Knight v Repatriation Commission [2002] FCA 103 (15 February 2002)

Last Updated: 18 February 2002

FEDERAL COURT OF AUSTRALIA

Knight v Repatriation Commission [2002] FCA 103

VETERANS' AFFAIRS - veterans' entitlements - lumbar spondylosis - whether a war-caused disease - Tribunal found material pointed to no reasonable hypothesis - whether Tribunal applied legislation correctly - application of statement of principles

WORDS AND PHRASES - "acute symptoms and signs of pain, tenderness, and altered mobility or range of movement"

Veterans' Entitlements Act 1986 (Cth) ss 6A, 9, 119, 120, 120A, 196B

Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)

Repatriation Commission v Deledio (1998) 83 FCR 82 applied

Harris v Repatriation Commission [2000] FCA 873 (2000) 31 AAR 270 considered

Connors v Repatriation Commission [2000] FCA 783 (2000) 59 ALD 61 considered

Repatriation Commission v Bey (1997) 79 FCR 364 applied

Kumar v Immigration Review Tribunal (1992) 36 FCR 544 referred to

Repatriation Commission v Flentjar (1997) 47 ALR 67 referred to

Thanh Phat Ma v Billings (1997) 71 FCR 431 referred to

Grundman v Repatriation Commission [2001] FCA 892 referred to

Harris v Repatriation Commission [2000] FCA 1687 (2000) 32 AAR 84 applied

Arnott v Repatriation Commission [2001] FCA 262 (2001) 32 AAR 445 applied

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

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

Repatriation Commission v Bey (1997) 79 FCR 364 referred to

Repatriation Commission v Keeley [2000] FCA 532 (2000) 98 FCR 108 considered

Repatriation Commission v Gorton [2001] FCA 1194 (2001) 33 AAR 370 considered

LESLIE ROY KNIGHT v REPATRIATION COMMISSION

V 673 of 2000

GRAY J

15 FEBRUARY 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 673 of 2000

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	LESLIE ROY KNIGHT APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	15 FEBRUARY 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the proceeding.

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	V 673 of 2000

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	LESLIE ROY KNIGHT APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	GRAY J
DATE:	15 FEBRUARY 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The nature of the proceeding

1 This appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") concerns the manner in which the Tribunal dealt with a review of a decision about entitlement to pension pursuant to the Veterans' Entitlements Act 1986 (Cth) ("the VE Act"). The points raised concern the proper approach of the Tribunal to complex provisions of the VE Act relating to the establishment of such an entitlement.

The facts

2 The applicant served in the Royal Australian Airforce from 29 August 1944 to 8 March 1949. Part of his service was overseas before the end of World War II, so the whole of the service is within the definition of "operational service" in s 6A of the VE Act. From some time in 1946 until 22 December 1948, the applicant served in Japan. He may also have served in Borneo before going to Japan.

3 By application lodged with the Repatriation Commission ("the Commission") on 1 September 1997, the applicant sought a disability pension and medical treatment for disabilities that had not by then been accepted as service-related. The conditions he identified were heart problems, stress, hearing problems, tinnitus and back problems (spondylosis). On 18 November 1997, a delegate of the Commission published a written decision, accepting the claim for bilateral sensorineural hearing loss and tinnitus and anxiety disorder. At the same time, the delegate refused the claim for ischaemic heart disease and lumbar spondylosis. The delegate granted a disability pension at 40 per cent of the general rate with effect from 1 June 1997. The applicant appealed from this decision to the Veterans' Review Board. On 1 February 1999, the Veterans' Review Board published a decision in writing, affirming the decision to refuse the claim for lumbar spondylosis and ischaemic heart disease on the ground that these conditions were not war-caused.

4 The applicant then appealed to the Tribunal. The Tribunal conducted a hearing on 30 May 2000, at which the applicant was represented by counsel. The Tribunal's decision was dated 4 August 2000. In its reasons for decision, the Tribunal recorded the fact that, in opening the applicant's case at the hearing, his counsel had conceded that the applicant could not succeed in having ischaemic heart disease accepted as war-caused. It was not in dispute that the applicant was suffering from lumbar spondylosis. The only issue before the Tribunal, as it recorded in its reasons for decision, was whether the applicant's lumbar spondylosis was a war-caused disease. The Tribunal found that it was not and affirmed the decision under review.

5 It is from that decision of the Tribunal that the applicant has appealed to this Court. By s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), such an appeal is limited to a question of law.

6 The questions of law identified in the applicant's notice of appeal are:

"1. Was the Tribunal wrong in law in failing to apply or apply correctly

ss 9, 119, 120(1)(3)(6) and 120A of the Veteran's [sic] Entitlements

Act 1986?

2. Was the Tribunal wrong in law in following the decision of Connors v

Repatriation Commission [2000 FCA, at 283] where the Court

qualified the High Court decisions of Bushell and Byrnes that the

hypothesis may assume the existence of a fact?

3. Was the Tribunal wrong in law in interpreting Statement of Principles

No. 165 of 1996?"

