The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.

It is also inconsistent with what was said by Mason CJ, Gaudron and McHugh JJ in Byrnes at 569-570:

The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable.

Any doubt that attends the status of East as a correct exposition of the law relating to s 120(3) should be dispelled. This Court re-states the position established by East, Bushell and Byrnes. A "reasonable hypothesis" involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word "reasonable", is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the Minister's second reading speech and with authority.

If the two passages in Cooke do depart from East, as read in isolation they appear to do, they are incorrect. Certainly in the present case the primary judge's understanding and application of the passages was inconsistent with East.

Whether material raises a "reasonable hypothesis" for the purposes of s 120(3) is a question of fact for it involves no more than a determination whether a hypothesis of connection is reasonable: Repatriation Commission v Owens (1996) 70 ALJR 904. For the reasons it gave, the Tribunal was entitled to discard Mr Hadley's evidence. That left the evidence of Dr Mackay and Dr Hall. Neither put forward material which pointed to the hypothesis advanced by the respondent. Neither went further than to say that the suggested cause of the disease was a possibility. Since the cause of the disease is not known and they were not able to say when it was contracted, they could not put it higher than that. In our view the Tribunal was entitled to conclude that in those circumstances the material did not raise a reasonable hypothesis connecting the respondent's rheumatoid arthritis with his war service.

NOTICE OF CONTENTION

The respondent filed a notice contending that the primary judge had erred in law in thirteen respects. Only six of the grounds were pursued.

(a) The first is that his Honour was wrong in failing to rule that the Tribunal erred in requiring each element of the hypothesis to be established by evidence. Cf Repatriation Commission v Stares (1996) 66 FCR 594 at 598, 601. The hypothesis was that the respondent's physical work and sporting activities in Vietnam caused or contributed to his disease. The Tribunal did not require each element of that hypothesis to be established by evidence. Rather, it examined the evidence to determine whether there was any reasonable basis therein for the hypothesis.

(b) The second complaint is that his Honour was wrong in ruling that the Tribunal had no obligation to raise any favourable inference pursuant to s 119 of the Act. Section 119(1)(g) requires the Tribunal (standing in the place of the Commission) to act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities. Section 119(1)(h) requires the Tribunal to take into account any difficulties that lie in the way of ascertaining the existence of any fact, matter, cause or circumstance. The respondent's contention appears to be that in requiring a causative link between the arthritis and war service the Tribunal was acting contrary to s 119. For the reasons we have given, in order for the hypothesis advanced by the respondent to be reasonable there must be material pointing to a connection between his disease and war service. The material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119(1)(g). The requirement to act according to substantial justice does not displace the Tribunal's obligation to act in accordance with law: Collins v Repatriation Tribunal [1980] FCA 105; (1980) 48 FLR 198 at 209; Re McKay and Repatriation Commission (1988) 8 AAR 215 at 222; Kumer v Immigration Review Tribunal [1992] FCA 319; (1992) 36 FCR 544 at 555-556. Paragraph (h) of s 119(1) is a provision of the same character as par (g): see the words which introduce it - "without limiting the generality of the foregoing". Thus, like par (g), it does not authorise the Tribunal to depart from the meaning of provisions of the Act as expounded by judicial decisions. In any event, we do not regard the phrase "difficulties that ... lie in the way of ascertaining the existence of any ... cause" as enabling the Tribunal to ignore current medical evidence that there is no proved connection between arthritis and war-caused stress.

(c) The next complaint is that his Honour was wrong in not ruling that the Tribunal had erred in law in failing to examine the whole of the material "before rejecting a reasonable hypothesis pursuant to s 120(3)". This complaint has no substance. The Tribunal reviewed the evidence of the medical witnesses in detail. It considered the validity of the reasoning that supported Mr Hadley's hypothesis and the opinions expressed by Dr Mackay and Dr Hall. It concluded that Mr Hadley's hypothesis was not reasonable, that the evidence supported a hypothesis of temporary aggravation, that a temporary worsening was insufficient to establish that the disease was war-caused, and that the whole of the material before it did not raise a reasonable hypothesis. An examination of its reasons discloses that the Tribunal did what it said it did - reached its conclusion "after consideration of the whole of the material before us". The course adopted by the Tribunal accords with the prescription laid down in Bushell at 415.

