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Federal Court of Australia - Full Court Decisions |
Last Updated: 24 November 2006
FEDERAL COURT OF AUSTRALIA
Repatriation Commission v Patterson [2006] FCAFC 165
DEFENCE AND WAR –
veterans’ entitlements – hypertension – whether reasonable
hypothesis connecting hypertension to eligible
war service
PRACTICE
AND PROCEDURE – appeal from Administrative Appeals Tribunal –
notice of contention – construction of – notice of contention
not
dealt with by primary judge – whether material before Tribunal capable of
raising a reasonable hypothesis – whether
notice of contention involved a
reconsideration of the whole of the evidence before the Tribunal
Held: On its proper construction,
the notice of contention invited a reconsideration of the whole of the evidence
before the Tribunal.
It was eminently open to the trial judge to remit that
exercise to the Tribunal.
Veterans’
Entitlements Act 1986 (Cth), ss 9, 13, 120, 120A, 196B
Administrative
Appeals Tribunal Act 1975 (Cth), s 44
Federal Court Rules, O 53
rule 13
Repatriation Commission v
Deledio [1998] FCA 391; (1998) 83 FCR 82 applied
REPATRIATION
COMMISSION v DAVID MITCHELL PATTERSON
VID 611 OF
2006
KIEFEL, SUNDBERG AND EDMONDS JJ
24 NOVEMBER
2006
MELBOURNE
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The orders made by the primary judge be varied by adding an order that the appellant’s Notice of Contention be dismissed.
3. The appellant pay the respondent’s costs of the appeal.
Note: Settlement and
entry of orders is dealt with in Order 36 of the Federal Court Rules.
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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BETWEEN:
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REPATRIATION COMMISSION
Appellant |
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AND:
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DAVID MITCHELL PATTERSON
Respondent |
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JUDGES:
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KIEFEL, SUNDBERG AND EDMONDS JJ
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DATE:
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24 NOVEMBER 2006
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PLACE:
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MELBOURNE
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REASONS FOR JUDGMENT
Background
1 Mr David Patterson served as a gunner supporting field infantry in the Australian Army for approximately nine months during the Vietnam War in 1971. His role largely took place in Nui Dat and Vang Tau, where he ate meals provided by the Army and also had access to the Army canteen. During this time, he started to consume beer and salty snack foods on a regular basis. He says this consumption was brought about by the stress and tension of his service work and by the hot and humid conditions in Vietnam. His consumption of alcohol and salted foods continued after his wartime service ended.
2 In 1978 Mr Patterson was diagnosed with hypertension. There are many factors that may lead to the development of hypertension. These include obesity, excessive alcohol consumption and excessive salt consumption.
3 Although Mr Patterson’s weight at the time of his discharge from the army was similar to that when he enlisted, he gained weight after his period of service in Vietnam and by the time of his diagnosis he weighed 105 kg, which he considered to be obese. He says that his weight gain was linked to his service in Vietnam because, other than the alcohol and salt consumption, his diet and levels of exercise were fairly similar to what they were prior to his service.
4 Before going to Vietnam, Mr Patterson was a light social drinker. In Vietnam, when not on duty, he would consume one to two small cans of full strength beer daily. It helped him to cope with the hot and sweaty weather. Upon return to Australia he continued to drink beer almost daily. He estimated that by 1978, when he was diagnosed with hypertension, he consumed two to three glasses of beer with a counter meal lunch two to three times a week; a further three to five glasses after work on a Friday; a large bottle once or twice a week in the evenings; and a large bottle on one or both days on the weekend. In total, he estimated that his alcohol consumption was approximately 222.5 grams per week.
5 Mr Patterson’s wife gave evidence that her husband had always liked salty foods. His salt intake appears to have been exacerbated during his time in Vietnam, where he started consuming potato chips, salted peanuts and salted cashews in the Army canteen. Initially, this consumption was as an accompaniment to drinking beer, but he subsequently took to consuming these snack foods without beer and on a more regular basis. Following his service in Vietnam, Mr Patterson started adding more salt to meals because food tasted bland without it. As well as the snack foods, he (or his wife) would add a teaspoon of salt to each pot of food and he would add further salt at the table. He was also fond of a salted vegetable broth, soy sauce on chiko rolls, cooked breakfasts and other salty foods. He estimated that on average he consumed more than 14 grams of salt each day by 1978.