The legislation

7 Section 9 of the VE Act provides relevantly as follows:

"(1) Subject to this section, for the purposes of this Act, an injury suffered

by a veteran shall be taken to be a war-caused injury, or a disease

contracted by a veteran shall be taken to be a war-caused disease, if:

(a) the injury suffered, or disease contracted, by the veteran

resulted from an occurrence that happened while the veteran

was rendering operational service;

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

by the veteran;

(c) the injury suffered, or disease contracted, by the veteran

resulted from an accident that occurred while the veteran was

travelling, while rendering eligible war service but otherwise

than in the course of duty, on a journey to a place for the

purpose of performing duty or away from a place of duty upon

having ceased to perform duty;

(d) the injury suffered, or disease contracted, by the veteran is to

be deemed by subsection (2) to be a war-caused injury or a

war-caused disease;

(e) the injury suffered, or disease contracted, by the veteran:

(i) was suffered or contracted while the veteran was

rendering eligible war service, but did not arise out of

that service; or

(ii) was suffered or 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 injury or 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 suffered that

injury or 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 an accident that would not

have occurred, or 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:

(a) if that incapacity was due to an accident--that incapacity

shall be deemed to have arisen out of the injury suffered by the

veteran as a result of the accident and the injury so suffered

shall be deemed to be a war-caused injury suffered by the

veteran; or

(b) if the incapacity was due to a disease--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."

8 Section 119 of the VE Act provides relevantly as follows:

"(1) In considering, hearing or determining, and in making a decision in

relation to:

(a) a claim or application;

...

the Commission:

(f) is not bound to act in a formal manner and is not bound by any

rules of evidence, but may inform itself on any matter in such

manner as it thinks just;

(g) shall act according to substantial justice and the

substantial merits of the case, without regard to legal form and

technicalities; and

(h) without limiting the generality of the foregoing, shall take into

account any difficulties that, for any reason, lie in the way of

ascertaining the existence of any fact, matter, cause or

circumstance, including any reason attributable to:

(i) the effects of the passage of time, including the effect of

the passage of time on the availability of witnesses; and

(ii) the absence of, or a deficiency in, relevant official

records, including an absence or deficiency resulting

from the fact that an occurrence that happened during

the service of a veteran, or of a member of the Defence

Force or of a Peacekeeping Force, as defined by

subsection 68(1), was not reported to the appropriate

authorities."

9 The relevant provisions of s 120 are as follows:

"(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.

...

(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.

...

(6) Nothing in the provisions of this section, or in any other provision of

this Act, shall be taken to impose on:

(a) a claimant or applicant for a pension or increased pension, or

for an allowance or other benefit, under this Act; or

(b) the Commonwealth, the Department or any other person in

relation to such a claim or application;

any onus of proving any matter that is, or might be, relevant to the

determination of the claim or application."

10 It is also necessary to note the relevant provisions of s 196B of the VE Act:

"(1) This section sets out the functions of the Repatriation Medical

Authority.

Determination of Statement of Principles

(2) If the Authority is of the view that there is sound medical-scientific

evidence that indicates that a particular kind of injury, disease or

death can be related to:

(a) operational service rendered by veterans; or

(b) peacekeeping service rendered by members of Peacekeeping

Forces; or

(c) hazardous service rendered by members of the Forces;

the Authority must determine a Statement of Principles in respect of

that kind of injury, disease or death setting out:

(d) the factors that must as a minimum exist; and

(e) which of those factors must be related to service rendered by a

person;

before it can be said that a reasonable hypothesis has been raised

connecting an injury, disease or death of that kind with the

circumstances of that service.

...

(11) If, after reviewing a decision of the Authority not to determine a

Statement of Principles under subsection 196B(2) in respect of a

particular kind of injury, disease or death, the Review Council has, by

a decision notified in the Gazette, directed the Authority to make such

a Statement of Principles, the Authority must determine a Statement of

Principles in respect of that kind of injury, disease or death setting out,

in accordance with the directions of the Council:

(a) the factors that must as a minimum exist; and

(b) which of those factors must be related to service rendered by a

person;

before it can be said that a reasonable hypothesis has been raised

connecting an injury, disease or death of that kind with the

circumstances of that service."

11 Section 120A of the VE Act provides relevantly:

"(3) For the purposes of subsection 120(3), a hypothesis connecting an

injury suffered by a person, a disease contracted by a person or the

death of a person with the circumstances of any particular service

rendered by the person is reasonable only if there is in force:

(a) a Statement of Principles determined under subsection 196B(2)

or (11);

...

that upholds the hypothesis."

The statement of principles

12 On 9 December 1996, the Repatriation Medical Authority determined a Statement of Principles pursuant to s 196B(2) of the VE Act with respect to lumbar spondylosis. It is designated as Instrument No. 165 of 1996. The Tribunal referred to it in its reasons for decisions as the SoP and it is convenient for me to adopt this abbreviation. Clause 5 of the SoP contains its crucial provision for this case:

"The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis or death from lumbar spondylosis with the circumstances of a person's relevant service are:

(a) having been a prisoner of war; or

(b) contracting a significant inflammatory joint disease in the lumbar

spine before the clinical onset of lumbar spondylosis; or

(c) suffering an intra-articular fracture of the lumbar spine before the

clinical onset of lumbar spondylosis; or

(d) having a malalignment of the lumbar spine before the clinical onset of

lumbar spondylosis; or

(e) suffering a depositional joint disease in the lumbar spine before the

clinical onset of lumbar spondylosis; or

(f) suffering a trauma to the lumbar spine which has resulted in

permanent ligamentous instability before the clinical onset of lumbar

spondylosis; or

(g) suffering a trauma to the lumbar spine before the clinical onset of

lumbar spondylosis; or

(h) suffering a lumbar intervertebral disc prolapse before the clinical

onset of lumbar spondylosis at the level of the intervertebral disc

prolapse; or

(j) suffering a trauma to the lumbar spine which has resulted in

permanent ligamentous instability before the clinical worsening of

lumbar spondylosis; or

(k) suffering a trauma to the lumbar spine before the clinical worsening of

lumbar spondylosis."