(d) The respondent then claims that the primary judge was wrong in not ruling that the Tribunal had erred by making a choice between hypotheses. Reference was made to the observation in Bushell at 415 that it is not the function of s 120(3) to require the Tribunal to "choose between competing hypotheses". The respondent's grievance is that the Tribunal accepted Dr Mackay's and Dr Hall's hypothesis (the mere possibility of a connection) in preference to Mr Hadley's (a causative link). But it is to be noted that the paragraph in Bushell which contains the injunction against choosing between hypotheses is introduced by the words "leaving aside cases of those kinds", that is to say hypotheses which are "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous". Further, the paragraph states only that it would be rare for a hypothesis based on the raised facts to be rejected as not reasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. For the reasons it gave, the Tribunal was of the view that Mr Hadley was not eminent in the relevant field of knowledge, and that his hypothesis was too tenuous, and it dismissed it. In doing that the Tribunal was examining the validity of the basis for Mr Hadley's hypothesis rather than choosing between hypotheses in the sense enjoined by the High Court.

(e) The next contention is that the judge was wrong in failing to rule that the Tribunal had erred by having "misconceived the two step process set out in Byrnes". The Tribunal was alert to the two step process and faithfully followed it. It accepted that the evidence raised the hypothesis contended for. It then considered whether the hypothesis was reasonable, and concluded that the material did not raise a reasonable hypothesis connecting the disease with war-service. The Tribunal did not proceed beyond the first step (s 120(3)). Nor did it conflate the two steps. It did not in its examination of the case under s 120(3) require proof of facts.

(f) The final claim is that the Tribunal and the judge erred in failing to draw the inference that the respondent had suffered stress during his service in Vietnam. The Tribunal made no express finding to this effect. But it is clear from its reasons that it proceeded on the basis that he suffered physical and mental stress while in Vietnam, but found that there was nothing to link that stress with the disease. Thus the Tribunal records that in the reports referred to by Mr Hadley reference is made to the respondent's "physical and mental stress while serving in Vietnam", that Mr Hadley was of the opinion that the respondent was under physical and mental stress when in Vietnam and that that was a contributing factor to the development of the disease, and that Dr Hall was of the view that it is impossible to postulate that the respondent's physical or emotional stress suffered while he was in Vietnam contributed to the development of the arthritis. The Tribunal did not take issue with the respondent's claim that he suffered from stress. Rather it assumed that he did, and when it announced its conclusion that the material did not raise a reasonable hypothesis connecting the arthritis with "the circumstances of the particular service rendered by him", those circumstances can be taken to include the stress.

Nor is there any basis for the contention that the primary judge failed to draw the inference of stress. His Honour found that while in Vietnam the respondent carried out work which exposed him to stress. He referred to Mr Hadley's views about the causative effects of the respondent's physical and mental strains, and to Dr Hall's views about his "physical or emotional stress during his service".

CONCLUSION

The primary judge erred in law in holding that the mere possibility of a connection between war service and the respondent's disease constitutes a reasonable hypothesis. The appeal must be allowed and the Tribunal's decision affirmed.

I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justices Northrop, Sundberg, Marshall and Merkel JJ

Associate:

Dated: 21 November 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 279 of 1997
GENERAL DIVISION

BETWEEN:	REPATRIATION COMMISSION appellant
AND:	MICHAEL GEORGE BEY Respondent

JUDGE:	NORTHROP ACJ, R D NICHOLSON J, SUNDBERG J, MARSHALL AND MERKEL JJ
DATE:	21 NOVEMBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

R D NICHOLSON J: I concur with the reasons for judgment of the other members of the Court and with the conclusion this appeal should be dismissed. I wish only to add the following.

The effect of the authority of East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517, Bushell v Repatriation Commission (192) [1992] HCA 47; 175 CLR 408 and Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 is clear. In the application of s 120(3) of the Veteran's Entitlements Act 1986 (Cth) ("the Act") it is necessary there be material before the decision-maker, unaffected by any notion of onus of proof or by any presumption, which raises a reasonable hypothesis of a causal connexion between the morbid condition and the veteran's operational service: Bushell (supra at 425) per Brennan J. The only question raised by this appeal is whether the requirement for such "material" is satisfied by evidence capable of being characterised as raising only "a mere possibility": cf Cooke v Repatriation Commission (1997) 45 ALD 204 at 214 per Einfeld J and at 203 per Lee J.