Legislation and Statement of Principles
6 Section 13(1) of the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’) provides that where a veteran is incapacitated from a war-caused injury or war-caused disease, the Commonwealth is liable, subject to the Act, to pay a pension to the veteran. It is not disputed that Mr Patterson is a veteran for the purposes of the Act.
7 Section 9(1)(b) of the Act provides that a veteran is taken to have suffered a war-caused injury or contracted a war-caused disease if the injury or disease "arose out of, or was attributable to, any eligible war service rendered by the veteran". Mr Patterson’s service in Vietnam qualifies as eligible war service.
8 Section 120 of the Act concerns matters of proof. Sub-section (1) provides that in determining whether an injury or disease relates to the service of the veteran, the Repatriation Commission (‘Commission’) must determine that the injury or disease relates to the service of the veteran unless satisfied beyond reasonable doubt that the injury or disease does not relate to that service. Sub-section (3) provides that in applying sub-section (1), the Commission will be satisfied beyond reasonable doubt that the injury or disease does not relate to the service if, after consideration of the whole of the material before it, is of the opinion that that material does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the service rendered by the veteran.
9 Section 120A of the Act concerns the reasonableness of a hypothesis connecting the injury or disease with the circumstances of the service. Sub-section (3) provides that, for the purposes of section 120(3), a hypothesis is only reasonable if there is in force either a Statement of Principles or a determination by the Commission that upholds the hypothesis.
10 There is, and was at all times from the time of the Commission’s decision, a Statement of Principles concerning hypertension. The Statement of Principles sets out, in clause 5, a list of 30 factors relevant to hypertension. The first three factors are relevant to Mr Patterson. They are:
"(a) being obese at the time of the clinical onset of hypertension; or
(b) consuming an average of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week at the time of the clinical onset of hypertension; or
(c) ingesting at least 12 grams (200 mmol) of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension."
Clause 4 of the Statement of Principles provides that "at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person".
11 By clause 8 of the Statement of Principles "‘alcohol’ is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink". The same clause defines salt supplements as "salt added to food when cooking or eating, or salt contained in salt tablets".
12 The claim in respect of the first of these factors – the ‘obesity hypothesis’ – was resolved adversely to Mr Patterson by the primary judge, and no appeal has been brought from that decision. We are therefore only concerned with what his Honour called the ‘alcohol hypothesis’ and the ‘salt hypothesis’.
13 In Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 97–98, the Full Court set out the approach that the Administrative Appeals Tribunal (‘the Tribunal’) should take in determining whether a reasonable hypothesis is raised. The Court said:
"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 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 [a Statement of Principles] determined by the Authority under s 196B(2) or (11). If no such [Statement of Principles] is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3 If [a Statement of Principles] 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 [Statement of Principles]. 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 claim and the decision of the Tribunal
14 On 14 August 2003 Mr Patterson lodged his claim with the Commission. In it he alleged that he suffered from hearing loss, tinnitus, type 2 diabetes and hypertension, and that all were war-caused. A delegate of the Commission determined that a number of these conditions were war-caused but that the hypertension was not. Mr Patterson sought review of the delegate’s decision on hypertension from the Veterans’ Review Board, which upheld the delegate’s decision. Mr Patterson then sought review from the Tribunal.
15 After reciting the evidence and the issues, the Tribunal turned to the four-step Deledio test. It concluded that the first step was satisfied since, after consideration of all relevant matters, the material before it pointed to a hypothesis connecting the hypertension with Mr Patterson’s service in Vietnam.
16 The Tribunal then noted that there was in existence a Statement of Principles relevant to the hypothesis, the second step in Deledio. It was the Statement of Principles we have referred to at [10].
17 In respect of the third step in Deledio, the Tribunal considered each of the three hypotheses in turn. For the ‘obesity hypothesis’, it decided that the hypothesis raised was reasonable. The Tribunal said that it "accepts that the applicant was obese at the time of the clinical onset of hypertension. In the circumstances there is material or evidence pointing to the hypothesis being a reasonable one, and it is consistent with the template in the [Statement of Principles] (Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581), and the applicant satisfies the third step."
