Byrne v Repatriation Commission [2007] FCAFC 126 (13 August 2007)

Last Updated: 15 August 2007

FEDERAL COURT OF AUSTRALIA

Byrne v Repatriation Commission [2007] FCAFC 126

DEFENCE AND WAR – veterans’ entitlements – whether death of war veteran was attributable to eligible war service – where hypothesis connecting the death with the circumstances of the service rendered is accepted as reasonable the AAT must adopt it as a finding unless it is disproved beyond reasonable doubt – possibility that veteran’s coronary artery disease impaired his ability to survive in the water and contributed to drowning was not considered by AAT – AAT erred in law in rejecting hypothesis – appeal allowed – matter remitted to the AAT to reconsider hypothesis


Administrative Appeals Tribunal Act 1975 (Cth), s 44
Veterans’ Entitlements Act 1986 (Cth), ss 8, 120, 120A, 120B, 196B


Byrne v Repatriation Commission [2006] FCA 1667 reversed
Bull v Repatriation Commission [2001] FCA 1834; (2001) 188 ALR 756 referred to
Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 cited
Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 cited
Collins v Administrative Appeals Tribunal [2007] FCAFC 111 referred to
Repatriation Commission v Codd [2007] FCA 877 referred to
Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 referred to
Repatriation Commission v Hancock [2003] FCA 711; (2003) 37 AAR 383 referred to
Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473 referred to
















MARJORIE BYRNE v REPATRIATION COMMISSION
NSD 55 OF 2007

GYLES, EDMONDS AND BUCHANAN JJ
13 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 55 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MARJORIE BYRNE Appellant
AND:	REPATRIATION COMMISSION Respondent

JUDGES:	GYLES, EDMONDS AND BUCHANAN JJ
DATE OF ORDER:	13 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed.
2. The orders made on 5 December 2006 in the primary proceeding be set aside.
3. In lieu thereof, the decision of the Administrative Appeals Tribunal be set aside and the matter be remitted to the Tribunal to be heard and determined according to law.
4. The respondent pay the costs of the appellant of the appeal and of the primary proceeding.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 55 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MARJORIE BYRNE Appellant
AND:	REPATRIATION COMMISSION Respondent

JUDGES:	GYLES, EDMONDS AND BUCHANAN JJ
DATE:	13 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

GYLES J:

1 One can only have sympathy for the members of the Administrative Appeals Tribunal ("the Tribunal") who are called upon to apply ss 120, 120A and 120B of the Veterans’ Entitlements Act 1986 (Cth) ("the Act") as they have been interpreted by the authorities of the High Court and this Court. The reasoning required would confuse most philosophers. The Tribunal was placed in a particularly difficult situation in this case. Mr Byrne, the deceased husband of the appellant, last served in the Australian Army on 26 February 1946. In 1962, some 16 years or so later, he died while on a fishing trip with two friends. The Tribunal considered the issues in the first half of 2006. Apart from lay evidence, it was confronted with evidence from six medical practitioners, none of whom had any first hand knowledge of the matter, in addition to the Coroner’s report and the contemporaneous reports of a treating doctor.

2 The case sought to be made for the appellant before the Tribunal was that Mr Byrne’s death was due to a fatal cardiac arrhythmia due to ischaemic heart disease ("IHD") and consequent death before drawing breath underwater. In other words, he had a cardiac arrest and did not drown. That case failed. Counsel for the appellant proposed two hypotheses in the event that the "kind of death" was found to be drowning (as it was). There was (and has been) no discussion in this case as to whether "drowning" is a "kind of death" referred to in s 120A(4) (cf Repatriation Commission v Codd [2007] FCA 877). The first hypothesis can be put aside. The second hypothesis was that Mr Byrne suffered from war caused IHD that impaired his ability to survive being thrown into Tantagara Dam after his boat had capsized (leading to his death by drowning). There is a Statement of Principles concerning IHD (s 120A(3)(a) of the Act). The Tribunal was satisfied that he did not suffer from IHD and that matter is not being further pursued in this appeal. It was only in the course of final submissions that counsel raised a third hypothesis, described as "that CAD [coronary artery disease] impaired Mr Byrne’s ability to survive once he was in the water". The Tribunal found that this was reasonable as required by s 120(3) of the Act. It is the treatment of this hypothesis that has led to the difference of opinion between Buchanan J (whose judgment I have had the advantage of reading in draft) and the primary judge. As the hypothesis was only raised in final address, the evidence which had been tendered was not directed to that issue. This has further confused the situation.