13 Also of importance to the present case is the following definition in cl 7 of the SoP:

"`trauma to the lumbar spine' means an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (for example splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered".

The proper approach to a statement of principles

14 In Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 - 98, the Full Court identified the four steps which it is necessary for the Tribunal to take in applying ss 120 and 120A of the VE Act when there is an SoP as follows:

"1. The Tribunal must consider all the material which is before it and

determine whether that material points to a hypothesis connecting the

injury, disease or death with the circumstances of the particular

service rendered by the person. No question of fact finding arises at

this stage. If no such hypothesis arises, the application must fail.

2. If the material does raise such a hypothesis, the Tribunal must then

ascertain whether there is in force an SoP determined by the Authority

under s 196B(2) or (11). If no such SoP is in force, the hypothesis

will be taken not to be reasonable and, in consequence, the application

must fail.

3. If an SoP is in force, the Tribunal must then form the opinion whether

the hypothesis raised is a reasonable one. It will do so if the

hypothesis fits, that is to say, is consistent with the `template' to be

found in the SoP. The hypothesis raised before it must thus contain

one or more of the factors which the Authority has determined to be

the minimum which must exist, and be related to the person's service

(as required by ss 196B(2)(d) and (e)). If the hypothesis does contain

these factors, it could neither be said to be contrary to proved or

known scientific facts, nor otherwise fanciful. If the hypothesis

fails to fit within the template, it will be deemed not to be

`reasonable' and the claim will fail.

4. The Tribunal must then proceed to consider under s 120(1) whether it

is satisfied beyond reasonable doubt that the death was not

war-caused, or in the case of a claim for incapacity, that the

incapacity did not arise from a war-caused injury. If not so satisfied,

the claim must succeed. If the Tribunal is so satisfied, the claim must

fail. It is only at this stage of the process that the Tribunal will be

required to find facts from the material before it. In so doing, no

question of onus of proof or the application of any presumption will be

involved."

The Tribunal's reasons

15 As I have said, it was common ground before the Tribunal that the applicant suffered from lumbar spondylosis. It was also agreed between counsel for the applicant and the representative of the Commission appearing before the Tribunal that, if the lumbar spondylosis were accepted as war-caused, the applicant would be entitled to payment of pension at 70 per cent of the general rate from 1 June 1997, but that 40 per cent was the appropriate rate if lumbar spondylosis were not war-caused. The Tribunal therefore identified the only issue before it as whether or not the lumbar spondylosis was a war-caused disease.

16 As the Tribunal recorded in its reasons for decision, counsel for the applicant relied on the factor in cl 5(g) of the SoP. The minimum factor that was required to exist before it could be said that a reasonable hypothesis had been raised connecting the applicant's lumbar spondylosis with the circumstances of his relevant service was that the applicant suffered a trauma to the lumbar spine before the clinical onset of lumbar spondylosis. The Tribunal was therefore required to look at the definition of "trauma to the lumbar spine" in cl 7 of the SoP.

17 Having set out the relevant extracts from the SoP, the Tribunal set out a summary of the law, which it said was agreed between counsel for the applicant and the representative of the Commission. This summary contained reference to Deledio and to other authorities. It stated the question before it in the following terms:

"The question for the Tribunal is therefore whether there is material before the Tribunal pointing to the existence of the factor of `trauma to the lumbar spine', as defined in the SoP, during service. If there is such evidence the hypothesis is reasonable but if the evidence only leaves the matter open as a possibility the hypothesis is not raised. Once the hypothesis is raised the factor is taken to exist unless the contrary is proved beyond reasonable doubt."

18 The Tribunal then set out various accounts given by the applicant at different times as to the effects of his work during service in Japan upon his back. The applicant traced his back problems to his work as a carpenter in Japan. He was involved in the making of large wooden boxes into which parts of Mustang Fighters were packed to be shipped to Australia. He described himself and another carpenter manhandling aircraft into the appropriate position for dismantling. He also described manoeuvring propellers onto the bases of wooden boxes after the propellers had been removed from aircraft.

19 In the course of its reasons for decision, the Tribunal identified eight different accounts given by the applicant of how he came to suffer back problems in Japan. It is convenient to summarise those different accounts from the Tribunal's reasons.

* In his evidence at the hearing before the Tribunal, the applicant said that he wore steel horseshoes on the soles of his boots and often slipped on the concrete floors when pushing the aircraft. He described an occasion of trauma in 1947 after he had been in Japan for six or eight weeks. He was pushing an aircraft and his feet slipped from under him, he went down onto his knees and got a sharp pain across the back. He stood up and moved his body around a few times and everything seemed to be all right. When he started to push again, he got sharp pains again, so he went to the hospital and reported in. He had electric pads put across his lower back and on his stomach, which gave him some relief and he went back to work on the same day. He went back to work because if he did not, he would have had to stay in hospital, which would have led to him being posted back to Australia. Thereafter, he reported to the hospital for treatment, sometimes once a week, sometimes two or three times a week but the frequency eased off after the first couple of months. He found that he could not lift anything heavy.