18 For the ‘alcohol hypothesis’, the Tribunal concluded that "there is no material or evidence pointing to the hypothesis being a reasonable one, and it is not consistent with the template in the [Statement of Principles] concerning hypertension (Hill)." In reaching this conclusion, the Tribunal said that it took into account the following matters:
• Mr Patterson’s estimates of his alcohol consumption in 1978;
• evidence of Dr Strauss, a consultant and occupational psychiatrist, who described Mr Patterson’s alcohol consumption and concluded that he was not a heavy drinker;
• evidence of Dr English, a nutrition consultant, who noted that Mr Patterson did not provide dietary intake data to substantiate his claim about the quantity of alcohol he consumed, nor had he completed an alcohol questionnaire;
• Mr Patterson’s evidence that after Vietnam his alcohol consumption increased;
• Mr Patterson’s statement to Dr Strauss that his alcohol consumption was never an issue for him or those around him.
The Tribunal accepted the submissions by the Commission that Mr Patterson’s estimates of his alcohol consumption were unreliable and were not supported by objective evidence.
19 For the ‘salt hypothesis’, the Tribunal reached the same conclusion as for the ‘alcohol hypothesis’. It did so after taking into account the following matters:
• Mr Patterson’s estimates of his salt intake, and the assumptions underlying his figures; and
• research on salt ingestion.
The Tribunal accepted the submissions by the Commission that Mr Patterson’s estimates of his salt consumption were speculative and that his figures "as a re-construction of events that took place many years ago, are unreliable and inaccurate". The Tribunal also accepted that the term ‘salt supplement’ in the Statement of Principles excluded salty snack foods, and that therefore the amounts in Mr Patterson’s estimates that related to these items must be disregarded.
20 In respect of the fourth step in Deledio, the Tribunal recognised that it was required to make findings of fact. It only applied this step to the ‘obesity hypothesis’, which is not before the Court. It concluded that it was satisfied beyond reasonable doubt that there was no causal connection between Mr Patterson’s obesity and his operational service in Vietnam.
21 The Tribunal therefore concluded that Mr Patterson’s hypertension was not war-caused and that his claim failed.
Appeal to the Federal Court
22 Mr Patterson appealed the decision of the Tribunal to the Federal Court. As we have said, the primary judge dismissed the appeal insofar as it concerned the ‘obesity hypothesis’ for reasons that are not presently relevant. Mr Patterson has not appealed on this point.
23 In relation to the ‘alcohol hypothesis’, the primary judge concluded that the Tribunal had mis-applied the Deledio test. He said:
"The third Deledio step does not require or permit fact finding, an exercise which is confined to the fourth step. Yet it is clear this is what the Tribunal did ... The reference to Dr English’s criticism of ‘lack of dietary intake data’ suggests not only fact finding but the imposition of an onus of proof on Mr Patterson, something excluded by s 120(6). The Tribunal reached a conclusion as to what in fact Mr Patterson’s alcohol consumption was rather than enquiring whether his hypothesis was consistent with the [Statement of Principles]."
(emphasis in original)
24 His Honour reached the same conclusion in respect of the ‘salt hypothesis’. He said: "The Tribunal made a qualitative assessment of Mr Patterson’s evidence and accepted criticism of it as ‘speculative’, ‘unreliable’ and ‘inaccurate’. This is the discourse of fact finding."
25 Thus the Tribunal had failed to follow the unique requirements of the Act and had, in considering whether the hypothesis was reasonable, made impermissible findings of fact. It thus fell into error of law. His Honour allowed the appeal, set aside the Tribunal’s decision and remitted the claim to the Tribunal for further consideration according to law.
The Commission’s notice of contention
26 The primary judge had before him a Notice of Contention filed by the Commission pursuant to Order 53 rule 13(3) of the Rules of Court. The Notice informed Mr Patterson that at the hearing of the appeal the Commission would contend that the Tribunal’s decision that his hypertension was not war-caused should be affirmed on the following grounds:
"1. The material before the Tribunal was incapable of raising a reasonable hypothesis connecting the Applicant’s hypertension with the circumstances of the Applicant’s eligible war service, of the kind required by s 120A(3) of the VE Act – that is, a hypothesis that was upheld by the Statement of Principles in respect of hypertension ... (the SoP).
2. In particular, the material before the Tribunal was incapable of raising a hypothesis that would be upheld by:
...
2.2 paragraph 5(b) of the SoP – namely that the Applicant was ‘consuming an average of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week, at the time of the clinical onset of hypertension’, being consumption that was, as required by clause 4 of the SoP, related to the eligible war service rendered by the Applicant;
2.3 paragraph 5(c) of the SoP – namely, that the Applicant was ‘ingesting at least 12 grams (200 mmol) of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension’, being ingestion that was, as required by clause 4 of the SoP, related to the eligible war service rendered by the Applicant ....