3 Whilst I am sympathetic to the need to understand a tribunal’s reasons in a common sense fashion as explained by the primary judge, the analysis by Buchanan J convinces me that the Tribunal proceeded upon the basis that the hypothesis it had found to be reasonable was disproved beyond reasonable doubt by the finding that Mr Byrne drowned rather than suffered a cardiac arrest. I agree with Buchanan J that the Tribunal did not address the question as to whether coronary artery disease impaired his ability to survive once he was in the water, so contributing to the drowning. The appeal must therefore be allowed.

4 In my opinion, the matter should be remitted to the Tribunal for decision. This is an appeal on a question of law (s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth)). I do not consider that this Court can, or should, make factual findings pursuant to s 44(7) in this appeal based upon snippets of evidence which were not directed to the issue in question. The Tribunal could well take the view that, if the hypothesis in question is to be properly considered, it should receive fresh evidence directed to it. Indeed, there should be no limits upon the scope of the remitted hearing, save that it should be confined to consideration of the third hypothesis (or any appropriate revision of it).

5 I should say that I have a fundamental difficulty with the third hypothesis as framed. The starting point in s 120(1) is that the claim for a pension in respect of the death of the veteran relates to the operational service rendered by the veteran. Section 120(3) again refers to death of a person "related to service rendered by the person" and the hypothesis required to be raised by that section is one "connecting the ... death with the circumstances of the particular service rendered by the person". This death by drowning as such had nothing whatever to do with operational service or service rendered by Mr Byrne – he drowned 16 years after leaving the Army. The alleged connecting factor is coronary artery disease because it contributed to the death. There is no Statement of Principles relating to coronary artery disease (cf s 120A(3) and (4)). The hypothesis enunciated by the Tribunal as having been raised in final address related only to the connection between coronary artery disease and the death and was not framed in relation to a connection between the disease and the particular service rendered by Mr Byrne as required by s 120(3). Indeed, the only matter referred to by the Tribunal related to the cause of Mr Byrne’s coronary artery disease was the intake of dairy products by Mr Byrne. By contrast, each of hypotheses one and two was framed by reference to a connection between service and the condition that was alleged to have contributed to the death.

6 This way of looking at things was not discussed by the Tribunal and the respondent did not raise it as a separate contention. That being so, if I had been disposed to dismiss the appeal as presented, it would not have been appropriate to raise the issue. However, as, in my opinion, the matter should go back to the Tribunal, the hypothesis to be considered by it should be re-examined with the benefit of argument from the parties to see if it complies with s 120(3) and, if so, reframed accordingly.

7 The appeal should be allowed. The orders below should be set aside. In lieu thereof the decision of the Tribunal should be set aside and the matter should be remitted to the Tribunal to be heard and determined according to law. The respondent should pay the costs of the appellant of the appeal.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated: 13 August 2007

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 55 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MARJORIE BYRNE Appellant
AND:	REPATRIATION COMMISSION Respondent

JUDGES:	GYLES, EDMONDS AND BUCHANAN JJ
DATE:	13 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

EDMONDS J:

8 I have had the advantage of reading the judgments of Gyles J and Buchanan J in draft and agree that the appeal must be allowed.

9 Whether Buchanan J is correct in his on balance conclusion (at [45]) that ‘it should be accepted that the AAT intended what it said [at [93]] to represent a rejection of hypothesis 3’ – I incline to the contrary view, namely, that hypothesis 3 was not addressed at all – it is beyond argument that the AAT did not address hypothesis 3 in the manner required by the statute and the authorities.

10 After finding, on a consideration of all the material before it, that hypothesis 3 is a reasonable hypothesis connecting Mr Byrne’s death to his war service (at [89]), s 120(1) of the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’) mandates that the AAT determine that his death is war-caused unless it satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. This involves the Tribunal in a fact finding exercise – whether there was a fact (necessary to prove hypothesis 3) which was disproved beyond reasonable doubt or a fact (inconsistent with hypothesis 3) which was proved beyond reasonable doubt. As Buchanan J says at [53]:

‘Although the AAT stated, in para 93, that coronary artery disease did not contribute to Mr Byrne’s death, if that statement was intended to refute hypothesis 3 it was ineffective to do so because the statement involves a conclusion rather than a finding of fact. No relevant fact upon which the hypothesis depends was found disproved beyond reasonable doubt. No fact inconsistent with the hypothesis was found proved beyond reasonable doubt. ’

11 I also agree with Buchanan J’s analysis of the evidence of Dr Craig and Dr Edwards and his conclusion (at [58]) that when their evidence on hypothesis 3 was not rejected it was not open to the AAT to conclude beyond reasonable doubt that hypothesis 3 was falsified.