* In a trauma statement, signed on 10 April 1999, the applicant described an incident in which he and other men had to pick up a box containing a propeller from the sides. It was too heavy and they dropped the box. The incident caused immediate pain in the back and caused him to attend at the medical centre for treatment. He reported the incident but it was never recorded. He was treated with analgesics and heat pads for seven to eight days and took it easy for at least ten days as his back was extremely sore. He had not been free from back pain since that time. In his evidence before the Tribunal, he said that the statement was incorrect. He said there was never an occasion when he and other men had to pick up a box containing a propeller. The boxes were always lifted up by chains and a crane. In his address to the Tribunal, counsel for the applicant conceded that there had been mistakes made in the preparation of the trauma statement and disclaimed any reliance upon it, in view of the applicant's evidence. He described it as "of no value whatsoever."

* In his initial claim to have lumbar spondylosis accepted as a war-caused disease, the applicant did not describe any injury. In response to the question, "Why do you believe your service caused, contributed to or aggravated this disability?", the applicant wrote "constant lifting of heavy materials on service."

* At some stage, the applicant completed a claimant report headed "Trauma Lumbar Spondylosis". It contained a number of questions. In answer to the question, "when were the symptoms of lumbar spondylosis first noticed?" the applicant wrote "7 March 95". He made no response to the next seven questions, which sought information as to whether there had ever been an injury to the back and details of such injury if it had occurred.

* A medical report of Dr Antoniadis, the applicant's treating doctor, indicated that the applicant had not given him a history of any trauma to the lumbar spine.

* In a history given to Dr Freed, a psychiatrist, on 26 September 1997, the applicant claimed to have been suffering from long-standing low back pain manifest for some months prior to his discharge from the airforce in early 1949. He stated that he did not have specific treatment for low back pain, which he believed was due to his work within the airforce as a carpenter. He stated that his low back pain was exacerbated significantly in the context of a knee injury he sustained whilst a police sergeant, when jarring his leg stepping out of a police car and damaging the cartilage of his left knee. He had an operation for the left knee whilst in the police force in about 1971 and ongoing pain in his left knee had aggravated lower back pain subsequently.

* In a history given to Mr Quirk, an orthopaedic surgeon, on 20 August 1998, the applicant described constant strain on his back and a lot of heavy lifting in the work he did in relation to the aircraft. He said that he developed pain in the back while he was doing this work and the pain has never left him. He saw doctors in the airforce at the time when the pain came on but no treatment was offered nor was any x-ray or other investigation made. The applicant told the orthopaedic surgeon that over a period of three years he reported his back pain at least once a month.

* In evidence before the Veterans' Review Board, the applicant was asked whether there was a specific incident or anything that brought on the back pain. He responded that it was mainly from manhandling the parts of the aircraft and the aircraft. He described the tendency to slip because of the steel horseshoes on his boots and the concrete floor. When pressed as to whether there was any specific incident that he could identify, he responded that there were several of them. There wasn't one. He referred to having aches and pains all the time. He said there was no such thing as time off work and he was not given medication for the back pain. He said that he would have gone to the hospital and had liniment rubbed on his back and heat treatment thirty or forty times, but each time he went straight back to work after that.

* On 14 September 1999, the applicant saw Dr Sime, another medical practitioner. In giving a history to this medical practitioner, he described the work he was doing in Japan. He referred to working on a concrete floor involving slipping and sliding. He said his back was bothering him and he would seek medical treatment. He was using electric pads each time his back went.

* On 2 September 1999, the applicant gave a history to Dr Hall, another medical practitioner. He described a sudden pain in his low back while pushing an aircraft with twenty or thirty men. He denied any prior history of low back pain. He said he attended the medical centre at the time and was told to take it easy and that he had experienced back pain ever since. For the first three or four days, he had to use a heat pad on a daily basis to obtain some relief.

20 The Tribunal concluded that there was "considerable discrepancy and conflict and inconsistency in the various statements and evidence of [the applicant], and between his evidence to this Tribunal and to the VRB." Because of this, the Tribunal sought the applicant's official medical records. Those documents contained no record of the applicant ever seeking medical treatment for injury to the lumbar spine. They did not mention any back problems of any description at all, despite being quite full and detailed. They included attendances for a number of different conditions including sprained ankle, swollen finger, painful swelling of the left tibia and an infected great toe. They also recorded that he was fit when posted back to Australia in December 1948.

21 The Tribunal in its reasons referred to Harris v Repatriation Commission [2000] FCA 873 (2000) 31 AAR 270 and to Deledio. It repeated that the hypothesis relied on by counsel for the applicant was that referred to in cl 5(g) of the SoP. It referred again to the definition of "trauma to the lumbar spine". It said that the incident described in the trauma statement would probably satisfy the SoP, but the applicant had said it was not an accurate statement. It did not therefore provide material raising or pointing to any hypothesis.

22 The Tribunal observed that the history obtained by Dr Hall of an incident of acute back pain did not satisfy the requirement that the material point to acute signs and symptoms of pain, tenderness and altered mobility or range of movement lasting for a period of at least a week. The history was of the applicant having to use a heat pad to obtain relief for three to four days.