In my view, a proper understanding of the application of s 120(3) as enunciated by the High Court in Bushell (supra) and Byrnes (supra) is clouded by the negative characterisation of evidence as "a mere possibility". That description leaves unexplained what constitutes such evidence. It is preferable to approach the application of the sub-section in the manner made apparent in the decisions of the High Court; that is by searching for "material" which "raises" a reasonable hypothesis.

There may be circumstances in which evidence of an hypothesis by a suitably qualified expert founded upon some grounds whether in medical literature or experience may adduce evidence being material from which a reasonable hypothesis can be found to arise. Such evidence may be capable of description as being "a mere possibility", yet may raise an hypothesis within the principles stated in Bushell (supra) and Byrne (supra). That is why the general description of evidence as "a mere possibility" is not helpful in that it clouds the distinction between an hypothesis raised by the material and an hypothesis of which there is evidence that it cannot be excluded but which is not otherwise raised. The latter is the present case and the Tribunal was correct to conclude that, in the absence of any other evidence raising the hypothesis and in the presence of evidence negative to the credit of the witness (Mr Hadley) giving evidence of non-exclusion, the hypothesis was not reasonable.

In summary, I consider the effect of the authorities on the nature of a reasonable hypothesis and the question of whether a so-called "mere possibility" can qualify as such is as follows:

(1) For a reasonable hypothesis to arise, what is required is more than a mere hypothesis. Something more than a possibility consistent with the known facts is required: East (supra at 531).

(2) An hypothesis which is fanciful, impossible, incredible or not tenable or too remote or too tenuous will not be a reasonable hypothesis: East (supra at 531). The hypothesis must not be fanciful or unreal: East (supra at 531).

(3) An hypothesis can be reasonable without being proved and in that sense may be theoretical: East (supra at 531); Bushell (supra at 414-415).

(4) Nevertheless there must be some material which points to some fact or facts (`the raised facts') which support the hypothesis and from which the hypothesis can be regarded as reasonable if the raised facts are true: Bushell (supra at 414). It is from the evidence that the raising of a reasonable hypothesis comes: Bushell (supra at 427). This means the material before the Commission must raise some fact or facts which give rise to the hypothesis: Byrnes (supra at 569-570). It will be this which gives a degree of acceptability or credibility to the hypothesis: East (supra at 531).

(5) It would be rare for an hypothesis put forward by a medical practitioner who is eminent in the relevant field of knowledge to be held to be unreasonable: Bushell (supra at 414-415; 430).

(6) An hypothesis will not be unreasonable because the medical opinion giving rise to it is in conflict with other medical opinion: Bushell (supra at 415). Nor is it decisive the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists: Bushell (supra at 414).

(7) A "mere possibility", in the sense of an hypothesis advanced, eg: by a medical practitioner speaking within the ambit of his expertise, will ordinarily raise a reasonable hypothesis. The evidence of expertise will provide the acceptability or credibility to the hypothesis even if the evidence is the hypothesis cannot be excluded: Bushell (supra at 414 and 430). While eminence in such field alone, in a case where the medical opinion is no more than to the effect the possibility of causation of the morbid condition by the nature of the service cannot be excluded, is close to an hypothesis unsupported by any evidence, it will, however, be a matter of judgment whether the eminence is such as to give rise to raised facts.

(8) A "mere possibility", in the sense of an hypothesis unsupported by any evidence of a witness with appropriate expertise to give it acceptability or credibility, cannot qualify as a reasonable hypothesis - it will not be an hypothesis "raised by the facts."

(9) An hypothesis which satisfies s 120(3), that is reasonable having regard to the raised facts, will create the position where it cannot be conceived there is any ground for a conclusion by the Commission under s 120(1) that "there is no sufficient ground for making that determination": cf Bushell (supra at 416).

In the present case the only evidence capable of raising an hypothesis was evidence which lacked any circumstances giving it credibility. The Tribunal was correct to find it was not a "reasonable" hypothesis.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson

Associate:

Dated: 21 November 1997

Counsel for the Applicant: P Hanks & D Mortimer

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: D De Marchi

Solicitor for the Respondent: De Marchi & Associates

Date of Hearing: 30 September 1997

Date of Judgment: 21 November 1997