3. Accordingly, on the material before the Tribunal, the Tribunal was required by s 120(3) of the VE Act to find that it was satisfied beyond reasonable doubt that the death of the late Applicant was not war-caused."
27 The death referred to in par 3 of the Notice was an exaggeration. Mr Patterson was in Court throughout the hearing at first instance.
28 In response to the requirement in Order 53 rule 13(3)(b) that the Commission give notice of the record of evidence or documents before the Tribunal relevant to its contention, the Notice concluded as follows:
"The material required for the purpose of determining the Respondent’s contention is:
(a) the written and oral evidence and other material before the Tribunal;
(b) Instrument No 35 of 2003; and
(c) Instrument No 3 of 2004."
Instrument No 35 of 2003 is the Statement of Principles referred to in grounds 1 and 2 of the Notice. Instrument No 3 of 2004 has no present relevance.
29 The primary judge said this as to the Notice of Contention:
"In an appeal limited to questions of law (Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)) it would not be appropriate to conduct in effect a rehearing of the case before the Tribunal. Mr Patterson was entitled to have his claim considered on its merits by the Tribunal in accordance with the Act."
The Commission’s appeal
30 In respect of each of the ‘alcohol hypothesis’ and the ‘salt hypothesis’, the Commission raises five grounds of appeal. The grounds allege that the primary judge failed to:
• determine the Commission’s notice of contention;
• hold that the material before the Tribunal was incapable of raising a hypothesis connecting Mr Patterson’s hypertension with his operational service, being either a hypothesis concerning alcohol consumption or salt consumption;
• hold that the material before the Tribunal was incapable of supporting an opinion on the part of the Tribunal that the material before it raised a hypothesis connecting Mr Patterson’s hypertension with his operational service;
• hold that the material before the Tribunal was incapable of raising a hypothesis connecting Mr Patterson’s hypertension with his operational service, being a hypothesis that was supported by material pointing to each element that the Statement of Principles made essential for the hypothesis to be reasonable; and
• hold that on the material before the Tribunal, an opinion that the material raised a hypothesis connecting Mr Patterson’s hypertension with his operational service was one which could not have been formed by a reasonable person who correctly understood the law under which he or she acted, and was one which was not reasonably capable of being formed.
31 The Notice of Appeal concluded by asserting that the primary judge should have dismissed Mr Patterson’s appeal on the ground that the material before the Tribunal was incapable of raising a reasonable hypothesis connecting his hypertension with his operational service, namely a hypothesis that was upheld by either par 5(b) and clause 4 or par 5(c) and clause 4 of the Statement of Principles.
32 When the appeal was called on, the Court sought the assistance of counsel for the Commission as to what it was that the Notice of Contention invited the primary judge, and this Court on appeal, to do. Counsel responded that the Notice asked the Court to assume in favour of Mr Patterson all the facts for which he contended, and to rule that even on those assumptions his case had to fail because it could not survive Deledio step three, namely the requirement in s 120(3) (as affected by s 120A(3)) that Mr Patterson’s hypothesis is reasonable only if the Statement of Principles upholds it. The Commission pointed to the words in ground 1 of the Notice – "incapable of raising a reasonable hypothesis connecting the Applicant’s hypertension with the circumstances of the Applicant’s eligible war service" and in ground 2 – "incapable of raising a hypothesis that would be upheld" by the Statement of Principles.
33 On the other hand, Mr Patterson contended that the Notice invited the Court to consider the whole of the material before the Tribunal and engage in the exercise involved in Deledio step three. That was said to be a factual enquiry of the type the Act committed to the Tribunal. Counsel drew attention to the words in the Notice – "material before the Tribunal" and the later explanation, namely "the written and oral evidence and other material before the Tribunal". It was said that resort was to be had not to Mr Patterson’s evidence taken at its highest, but to the whole of the material before the Tribunal.
34 The parties’ written outlines of argument before the primary judge were not before us. However we were provided with the transcript of argument before his Honour. In opening their cases, neither counsel referred to the Notice of Contention. The appeal was conducted on the basis upon which conventional appeals under the Act (ie without a notice of contention) are argued. It is true that towards the end of her argument the Commission’s counsel referred to the Notice, but not in a manner that throws any light on the issue now in question.