23 After referring to Harris and Connors v Repatriation Commission [2000] FCA 783 (2000) 59 ALD 61, the Tribunal said:

"In this matter the material was very confusing. It is hard to know what was pointed to or raised. But there was no material at all pointing to `acute symptoms and signs of pain, tenderness and altered mobility or range of movement of [the lumbar] spine . . . . where such acute symptoms and signs last for a period of at least one week immediately after the injury'. There was also no medical evidence relating to the extent of injury and treatment.

Mr Knight's evidence was that he had ongoing pain which did not prevent him returning to his normal duties after some heat treatment. That does not satisfy the requirement of acute symptoms and signs of pain, nor was there any evidence pointing to `acute symptoms and signs of altered mobility or range of movement'.

Thus we conclude, as did the Tribunal in Connors and Harris, that the material before the Tribunal does not point to a reasonable hypothesis consistent with the lumbar spondylosis SoP connecting Mr Knight's lumbar spondylosis with the circumstances of his particular service."

The application of section 9

24 The first submission made on behalf of the applicant was that the Tribunal had failed to apply s 9 of the VE Act. The argument was that the causal relationship between the applicant's lumbar spondylosis and his operational service was required to be assessed by reference to this section. The Tribunal was bound to identify whichever paragraph of s 9(1) was applicable to the claim. The Tribunal's approach to the question of causation might be different, depending upon which paragraph or paragraphs it identified. By not identifying one or more of the paragraphs, the Tribunal made an error of law because its examination of possible hypotheses against the SoP lacked a clear point of reference.

25 It is true that s 9 represents the starting point in the process of reasoning that connects an injury with war service, if such a connection can be made. It is not the case, however, that a decision-maker is in every case bound to refer to s 9, or to identify a particular paragraph as providing the necessary connection. In the present case, the Tribunal was plainly aware that the applicant was claiming that heavy physical work during his operational service caused or contributed to his lumbar spondylosis. The Tribunal was aware of the nature of the claim. As I have said, the applicant was represented by counsel in the hearing before the Tribunal. A number of facts were agreed, and the Tribunal correctly identified the outstanding issue to be determined as the question whether the lumbar spondylosis was a war-caused disease. Further, counsel who appeared for the applicant before the Tribunal based his entire case on the one factor in cl 5(g) of the SoP. It was not for the Tribunal to embark on its own investigation of the applicant's case, when the applicant was represented by counsel who had elected to put the case in this fashion. The Tribunal was entitled to assume that counsel had explored all of the possible ways in which the applicant's case might have been put. No doubt, there might be cases in which the Tribunal would be acting properly if it inquired of counsel why no reliance was being placed on some provision which, in the Tribunal's view, might be fairly open for the benefit of an applicant for review. In doing so, the Tribunal would undoubtedly be acting properly. It is difficult to see, however, that the Tribunal can be obliged by law to make such an inquiry, especially when no obvious alternative method of putting the case exists (and none was advanced by counsel for the applicant before the Court).

26 In the context of this case, the Tribunal acted perfectly properly in addressing itself to the determination of the issue advanced by counsel for the applicant. Its reasons demonstrate that the Tribunal was perfectly aware of the requirement to establish the requisite connection between the applicant's lumbar spondylosis and his war service. Specific mention of any provision of s 9 was not required. There was certainly no error of law on the part of the Tribunal in failing to mention s 9.

The application of section 119

27 It was argued on behalf of the applicant that the Tribunal failed to act in accordance with s 119 of the VE Act and that this led to error of law. In fact, the argument seemed to be that the Tribunal's reasons did not disclose that it gave consideration to the effects of the passage of time on the powers of recollection of the applicant. Counsel for the applicant before the Court accused the Tribunal of setting out to discredit the applicant by focusing attention on inconsistencies in the evidence, and of taking a strict legal approach, which offended s 119. It was conceded that s 119 cannot override other provisions of the Act, but counsel for the applicant contended that the section has more force in relation to subordinate legislation, such as the SoP.

28 The argument on this point seeks to turn a negative into a positive. The fact that the Tribunal did not specifically state that it was applying s 119(1)(h)(i), by taking into account the passage of time, does not mean that it did not do so. In its reasons, the Tribunal was at great pains to set out all of the evidence from which a hypothesis connecting the lumbar spondylosis with the applicant's war service, and falling within the relevant provision of the SoP, might be derived. Far from seeking to discredit the applicant, the Tribunal took the initiative in seeking agreement of the parties to allow the Tribunal to look at the applicant's medical records. It is apparent that it did this for the purpose of seeing whether the medical records disclosed anything that would assist the applicant to establish the necessary hypothesis. In fact, the medical records did not provide such assistance.

29 A similar argument was put to the Full Court in Repatriation Commission v Bey (1997) 79 FCR 364. At 373 - 374, Northrop, Sundberg, Marshall and Merkel JJ said:

"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) 48 FLR 198 at 209; Re McKay and Repatriation Commission (1988) 8 AAR 215 at 222; Kumar v Immigration Review Tribunal (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."

30 To the list of authorities referred to by their Honours might be added those gathered in the judgment of Wilcox J in Kumar v Immigration Review Tribunal (1992) 36 FCR 544 at 554 - 556, as well as Repatriation Commission v Flentjar (1997) 47 ALD 67 at 72 - 73, Thanh Phat Ma v Billings (1997) 71 FCR 431 at 440 and Grundman v Repatriation Commission [2001] FCA 892 at [33]. Not only does s 119(1)(g) not override the provisions of the Act, it does not override the provisions of an instrument made under statutory authority, including the SoP.