12 While it may not be open, on the current evidence, for the AAT to conclude beyond reasonable doubt that coronary artery disease did not impair Mr Byrne’s ability to survive once he was in the water, I agree with Gyles J that the matter should be remitted to the Tribunal for decision. It would be necessary for the Tribunal to receive fresh evidence directed to hypothesis 3; that evidence need not be confined to any fact finding mandated by s 120(1) of the Act, but might extend to the issue of whether hypothesis 3 is a reasonable hypotheses, that is, the s 120(3) issue.

13 I share the concerns expressed by Gyles J at [5] of his reasons concerning hypothesis 3, in particular that the only matter referred to by the Tribunal related to the cause of Mr Byrne’s coronary artery disease was his intake of milk for his accepted ulcer condition. While Dr Edwards accepted that this would have contributed to his coronary artery disease, there is arguably no connection between that disease and his war service in terms of s 120(3) of the Act.

14 In adopting the course of remitting the matter to the Tribunal, I am mindful that it is consistent with the orders sought by the appellant in her written submissions, if not in her notice of appeal.

15 The appeal should be allowed. The orders below should be set aside and the matter remitted to the Tribunal to be heard and determined according to law. The respondent should pay the appellant’s costs of the appeal and of the proceedings below.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated: 13 August 2007

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 55 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MARJORIE BYRNE Appellant
AND:	REPATRIATION COMMISSION Respondent

JUDGES:	GYLES, EDMONDS AND BUCHANAN JJ
DATE:	13 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

16 This appeal concerns the examination of a claim for a war service related pension arising from the death of an ex-serviceman.

17 Mr Eric Byrne served in the Australian Army from 1 April 1942 until 26 February 1946. Between 1942 and 1946 he served in New Guinea. His service is taken to be operational service.

18 In 1962 Mr Byrne died in a boating accident while on a fishing trip. He was found to have accidentally drowned. That was the conclusion of the medical practitioner who carried out an autopsy shortly after Mr Byrne’s death. It was the finding of the Coroner.

19 Forty years later the Administrative Appeals Tribunal (‘the AAT’) was required to consider conflicting medical evidence either suggesting or refuting two further possibilities – namely that Mr Byrne’s death was caused by a cardiac arrest attributable to war service related medical conditions or alternatively, even if the direct cause of his death was drowning, his ability to survive shock immersion in cold water weighed down by heavy clothing was impaired as a consequence of coronary artery disease or ischaemic heart disease.

20 Mr Byrne’s wife gave evidence that the stress of his war service (which included action on the Kokoda Track) caused him to become a heavy smoker. Medical evidence, upon which she relied, opined that Mr Byrne’s heavy smoking led to the development of the coronary artery disease that was identified after his death. It was suggested that he had probably suffered cardiac arrest while in the water. As will be seen, the AAT rejected this suggestion. However, further issues were presented for its consideration – one was the possibility that coronary artery disease may have impaired Mr Byrne’s ability to save himself from drowning. That suggestion was also rejected by the AAT.

21 There was no suggestion that the medical practitioner who performed the autopsy was not competent to do so and could not distinguish death by drowning from a heart attack. However, neither was he insensitive to the possibility that Mr Byrne’s military service may have in some way contributed to his death. He wrote to the Department of Veterans’ Affairs about 9 months after the autopsy and said:

‘While the cause of his death was undoubtedly drowning while on a fishing trip, there is some doubt in her [Mrs Byrne’s] mind that because of war disability, he was unable to cope with the situation when the boat overturned and that this could be a contributing factor to his death. This may well be so and would require history of his health before the accident...’

22 This observation cannot be elevated to the level of any opinion on his part. However, the concern which Mrs Byrne expressed those many years ago is ultimately the matter with which this appeal is concerned.

23 Section 8 of the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’) defines the circumstances relevant to the present case as follows:

‘8(1) Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:

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

(the qualifications contained in s 8 and s 9A are not here relevant)

24 The attribution of the death of Mr Byrne to his eligible war service (and hence that it is taken to be war-caused) is accomplished by s 120 of the Act if the conditions there prescribed are met.

25 Section 120(1) and (3) of the Act provide as follows:

‘120(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

...

(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.’

26 Sub-section (3) of 120 therefore contains a statutory direction that the Repatriation Commission (or in this case the AAT) is to be satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that an injury was a war-caused injury if 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 veteran. By the use of that statutory direction the legislation fastens upon an opinion that no reasonable hypothesis is available and directs that it satisfy the onus of proof beyond reasonable doubt. In these circumstances the claim will be rejected. That is not the only way that such satisfaction may be achieved and a claim may therefore be rejected. As will be seen, in the present case the AAT did not reject as unreasonable two hypotheses advanced to it. It was therefore required to consider whether, in any event, and notwithstanding there were reasonable hypotheses connecting Mr Byrne’s death with his war related service it was satisfied beyond reasonable doubt that there was no sufficient ground for concluding that it was war-caused. Otherwise it was obliged to determine that Mr Byrne’s death was war-caused and uphold the claim.