35 Certainly, the primary judge did not understand that he was being asked to treat the Notice as raising the question for which the Commission contends. His Honour referred to "the material before the Tribunal" and observed that the Notice in effect sought a rehearing of the case before the Tribunal.
The Commission’s submissions
36 The Commission’s argument before us supports the construction of the Notice for which Mr Patterson contends. In relation to the alcohol hypothesis, the Commission drew attention to clause 4 of the Statement of Principles requiring that at least one of the factors set out in clause 5 be "related to ... relevant service". It was said that "related" has the meaning given in s 196B(14) of the Act which, so far as presently relevant, provides:
"A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
...
(d) it was contributed to in a material degree by, or was aggravated by, that service; or
...
(f) in the case of a factor causing, or contributing to, a disease – it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her having rendered that service ...."
37 The Commission claimed there was no evidence that Mr Patterson’s consumption of alcohol at the time of clinical onset of his hypertension in 1978 was related to his operational service in any of the ways listed in s 196B(14). It was said to follow that it was not open to the Tribunal, as a matter of law, to find that the alcohol hypothesis was reasonable, so that the error found by the primary judge was immaterial to Mr Patterson’s prospects of success. Thus his Honour erred in not determining the Notice of Contention.
38 For the purposes of appeal, the Commission did not dispute that the material before the Tribunal was capable of establishing that Mr Patterson consumed "an average of at least 200 grams per week of alcohol ... at the time of the clinical onset of hypertension" within par 5(b) of the Statement of Principles.
39 The Commission then submitted that in his written and oral evidence and his account to Dr Strauss, Mr Patterson did not attribute his drinking after his service to his operational service or to any occurrence during that service. It was said that on the undisputed account taken by Dr Strauss, Mr Patterson was "unscathed" by his service in Vietnam, he denied having any symptoms suggestive of post traumatic shock disorder, and had never had any psychological or psychiatric problems. Dr Strauss’ opinion, which was not challenged, was that Mr Patterson did not suffer from alcohol dependence or alcohol abuse at any stage. His alcohol consumption was never an issue for him or for those around him. We were taken to what were said to be the relevant parts of Mr Patterson’s and Dr Strauss’ evidence. It is not necessary to record them.
40 Accordingly, it was submitted, assuming that the whole of the material before the Tribunal pointed to Mr Patterson consuming a weekly average of 200 grams of alcohol at the time of clinical onset of hypertension in 1978, it was incapable of pointing to that consumption being related to his operational service. It followed, it was said, that the Tribunal had to be satisfied, beyond reasonable doubt, that Mr Patterson’s alcohol consumption was not sufficient ground for determining that his hypertension was war-caused.
41 The next submission was directed to the Commission’s "opinion" the subject of s 120(3) of the Act, which is summarised at [8]. It was said that it was not open to the Tribunal to reasonably form the requisite opinion because, for the reasons already elaborated, there was no material before it that raised or pointed to a relationship between Mr Patterson’s operational service and his consumption of an average of at least 200 grams of alcohol in 1978.
42 The Commission then turned to the second limb of clause 5(b) of the Statement of Principles, which requires that the average of at least 200 grams of alcohol per week "cannot be decreased to less than an average of 200 grams per week" at the time of clinical onset of hypertension. This limb, if established, must also be related to relevant service. It was submitted that there was no material before the Tribunal pointing to Mr Patterson being unable to reduce his consumption to less than an average of 200 grams.
43 The Commission’s next submission relied on the Full Court’s observation in Bull v Repatriation Commission [2001] FCA 1832; (2001) 66 ALD 271 at [23] that
"If the tribunal examined all the material and if the tribunal followed the correct approach to its task under subs 120(3) ..., any error will be one of fact, unless the opinion was one which could not have been formed by a reasonable person who correctly understood the law under which he or she acted or unless the opinion was one which was not capable of being reasonably formed".
44 The Commission contended that because the material before the Tribunal was incapable of pointing to a relationship between Mr Patterson’s consumption in 1978 and his operational service, an opinion that the hypothesis was upheld by par 5(b) and clause 4 was one that could not have been formed by the reasonable person referred to in Bull.