31 An examination of the Tribunal's reasons in the present case does not support the proposition that the Tribunal was seeking to discredit the applicant, or that it was taking a "strict legalistic" approach, as counsel for the applicant submitted. Rather, the Tribunal undertook a careful examination of all the material that it had available to it, and of the medical records that it obtained, to see if it could find the necessary hypothesis anywhere in the material. The fact that it drew attention to inconsistencies as it recounted the evidence does not suggest a process of discrediting. It suggests that the Tribunal found its task of trying to find the material that pointed to the necessary hypothesis very difficult. It is clear that, if such a hypothesis could have been derived from any of the material considered by the Tribunal, the Tribunal would have so found, in accordance with its statutory obligation.

The application of section 120

32 Counsel for the applicant argued that the Tribunal had failed to apply s 120(1) and (3), by failing to appreciate that all that was required was a reasonable hypothesis connecting lumbar spondylosis with the applicant's war service. According to the submission, the Tribunal had rolled into one the two separate stages identified as stage one and stage three by the Full Court in Deledio. The Tribunal engaged in a fact-finding exercise, evaluating and discarding the material supporting the applicant's hypothesis on the basis of inconsistencies within it. If it did not roll up the two separate stages, it made no finding on the first stage and, proceeded to the second stage and failed to deal properly with the third stage. If it reached the fourth stage, it was required to reject any evidence supporting the applicant's hypothesis beyond reasonable doubt. In particular, the submission made reference to evidence given by the applicant himself, and by Dr Hall, which counsel for the applicant submitted must have been rejected by the Tribunal, or else the Tribunal would have been obliged to find that the particular evidence pointed to a reasonable hypothesis that satisfied the relevant provision of the SoP. This was characterised as a misapprehension of the Tribunal's function or as failure to take into account a material fact, and therefore as an error of law.

33 There is no doubt that the Tribunal set out accurately in its reasons for decision the law that it was required to apply. It summarised the effect of s 120(1) and (3) and of s 120A. It set out the relevant passage from the judgment of the Full Court in Deledio, which I have quoted above. It correctly identified the issue before it as "whether there is material before the Tribunal pointing to the existence of the factor of `trauma to the lumbar spine', as defined in the SoP, during service." The submission on behalf of the applicant must therefore be that, having stated the law correctly and identified the issue before it, the Tribunal failed to perform the function that it stated it was performing. There is no indication in its reasons that it did so. Its reference to inconsistencies in the evidence, whilst summarising the evidence, did not indicate that the Tribunal engaged in fact-finding at the first stage. It certainly expressed no findings of fact. Its reasons contain no evaluation of the material placed before it and no indication that it discarded any. Having examined the material before it, the Tribunal found that none of it disclosed a reasonable hypothesis that fitted the "template" to be found in the SoP. To the extent to which the Tribunal rolled stages one and three of the Deledio process into a single exercise, it was legitimate for it to do so. There was no point in the Tribunal making a finding that the material before it disclosed a reasonable hypothesis if such hypothesis did not fit the "template" in the SoP. The Tribunal searched for a hypothesis that did fit. The Tribunal failed to find such a hypothesis in the material.

34 To the extent to which the applicant's submission pointed to particular evidence, it invited the Court to engage in a fact-finding process. Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) confines an appeal from the Tribunal to this Court to a question of law. If there were an error of fact, in that the Tribunal took the mistaken view that the material did not disclose a reasonable hypothesis when in fact it did, the Court could not correct that mistake unless it involved an error of law. It would only involve an error of law if it were shown that the Tribunal applied the wrong test and thereby misdirected itself in law. Such an argument is not made out by starting with the conclusion that the Tribunal made a wrong finding, and working backwards from that conclusion, as the applicant's submission attempted to do. The Tribunal took account of all of the material before it, except the trauma statement, which the applicant and his own counsel had disavowed. The Tribunal did not fail to take into account any material fact. It simply found that the material before it disclosed no reasonable hypothesis that could fit within the relevant template in the SoP. There was no error of law in its approach.

35 Counsel for the applicant also contended that, contrary to s 120(6), the Tribunal placed an onus on the applicant. Nothing in the Tribunal's reasons for decision offers any support to this contention. All that the Tribunal did is to find that the material before it disclosed no reasonable hypothesis of the relevant kind.

The application of section 120A

36 Counsel for the applicant also contended that the Tribunal failed to apply s 120A. The argument was based on the proposition that s 120A required reference to s 120(3) and that the Tribunal did not apply s 120(3) and therefore did not apply s 120A.

37 As I have said, the Tribunal set out the effect of the relevant provisions of ss 120 and 120A and the relevant passage from Deledio. There is no indication that it failed to appreciate that it was applying these provisions or that it failed to apply them correctly. With the help of counsel who appeared for the applicant at the Tribunal, the Tribunal correctly identified the issue before it.

The primacy of section 9 and section 120

38 Counsel for the applicant argued that the Tribunal failed to recognise the primacy of s 9 and s 120(1) and (3) of the VE Act. The submission was based on the proposition that the Tribunal had focused its attention on the SoP, and had thereby "disregarded the primacy" of the provisions referred to. As I have said, the Tribunal, with the assistance of counsel who appeared for the applicant, identified correctly the issue before it. It was unnecessary for it to discuss in detail, or at all, the effect of s 9 or of any subsection of s 120.