27 The statutory formula has been considered by the High Court in a number of cases but two (Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 (‘Bushell’) and Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 (‘Byrnes’)) are particularly relevant. In Bushell Mason CJ, Deane and McHugh JJ said (at 413):

‘Notwithstanding the submission of counsel for the Commission, s. 120(3) is not exhaustive of the content of s. 120(1). Sub-section (3) is concerned with whether "the material" raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of sub-s. (3), as demonstrated by its terms and its history, is to ensure that a claim to which s. 120 applies is not met unless there is some material which raises the relevant causal hypothesis.’

and also at 415:

‘If the material does raise a reasonable hypothesis of a connexion between the service and the injury, disease or death, the claim must be dealt with in accordance with s. 120(1). That is to say, the commission must determine that the injury, disease or death was war caused "unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination".’
(emphasis added)

28 Their Honours emphasised the necessity, in a case where a reasonable hypothesis exists, for disproof of the factual foundation necessary to sustain the hypothesis, saying (at 416):

‘The Commission will be satisfied beyond reasonable doubt "that there is no sufficient ground for making [the] determination" if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination. But unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed; we cannot conceive of a case where, for the purpose of s. 120(3), the hypothesis is reasonable having regard to the raised facts, yet the Commission could be satisfied, "beyond reasonable doubt, that there is no sufficient ground for making the determination" even though the raised facts are not disproved. Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with the operational service, it seems convenient simply to treat the case as governed by the application of s. 120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist.’
(emphasis added)

29 The observations of Brennan J are also pertinent to the present case. His Honour said (at 427):

‘However, in a case where a causal connexion between the circumstances of operational service and a veteran’s morbid condition is a matter of hypothesis only, the raising of a reasonable hypothesis by the evidence not only precludes the operation of sub-s. (3) but also will generally preclude a determination under sub-s. (1) that there is no causal connexion. In such a case, where a decision-maker makes a determination under sub-s. (1) on the same material as that which led to a conclusion under sub-s. (3) that there is a "reasonable hypothesis" of connexion, it would be impossible to conclude beyond reasonable doubt that there is no causal connexion. Before a negative conclusion could be reached, the decision-maker would have to be satisfied beyond reasonable doubt of the existence of some further fact which destroys the applicability of the reasonable hypothesis of causal connexion.’
(emphasis added)

30 Section 120(1) and (3) each appears in the Act accompanied by a note that it is affected by s 120A. The first issue which the AAT had to decide was whether s 120A applied. If it did that section gave a further direction as to how any hypothesis was to be assessed. Section 120A(3) and (4) provide:

‘(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); or
(b) a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;

as the case may be.’

31 Section 196B provides for the matters to be addressed in a Statement of Principles. Section 196B(1) and (2) (which are relevant for this discussion) provide:

‘(1) This section sets out the functions of the Repatriation Medical Authority. The main function of the Authority is to determine Statements of Principles for the purposes of this Act and the MRCA.

(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; or

(ca) warlike or non-warlike service rendered by members;

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.’

32 It may be seen that the combination of s 120A and s 196B may, in a case to which a Statement of Principles applies, establish criteria against which to measure any hypothesis proposed in accordance with s 120(3) and decide whether or not the hypothesis is upheld (s 120A(3)) and therefore reasonable.

33 In Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 it was held that no fact-finding is involved at the stage of identifying hypotheses and determining whether any hypothesis identified is reasonable. Subject to an important qualification, the principles declared in Deledio at 97-98 have been applied in subsequent cases (see most recently Collins v Administrative Appeals Tribunal [2007] FCAFC 111 (Collins) at [4] – [6] and [28] – [31]). The qualification stated in later cases is the disapproval of the statement in Deledio (at 97): ‘If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail’ (see Bull v Repatriation Commission [2001] FCA 1834; (2001) 188 ALR 756 at [13] – [15]; Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473 at [55]; Collins at [31] and [48]). As is clear from s 120A(4), which I set out above, where no Statement of Principles applies the evaluation under s 120(3) of whether any hypothesis is reasonable is unaffected by the terms of s 120A(3).

34 However, the statements in Deledio and in the later cases, do not exclude the necessity to first decide, if necessary by making appropriate findings of fact, whether a Statement of Principles applies to ‘the kind of death’ (or ‘kind of injury’ or ‘kind of disease’) which gives rise to the claim under consideration (see also Repatriation Commission v Hancock [2003] FCA 711; (2003) 37 AAR 383 at [11] and Repatriation Commission v Codd [2007] FCA 877 at [22] – [23]). There is no Statement of Principles for drowning or for coronary artery disease although there is for ischaemic heart disease. An important initial question for the AAT was, therefore, to decide what caused Mr Byrne’s death in order to establish whether a relevant Statement of Principles applied. That conclusion was required to be reached on the balance of probabilities (s 120(4)). Of necessity, it required findings of fact to be made.