45 The Commission then dealt with par 5(c) of the Statement of Principles. For the purposes of the appeal, it did not dispute that the material before the Tribunal was capable of establishing that Mr Patterson ingested at least 12 grams of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension in 1978. As with the alcohol hypothesis, the contention was that clause 4 was not satisfied. The principal submission was that Mr Patterson’s salt supplements intake was incapable of being related to his operational service in any of the ways listed in s 196B(14), because that service was nothing more than the background in which he sometimes indulged his liking of salted cashews, peanuts and potato chips, all of which he had eaten before his service. It was said that there was no material pointing to the eating of salted nuts and chips causing or contributing to increased ingestion of salt supplements. The Commission detailed the relevant parts of Mr Patterson’s evidence that were said to support this contention. It is not necessary to record them.
46 The Commission relied on evidence from Dr Kenardy that an appetite for salt is physiologically driven as a result of the body being in a state of sodium depletion. Dr Kenardy effectively ruled out any underlying mechanism of addiction, or any link between stress hormone activity and salt consumption.
47 The Commission also relied on Dr English’s opinion that a connection between Mr Patterson’s ingestion of salt supplements in 1978 and his eating salted snacks in Vietnam in 1971 was "remote speculation" and "very tenuous".
48 The foregoing account of the Commission’s submissions is taken largely from its detailed written Outline of Submissions. The Outline was amplified and modified in the course of oral argument. The account we have given takes into account the modifications.
Conclusion
49 The submissions recorded at [36] to [47] do not simply reflect the submissions made on the appeal, but those put to the primary judge. Thus, for example, the submission recorded at [36] is expressed as follows:
"The Commission contended that the whole of the material did not point to Mr Patterson’s consumption of alcohol ... being ‘related to’ his operational service ....
The Commission submitted that ... there was no evidence of Mr Patterson’s consumption ... being ‘related to’ his operational service in any of the ways listed in s 196B(14)."
50 The Commission’s submissions on the appeal, which reflect what was put to the primary judge, support the view to which we would in any event have come on the proper construction of the Notice of Contention, that the Commission was not inviting the primary judge to assume in favour of Mr Patterson all the material he propounded, and to conclude that on that material his case had to fail. Its submissions consistently relied on "the whole of the material" before the Tribunal. That is the expression used in s 120(3). It plainly means what it says. The Commission’s submissions rely in part on Mr Patterson’s evidence, but also on material it put forward itself. As appears in [39] and [47] it relies on Dr Strauss’ and Dr English’s expert opinions to answer Mr Patterson’s case. Those experts were the Commission’s witnesses.
51 A Notice of Contention will in some cases be an appropriate vehicle by which the Commission seeks to terminate a proceeding that it considers is bound to fail. Had the primary judge been entertaining a submission that invited him to assume in favour of Mr Patterson all the facts he propounded and rule that on those facts, taken at their highest, his case had to fail, his Honour may well have accepted the invitation. Since that is not what was put to his Honour, we need not express a more definite view. It would remain a matter to be decided in the exercise of his discretion. But where the invitation was, as the primary judge correctly saw it, to reconsider the whole of the material before the Tribunal, it was in our view eminently open to him to take the course described at [29], and to remit the matter to the Tribunal for further consideration according to law. We agree with his Honour that, properly understood, the Commission’s Notice of Contention sought in effect a "rehearing of the case before the Tribunal". As the primary judge said in another context, the Act, as expounded in Deledio and the various cases leading up to that decision, "mandates a unique decision-making process". The facts are for the Tribunal to decide. In a case such as the present, where, in our view, it cannot be said that there is only one possible answer to the question whether Mr Patterson’s hypertension is related to his operational service, it is not appropriate for a trial judge, and a fortiori an appellate court, to venture upon a fact finding exercise that the Tribunal has not itself carried out. It was common ground that it had failed to follow the Act’s unique decision-making process. A striking illustration of the inappropriateness of the task the Commission’s Notice of Contention sought to impose on the primary judge was the ruling for which Mr Patterson contended, that Dr English’s evidence should be rejected because she was evasive in her responses to cross-examination. The Tribunal, having heard and seen the witnesses, was in a position to decide that type of issue, which may well have turned on the demeanour of the witness. The primary judge had no such advantage.
Orders
52 The appeal should be dismissed. The orders made by the primary judge will
be varied by adding an order that the Notice of Contention
be dismissed. The
appellant must pay the respondent’s costs of the appeal.
Associate:
Dated: 24
November 2006
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Solicitor for the Appellant:
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Counsel for the Respondent:
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Solicitor for the Respondent:
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Date of Hearing:
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Date of Judgment:
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