Case: Repatriation Commission v Codd [2007] FCA 877
Outcome: cited
In Repatriation Commission v Codd [2007] FCA 877 at [9] - [24] I described the statutory framework in the following terms. The standard of proof to be applied in determining whether a claim for a pension in respect of the incapacity from injury or disease of a veteran was war-caused is prescribed by ss 120(1) and (3) of the VE Act . Section 120 of the VE Act relevantly provides: "(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 disease was a war-caused disease ... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. ... (3) In applying subsection (1) or (2) in respect of the incapacity of a person from ... disease ... related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: ... (b) that the disease was a war-caused disease or a defence-caused disease; ... if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the ... disease ... with the circumstances of the particular service rendered by the person." 12 The method by which ss 120(1) , 120 (3) and 120A (3) are applied was explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98 ("the Deledio methodology"). The Full Court set out the course which the Tribunal is to take in a case such as the present in the following terms: "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 Deledio methodology is subject to at least three important qualifications which are not presently directly relevant: see Repatriation Commission v Codd [2007] FCA 877 at [20] - [22] .