35 The AAT accepted that Mr Byrne had coronary artery disease but it concluded that Mr Byrne’s death was caused by drowning and not by coronary artery disease or ischaemic heart disease. Specifically, it rejected the factual proposition that Mr Byrne may have suffered a cardiac arrest. The result of these findings about the cause of death was that no Statement of Principles applied and s 120A(3) had no application.

36 This meant that the examination of whether any hypothesis suggested by the appellant was reasonable was not guided by a relevant Statement of Principles and the AAT was required to assess for itself and without any guidance from a Statement of Principles whether, consistent with its finding that death was caused by drowning, any hypothesis advanced by the claimant was a reasonable hypothesis. If not, s 120(3) directed that the claim be dismissed. If there was such a reasonable hypothesis it had very significant weight unless, for other reasons, the AAT was satisfied beyond reasonable doubt that Mr Byrne’s death was not war-caused and the claim should therefore be rejected.

37 Apart from the coronary artery disease which was identified after his death Mr Byrne suffered from malaria, duodenal ulcers and nervous dyspepsia. One hypothesis suggested that those conditions impaired Mr Byrne’s ability to save himself. There was some medical support for the hypothesis but the AAT found that it was too tenuous and was not a reasonable hypothesis and rejected it.

38 However the AAT accepted the reasonableness of two other hypotheses postulated by the appellant (in the context that death was caused by drowning and not by a cardiac arrest) as follows:

‘73. Hypothesis 2: That Mr Byrne suffered from war-caused IHD [ischaemic heart disease] that impaired his ability to survive being thrown into the Tantangara Dam after his boat had capsized.

74. Again, given the development of the evidence, we also understood Mr Vincent to raise a third hypothesis during his final submissions. That is, that CAD [coronary artery disease] impaired Mr Byrne’s ability to survive once he was in the water.’

(underlining in original)

39 In Byrnes the Court, constituted by Mason CJ, Gaudron and McHugh JJ said:

‘Once a reasonable hypothesis is raised, the question for the Commission is then whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury was war-caused. The Commission will be so satisfied if it is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved, either by proof beyond reasonable doubt that a fact or fact relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis.

The passages in the joint judgment in Bushell that indicate that once the "raised facts" raise a reasonable hypothesis that is the end of the matter unless the raised facts are disproved should not be taken to suggest that proof beyond reasonable doubt of a further, inconsistent fact will not be sufficient, under s. 120(1), to preclude a finding by the Commission that the injury was war-caused. The remarks of the majority in Bushell were directed specifically to a situation where the raised facts giving rise to the hypothesis covered "the whole of the material" bearing on the hypothesis. They were not directed to a case where the veteran relies on part only of the material before the decision maker. Proof beyond reasonable doubt of a fact inconsistent with the reasonable hypothesis would, by implication, demonstrate that "the factual foundation upon which the hypothesis can operate does not exist".

The position may be summarized as follows: (1) First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s. (1) of s. 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.’
(footnotes omitted, emphasis added)

40 Therefore, once the hypotheses were accepted as reasonable by the AAT the next question was whether its findings about particular facts, on a standard of proof beyond reasonable doubt, falsified them.

41 However, the AAT did not embark on any further discussion of this issue. It cited the part of the passage from Byrnes which I have emphasised above and moved immediately to reject the two hypotheses in the following way:

‘91. Having considered all the evidence, we are satisfied beyond reasonable doubt that Mr Byrne’s death did not arise out of and was not attributable to a cardiac event of a kind described by Associate Professor Richards, Dr Craig, Dr Freeman or Dr Burn, that is, a cardiac event that was a consequence of IHD or CAD.

92. Taking into account Dr O’Keefe’s findings and the opinions of Dr Edwards and Professor O’Rourke, we are satisfied beyond reasonable doubt that Mr Byrne did not suffer from IHD. Dr Craig’s and Associate Professor Richards’s opinions were based on speculation that the reason Mr Byrne did not participate in tennis was that he suffered discomfort attributable to IHD. He had not complained of any such discomfort to his wife or to his treating doctors.

93. The opinions relating death to IHD and CAD were based essentially on there being no water in Mr Byrne’s lungs and his "inability" to save himself. Those opinions concluded that death was caused by such a cardiac event rather than by drowning. On the evidence, we are satisfied beyond reasonable doubt that Mr Byrne drowned, and that neither IHD nor CAD contributed to his death.’