Requiring medical evidence

39 According to the next submission of counsel for the applicant, the Tribunal erred in law in requiring medical evidence relating to the extent of the injury. This appears to have been based on a statement in the reasons for decision of the Tribunal that there was "no medical evidence relating to the extent of injury and treatment." This statement was made in the context of an examination of the terms of the definition of "trauma to the lumbar spine" in the SoP, and particularly the words "acute symptoms and signs of pain, tenderness and altered mobility or range of movement ... where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs." The Tribunal was merely pointing out the absence of material that would point to a hypothesis that acute symptoms and signs lasted for a period of at least one week immediately after an injury. It was not attempting to impose any requirement that there be medical evidence. It was not imposing any onus. Nor was it drawing any adverse conclusion on the facts. It was simply pointing to the absence of material of a particular kind.

The interpretation of the SoP

40 Counsel for the applicant contended that the Tribunal had misconstrued the definition of "trauma to the lumbar spine". The contention focused on the words "acute symptoms and signs of pain, tenderness and altered mobility or range of movement". The argument was that the adjective "acute" qualified only the noun "pain", leaving the other elements unqualified. The argument is itself a misconstruction. The adjective "acute" plainly qualifies both of the nouns "symptoms" and "signs". In turn, those nouns are related to each of the elements following, namely "pain", "tenderness", "altered mobility" and "[altered] range of movement". It is true, as counsel for the applicant put, that there cannot be "acute range of movement". This is not to the point in construing the words of the SoP.

41 In Harris v Repatriation Commission [2000] FCA 873 (2000) 31 AAR 270, Finn J dealt with the same argument. At [31], his Honour said:

"Insofar as the trauma component of those factors is concerned this requires (inter alia) that the injury in question caused the development of `acute symptoms and signs' of (i) pain, (ii) tenderness and (iii) altered mobility or range of movement. Though the preposition `of' only precedes the word `pain' in the SoP's definition I am satisfied that the definition is to be read as if `of' preceded the words `tenderness' and `altered' as well. The applicant has submitted to the contrary, contending that the definition is to be read as if it referred to `acute symptoms and signs of pain and/or tenderness, and [meaning "together with"] altered mobility' etc. When one has regard both to the balance of the sentence in which the definition appears (and particularly to the words `and where such acute symptoms and signs last for a period of at least one week') and to what, ordinarily, would be the work done by the preposition `of' in a sentence constructed in the manner of the definition, the definition must be construed as I have proposed. I should add that the construction is the one propounded by the respondent."

42 The same argument was put to the Full Court on appeal in Harris v Repatriation Commission [2000] FCA 1687 (2000) 32 AAR 84. At [51] - [52], the Full Court said:

"In our view, the construction adopted by the primary judge accords with the ordinary meaning of the words in the definition. It was not necessary for the drafter of the definition to repeat the preposition `of' before `tenderness' and `altered mobility' in order to arrive at the meaning conveyed by the ordinary rules of grammar to which his Honour gave effect. No doubt some might have inserted a so-called `Oxford' comma after the word `tenderness' but its absence is immaterial. The primary judge's construction is supported by the reference in the same sentence to `such acute symptoms and signs' lasting for a period of a week after the injury. The natural reading of that reference is that the acute symptoms and signs of pain, tenderness and altered mobility must have lasted for at least a week.

The expression `acute symptoms and signs of' can readily be applied to the concept of `altered mobility or range of movement'. The dictionary definitions show that the expression requires that there be an indication of, or phenomenon evidencing altered mobility or range of movement. Bearing in mind that the SoP was concerned with `medical-scientific evidence' (s 196B(2)), the primary Judge's conclusion is reinforced by medical definitions."

Notwithstanding what the Full Court said in Harris, the argument was put again in Arnott v Repatriation Commission [2001] FCA 262 (2001) 32 AAR 445. At [28] - [32], Merkel J, with whom Spender and Marshall JJ agreed, followed Harris in rejecting the argument.

43 The argument put by counsel for the applicant in this respect is so plainly wrong that it is legitimate to be critical of counsel for putting it, especially in the light of two Full Court judgments, which are binding on a single judge, inconsistent with it. The argument was bound to fail.

The requirement of "acute" symptoms and signs

44 Counsel for the applicant contended that the Tribunal was wrong in determining that ongoing pain could not satisfy the requirement that there be "acute" symptoms and signs of pain. The Tribunal's reasons for decision do not show that it excluded any notion of ongoing pain from the definition of "trauma to the lumbar spine". Rather, the Tribunal decided that the material before it concerning the ongoing pains suffered by the applicant did not satisfy the requirement of the definition that there be "acute symptoms and signs of pain". In Harris at [32], Finn J referred to a dictionary definition of "acute", suggesting that the symptoms and signs required be "sharp" or act "keenly on the senses". There is nothing to show that the Tribunal did not apply the word "acute" in this sense in the present case. In reasoning as it did, the Tribunal in the present case was not wrongly requiring evidence of acute symptoms and signs. Nor was it determining that ongoing pain could not meet the requirement of "acute".