42 The AAT had, earlier in its decision, already stated its conclusion that death was caused by drowning and not by a cardiac arrest. In para 91 (and perhaps para 93) the finding is repeated by reference to a higher standard of proof. It is not clear to me why that was thought to be necessary but the AAT may have seen it as part of a chain of reasoning. In any event, that finding is not challenged. Indeed, it was accepted as the foundation for the two hypotheses found to be reasonable.

43 The finding in para 92 that ‘we are satisfied beyond reasonable doubt that Mr Byrne did not suffer from IHD’ was sufficient to dispose of hypothesis 2. It is clearly a finding of fact inconsistent with hypothesis 2. That finding is not challenged.

44 The disposition of hypothesis 3 by para 93 (if that is what occurred) raises more difficult issues. The third hypothesis was that coronary artery disease ‘impaired Mr Byrne’s ability to survive once he was in the water’. The hypothesis was one which accepted the possibility that the AAT would find that Mr Byrne’s death was from drowning. It was not one that postulated that Mr Byrne’s death was due directly to a cardiac event. Rejection of opinions which ‘concluded that death was caused by such a cardiac event rather than by drowning’ (my emphasis) does not readily correspond with a finding that coronary artery disease did not contribute to Mr Byrne’s death in the way suggested by hypothesis 3 – ie. by impairing his ability to survive once he was in the water.

45 The first question which arises, therefore, from para 93 is whether hypothesis 3 was addressed at all. Having regard to the language used there is room for debate. However, on balance, it should be accepted that the AAT intended what it said to represent a rejection of hypothesis 3 as that was one of the two issues to which this part of its decision was directed.

46 Of greater difficulty is the question whether the AAT addressed hypothesis 3 in the manner required by the statute and the authorities. One difficulty with the AAT’s conclusion in para 93 arises from the fact, as it found, that the medical evidence involved speculation. The AAT’s initial resolution of the disagreement between the medical practitioners about the direct cause of death – i.e. drowning or some cardiac event – proceeded on the balance of probabilities. On this standard the AAT rejected a cardiac event as the ‘kind of death’ suffered by Mr Byrne. That involved a balancing exercise taking all the medical evidence into account. Inevitably, a preference for some medical evidence over other such evidence was necessary.

47 However, the application of s 120(1) raised issues of a different character. When the AAT turned to consider and evaluate any reasonable hypothesis that might connect Mr Byrne’s death with his war service it was no longer open to reason to a conclusion on the balance of probabilities. Section 120(1) of the Act has the effect that, in a case where a reasonable hypothesis is raised, a claim is to be rejected only if it is disproved beyond reasonable doubt. When, after exploring why it accepted hypotheses 2 and 3 as reasonable, the AAT turned to an assessment of them it was necessary for it to give particular attention to whether there was a fact (necessary to prove either hypothesis) which was disproved beyond reasonable doubt or a fact (inconsistent with either hypothesis) which was proved beyond reasonable doubt. The application of a different standard of proof called for some discussion, even if brief. The facts found proved or disproved should have been identified in the new context in which they would have legal significance. The absence of explanation for the conclusions announced in para 93 (so far as it might affect hypothesis 3) makes an assessment of the AAT’s reasons difficult, because it is necessary to search for the identification of a relevant fact, or facts, which might displace hypothesis 3 elsewhere in the decision.

48 The primary judge was satisfied, upon a consideration of the whole of its reasons, that the AAT’s conclusion that coronary artery disease did not ‘contribute’ to Mr Byrne’s death was based on evidence which the AAT obviously regarded as disproving hypotheses 3 beyond reasonable doubt. This reasoning was supported by the respondent on the appeal. It contended that para 66 of the AAT decision was the foundation for the AAT’s conclusion in para 93 that coronary artery disease did not contribute to Mr Byrne’s death and for the primary judge’s conclusions. In paragraph 66 of its decision the AAT said:

‘Given the evidence as it evolved during the hearing, we understood Mr Vincent to argue in submissions that another possible "kind of death" was CAD. We accept that Mr Byrne had CAD, however, we are not persuaded on the balance of probabilities that CAD was a cause of his death. The principle [sic] evidence Mr Vincent relied upon was Associate Professor’s Richards opinion, set out above. It seems to us that Associate Professor Richards started with two premises and developed his opinion from them. They were that Mr Byrne had no water in his lungs and that he made no effort to save himself. We do not accept that either premise is correct.’
(emphasis added)

49 The primary judge’s conclusions about the issue were as follows:

‘"[T]he evidence", as referred to in that paragraph, clearly refers back to the detailed discussion of the evidence earlier in the Tribunal’s reasons. It was that evidence which disproved the hypothesis that Mr Byrne’s ability to survive in the water was impaired by war-caused CAD.

Conclusion
There was detailed consideration of the evidence in the Tribunal’s reasons. The Tribunal cited that evidence as the basis for its conclusion. The reasons explain how and why the Tribunal came to its conclusion. It rejected the premises on which the hypothesis of CAD as a cause of death was based. Once those premises were rejected, the hypothesis that CAD impaired Mr Byrne’s ability to survive once in the water could not stand. In context, it cannot be said that the Tribunal failed to give reasons for its satisfaction, beyond reasonable doubt, that the cause of death was drowning, to which CAD made no contribution.’
(emphasis added)

50 The contention to which para 66 was directed was that Mr Byrnes death was due directly to a ‘cardiac event’ arising from his coronary artery disease. For reasons which will become apparent I am not able to share the primary judge’s view, nor that of the AAT, that disposition of the contention that Mr Byrne had suffered a heart attack inevitably provided a foundation for the rejection, beyond reasonable doubt, of hypothesis 3, namely, that coronary artery disease may have impaired Mr Byrne’s ability to survive once in the water even though not the direct cause of his death.

51 The passage set out above from para 66 of the AAT’s reasons, which the respondent advances to support both the AAT’s findings and the primary judge’s conclusions, seems clearly to be a reference to evidence given by Associate Professor Richards which the AAT had earlier summarised in this way (at para 48):

‘48. Reports from Associate Professor Richards were in evidence and he gave concurrent oral evidence with Professor O’Rourke. Both are cardiologists. Associate Professor Richards stated that the eye-witness accounts that Mr Byrne made little or no attempt to swim was because of "cardiac arrest and death before he finally slipped from the upturned boat". That there was no water in his lungs, together with the evidence of the witnesses, strongly supports arrhythmia. Cardiac arrest may have been due "to primary ventricular fibrillation associated with sudden immersion, or may have been due to ventricular fibrillation or asystole secondary to myocardial ischaemia due to coronary arterial spasm or thrombotic coronary arterial occlusion". We understand this latter possibility to be what the doctor also expressed in simpler terms as a non obstructive lesion may have ruptured and caused a blockage.’
(emphasis added)

52 Associate Professor Richards’ explanations, which were rejected by the AAT on the balance of probabilities in para 66, related to his opinion that Mr Byrne had suffered a cardiac arrest and died from that cause. They were not directed to consideration of an alternate possibility of death by drowning. I find myself therefore unable to agree that para 66 provides a sufficient foundation or explanation for the conclusion expressed in para 93 that ‘neither IHD or CAD contributed to his death’ in the sense raised by hypothesis 3 that coronary artery disease ‘impaired Mr Byrne’s ability to survive once he was in the water’. By contrast to its firm finding in para 92 that Mr Byrne did not suffer from ischaemic heart disease the AAT accepted that Mr Byrne had coronary artery disease. It made no finding (on any standard of proof) that his coronary artery disease was not related to war service. Its conclusion had to accommodate that as an accepted fact.

53 The next question, therefore, which arises for resolution is whether, apart from the statement of its conclusion in para 93 that coronary artery disease did not contribute to Mr Byrne’s death (accepting this conclusion was directed to hypothesis 3) the AAT actually made a relevant finding of fact which falsified hypothesis 3. In particular, did it find a fact upon which hypothesis 3 depended disproved beyond reasonable doubt or find a fact beyond reasonable doubt which was inconsistent with acceptance of hypothesis 3? In my view it did not. No countervailing fact, relevant to hypothesis 3, is referred to at para 66 or, so far as I can see, elsewhere as being established beyond reasonable doubt. Although the AAT stated, in para 93, that coronary artery disease did not contribute to Mr Byrne’s death, if that statement was intended to refute hypothesis 3 it was ineffective to do so because the statement involves a conclusion rather than a finding of fact. No relevant fact upon which the hypothesis depends was found disproved beyond reasonable doubt. No fact inconsistent with the hypothesis was found proved beyond reasonable doubt. As counsel for the appellant submitted to us ‘the hypothesis was left standing’. In the circumstances the AAT was bound by the statute and by authority not to reject hypothesis 3.

54 Moreover, and even if the stated conclusion in para 93 was, contrary to my own view, a finding of fact in its own right, the evidence as a whole did not permit the AAT to come to a firm conclusion about hypothesis 3 based solely on a consideration of Associate Professor Richards’ evidence, as the respondent suggested was the explanation for the AAT’s stated conclusion in para 93.