Assuming the existence of a fact

45 In its reasons for decision, the Tribunal quoted a passage from the judgment of Kenny J in Connors v Repatriation Commission [2000] FCA 783 (2000) 59 ALD 61 at [15] - [17]:

"In this case, the AAT correctly proceeded on the basis that, in order for Mr Connors to succeed, the hypothesis raised by the material before it had to fit one of the templates set out in the relevant SoP. The AAT was not (as it itself recognised) engaged in fact-finding.

Mr Connors relied (and continues to rely) on a template that include the elements set out in cl 5(g) of the SoP: that is, his suffering a trauma to the lumbar spine (as defined in cl 7) before the clinical onset of lumbar spondylosis. A question for the AAT was, therefore, whether the material before it raised (or pointed to) Mr Connors' suffering a physical injury to the lumbar spine that caused the development, within 24 hours, of `acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine' which lasted for at least a week immediately after the fall at Ravenshoe in 1945.

As it turned out, this was the principal area of contention before the AAT. Mr Connors' evidence was that he could not recall suffering pain in the lumbar spine region after the fall. Various factors were advanced on his behalf to explain this lack of recollection, but none pointed affirmatively to his suffering pain at that time. It was, therefore, plainly open to the AAT to decide that the hypothesis advanced by him was not upheld by the SoP, since there was no material pointing to the existence of pain following the injury, which was an essential element of the SoP's definition of `trauma to the lumbar spine'."

46 As the Tribunal pointed out in its reasons for decision, Kenny J then proceeded to consider a submission based on Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 at 569 - 570 and Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 and Repatriation Commission v Bey (1997) 79 FCR 364 that a hypothesis may assume the existence of facts and that such an assumption does not make the hypothesis unreasonable. The Tribunal quoted again from Connors at [19]:

"The observation that each element need not be established by the evidence is, as I read it, simply a restatement of the accepted proposition that determining the reasonableness of a hypothesis does not involve making findings of fact: see Deledio at 412."

47 Counsel for the applicant submitted that Connors is inconsistent with Bushell and Byrnes and that Connors proposed a test more onerous to the applicant than those cases required.

48 There is no doubt that a hypothesis may assume the existence of a fact or facts and be reasonable, for the purposes of s 120 and s 120A of the VE Act. To satisfy the provisions of those sections, however, it is still necessary that there be material before the decision-maker pointing to such a hypothesis. The assumption of facts does not extend to assuming the occurrence of events which, if they had occurred, and had been known to the decision-maker, would have caused the material to point to a reasonable hypothesis. In other words, deficiencies in the material cannot be made good by the assumption, in favour of a veteran, that there must have been a reasonable hypothesis. The material before the decision-maker must point to such a hypothesis. The Tribunal's finding in the present case must be taken to express the view that the material did not even point to a hypothesis that was based on one or more assumed facts.

49 Counsel for the applicant also submitted that the Tribunal was required to determine whether there was in existence a more favourable statement of principles for lumbar spondylosis. He suggested that there was, and that the Tribunal ought to have applied it.

50 It seems, as a result of the decisions of the respective Full Courts in Repatriation Commission v Keeley [2000] FCA 532 (2000) 98 FCR 108 and Repatriation Commission v Gorton [2001] FCA 1194 (2001) 33 AAR 370, that there are circumstances in which the Tribunal is obliged to look at more than one statement of principles, and to apply the more favourable one. In the present case, however, no such obligation can have arisen. There was no indication given to the Tribunal that there existed another relevant statement of principles, more favourable to the applicant, than the SoP to which the attention of the Tribunal was directed. Although counsel for the applicant suggested to the Court that there was a more favourable statement of principles, no such document was produced to the Court. Further, as I have said, the applicant was represented by counsel at the hearing in the Tribunal. As the Tribunal recorded in its reasons for decision, counsel for the applicant relied on par 5(g) in the SoP. He relied upon that alone. In the circumstances, the Tribunal was under no obligation to ignore the issue placed before it by counsel for the applicant and to seek to ascertain if there existed some other basis on which the applicant's case might be put.

The application of Deledio

51 Counsel for the applicant argued that the Tribunal wrongly found against the applicant because it searched for a hypothesis that was an exact fit with the template laid down in the SoP, rather than attempting to ascertain whether the template upheld the hypothesis. The Tribunal did not operate in any way in terms of this distinction. It made no comparison based on precise use of language. It simply found that the material failed to point to a hypothesis that contained all of the elements required by the template.

52 Counsel for the applicant also complained that the Tribunal misapplied Deledio by failing to appreciate that, if there was a dispute about a hypothesis, it had to be rejected beyond reasonable doubt if it were to be discarded. I have already dealt with this argument in another form in these reasons for judgment. The Tribunal was not attempting to find the facts. It was only examining the material before it for the purpose of determining whether there existed a hypothesis satisfying the requirements of the SoP. It found that the material did not point to any such hypothesis.

Conclusion

53 The applicant has therefore failed to establish that the Tribunal made any error of law in rejecting his claim. The application must therefore be dismissed. Costs should follow the event, so that the applicant must be ordered to pay the respondent's costs of the proceeding.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated: 15 February 2002

Counsel for the Applicant:	D De Marchi
Solicitor for the Applicant:	De Marchi & Associates
Counsel for the Respondent:	P J Hanks QC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 September 2001
Date of Judgment:	15 February 2002