55 Hypothesis 3 arose during the course of the proceedings before the AAT. It was articulated during final submissions. It was not an issue to which the medical evidence in chief was specifically directed and it was not addressed by Associate Professor Richards either in his written report or his oral evidence. However, there was already general support for some of the premises which were included within it when, finally, it found formal expression. The medical practitioner who performed the autopsy did not exclude a war-caused disability as a contributing factor. Indeed he accepted some such factor might have been present. Mr Byrne was found from the autopsy to have ‘some atheroma aorta and coronary arteries but not obstruction of latter’. A number of medical practitioners provided evidence that Mr Byrne had coronary artery disease as a result of the observation that there was atheroma in the aorta and coronary arteries. A specific foundation for hypothesis 3 then emerged from the oral evidence before the AAT.

56 Dr Craig (who was called by the appellant) gave the following evidence in answer to questions from a member of the AAT:

‘In terms of the proposition that cause of death was perhaps a drowning, would your clinical assessment still remain that the ischaemic heart disease may have played a part in that process?--- If the cause of death were ultimately proven somehow to have been drowning, the presence of coronary artery disease would certainly have contributed to and it would have rendered Mr Byrne less capable or incapable of saving himself.

In what way?---In that he may have suffered angina pain due to the physical effort. He may have had a cardiac arrhythmia due to a disturbance of the electrical conduction pathways of the heart due to coronary disease. He may even have lost consciousness due to sudden drop in blood pressure due to poor cardiac output.’
(emphasis added)

57 Dr Edwards (who was called by the respondent) gave the following evidence in cross-examination:

‘With the coronary artery disease which you acknowledge was present in this man, what do you say to the proposal that it could have impaired his ability to well survive being in the water and perhaps and I appreciate that you’ve already talked about why you think he was unconscious and it may be that you need to put that to one side or to deal with it?---Sure.

What do you say about that proposition?---If he had coronary artery disease that was limiting the blood supply of the heart sufficiently to create pain or indeed to create an irregularity, a fatal irregularity in the heart beat, I mean that is a possibility. That is a scenario that is available.

...

Dr Craig has offered a view that doesn’t rely on unconsciousness and he says that yes, there was – well he terms it ischaemic heart disease but he talks about there being a heart disease present. So can you comment on the degree of possibility that – and on the assumption that Mr Byrne was conscious when he was in the water, that the ischaemic heart disease – sorry, the coronary artery disease impaired his ability to survive being in the water and thus played a role in his death on that occasion? ---I would put it on the spectrum of possibility and probability, I think it’s a possible explanation but not a probable one.

But the reason it’s not probable is for the reasons you’ve already talked about. Your summary of what you do know is that in all likelihood he was unconscious at that time?---No, even excluding that factor. Even excluding the likelihood of being unconscious. I think still the finding of that coronary artery disease as a causation of death is possible but where we’re told quite a bit about the heart in this situation and based on that I think it’s not probable. I think that it’s of course it’s something to be considered but I think it’s also something that can be not dismissed but certainly I think it’s not a probable explanation.’
(emphasis added)

58 When the AAT did not reject hypothesis 3 as unreasonable it was bound thereafter to accept it unless it was falsified beyond reasonable doubt. Unless the evidence of Dr Craig and Dr Edwards was rejected on this issue it was not open to the AAT to conclude beyond reasonable doubt that hypothesis 3 was falsified. That evidence was not rejected. For this reason also the AAT was not able to reject hypothesis 3 beyond reasonable doubt.

59 The error made by the AAT is an error of law, not of fact. It arises from the failure to apply the legislative direction in s 120 to the circumstances as found. In my view, the matter need not be remitted to the AAT because it would not be open, on the evidence, for the AAT to conclude beyond reasonable doubt that coronary artery disease did not impair Mr Byrne’s ability to survive once he was in the water. On the medical evidence that was a possibility. Hypothesis 3 was, on no view, disproved beyond reasonable doubt.

60 This conclusion does not mean that the AAT should have formed a positive opinion that Mr Byrne’s death was caused by a war-related condition – the result is dictated by the operation of s 120(1) in circumstances where hypothesis 3 was accepted by the AAT as reasonable and where it could not, as a matter of law on its stated reasons be satisfied that the hypothesis was disproved beyond reasonable doubt.

61 I would make the following orders:

1. The appeal is upheld.
2. The orders made on 5 December 2006 are set aside and in lieu thereof it is ordered that the application is upheld.
3. The decision of the AAT on 12 May 2006 is set aside and in lieu thereof it is declared that:

(a) the death of Eric Byrne was war-caused;
(b) the applicant is entitled to payment of a widow’s pension with effect from 28 December 2002;
(c) the respondent is to pay the appellant’s costs of the appeal and of the proceedings below.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated: 13 August 2007

Counsel for the Appellant:	Mr M Vincent
Solicitor for the Appellant:	Dibbs Abbott Stillman
Counsel for the Respondent:	Ms K Eastman
Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	15 May 2007
Date of Judgment:	13 August 2007