mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Borrett v Repatriation Commission [2000] FCA 1829
Outcome: approved
This passage from Dixon [1999] FCA 582 ; 29 AAR 235 was cited with approval by Tamberlin J in Borrett v Repatriation Commission [2000] FCA 1829. I respectfully agree with their Honours. In the latter case, his Honour held that the Tribunal had erred in law when it found that there was "no evidence" of a veteran's drinking patterns either during or prior to service. In that case, there was evidence that the veteran had drunk prior to service, as well as evidence from a psychiatrist and a contemporary of the veteran as to the drinking habits of the veteran whilst in service. That case has obvious parallels with the present. 40 The "findings" referred to above were made by the Tribunal in its application of s 120(3). The finding that there was "no evidence" of the veteran's pre-service fat intake was clearly wrong, when there was evidence presented by the applicant, the veteran's brother and a boyhood friend of the veteran regarding the diet of the veteran, as well as the evidence of the dietary survey from which, indeed, the Tribunal explicitly inferred a pre-service, daily animal fat intake: Borret [2000] FCA 1829 at [30] ; see also Gleeson v Repatriation Commission (1994) 34 ALD 505 at 509. Further, the conclusion regarding the accuracy of the applicant's recall of her husband's post-service diet also demonstrates error on the Tribunal's part, in terms of impermissible fact-finding: see Dixon [1999] FCA 582 ; 29 AAR 235 at [24] .
Case: Bull v Repatriation Commission [2001] FCA 1834 ; (2001) 188 ALR 756
Outcome: cited
If the Court finds that there is a "question of law" to be answered, the respondent contends that the Tribunal's decision was not marred by error. The question whether a reasonable hypothesis is raised is to be determined on consideration of the whole of the material before the decision-maker, as held by the High Court in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904. According to the respondent, it is "well accepted" that a reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. The respondent relies on a line of authority to support the proposition that there must be a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities: East v Repatriation Commission [1987] FCA 242 ; (1987) 16 FCR 517 at 532-3, Bull v Repatriation Commission [2001] FCA 1832 ; (2001) 34 AAR 326 at 330 and Gardiner [2007] FCA 1290. 34 Nevertheless, there are, in this area of the law, a number of clearly defined steps which a decision-maker must take, each with its own mandated methodology of application. In particular, the four Deledio steps (with the exception of the correction made in Bull v Repatriation Commission [2001] FCA 1834 ; (2001) 188 ALR 756 at [14] [15]) have become something of an algorithm in cases of this kind. While the Deledio propositions were intended as an aid to clear thinking and, with respect, are clearly right, treating them as if they were a substitute for the statute and, as I have put it, an algorithm, indeed the only available algorithm, seems in practice to have created at least as many problems as their learned author intended that they should avoid. That is not, of course, their author's fault. Notwithstanding this, the application of the necessary steps cannot be said to be easy. As Gyles J said in Byrne v Repatriation Commission [2007] FCAFC 126 ; (2007) 97 ALD 359 at [1] [o]ne can only have sympathy for the members of the [Tribunal] who are called upon to apply ss 120, 120A and 120B of the [Act] as they have been interpreted by the authorities of the High Court and this Court. The reasoning required would confuse most philosophers. 35 It is settled that the decision-maker is not to engage in fact finding during the first three Deledio steps (ie the application of s 120(3) as affected by s 120A): Deledio 83 FCR at 97; Bull 188 ALR at 761 . It is only during the fourth Deledio step (ie the application of s 120(1)) that actual fact finding is permissible. However, the determination of whether a reasonable hypothesis has been raised by the whole of the material before the decision-maker is itself a question of a factual nature: Bey 79 FCR 373 and Gardiner [2007] FCA 1290 , and the first three Deledio steps are concerned with this very determination. This requires the decision-maker to determine a question of a factual nature, without engaging in formal or ultimate fact-finding. Such a tension makes the dividing line referred to by Allsop J above all the more difficult to discern.
Case: Bushell v Repatriation Commission (1992) 175 CLR 408
Outcome: cited
The applicant relied on Hill [2002] FCAFC 192 ; 69 ALD 581 , where the Full Court held at [57] that a hypothesis must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable. How the material must "raise" or "point to" a hypothesis is determined by applying the principle set down by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 at 414: The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. (Emphasis added.) According to the applicant, in applying s 120(3), the Tribunal had to consider all the material and determine: 1. whether it points to some fact or facts (the raised facts) which support a hypothesis connecting the death with the circumstances of operational service; and 2. whether that hypothesis can be regarded as reasonable, if the raised facts are assumed to be true. 31 The respondent submits that the applicant has misconceived the authorities in making her submissions. According to the respondent, Hill [2002] FCAFC 192 ; 69 ALD 581 does not stand as authority that the elements of the SoP may be established on "assumed facts": [56]-[57]. The respondent argues that that the Full Court decision in Hill [2002] FCAFC 192 ; 69 ALD 581 casts doubt on the utility of cases decided prior to the enactment of s 120A, including Bushell 175 CLR 408 , with respect to whether the elements of an SoP may be established on something other than direct factual evidence. 32 The respondent submits that there was no error on the part of the Tribunal in applying s 120(3) and s 120A, and finding that there was no evidence to support the essential elements of factor 5(c) of the SoP. 43 Fact finding by the Tribunal is permitted during the fourth step in the Deledio process: Deledio [1998] FCA 391 ; 83 FCR 82. Indeed it is then required. The Tribunal in this matter picked up the language of s 120(1), where it referred to "no sufficient ground" for making a determination that the death was war-caused, and fastened on the language of the majority in Bushell 175 CLR at 416 when referring to the lack of "factual foundation". However, the authorities indicate that an applicant will only fail at this point of the analysis if, as stated by Mason CJ, Gaudron and McHugh JJ in Byrnes 177 CLR at 570, the Commission 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. [See also 571; Deledio 82 FCR at 93] . (Emphasis added. Footnotes omitted.)
Case: Byrne v Repatriation Commission [2007] FCAFC 126
Outcome: cited
Nevertheless, there are, in this area of the law, a number of clearly defined steps which a decision-maker must take, each with its own mandated methodology of application. In particular, the four Deledio steps (with the exception of the correction made in Bull v Repatriation Commission [2001] FCA 1834 ; (2001) 188 ALR 756 at [14] [15]) have become something of an algorithm in cases of this kind. While the Deledio propositions were intended as an aid to clear thinking and, with respect, are clearly right, treating them as if they were a substitute for the statute and, as I have put it, an algorithm, indeed the only available algorithm, seems in practice to have created at least as many problems as their learned author intended that they should avoid. That is not, of course, their author's fault. Notwithstanding this, the application of the necessary steps cannot be said to be easy. As Gyles J said in Byrne v Repatriation Commission [2007] FCAFC 126 ; (2007) 97 ALD 359 at [1] [o]ne can only have sympathy for the members of the [Tribunal] who are called upon to apply ss 120, 120A and 120B of the [Act] as they have been interpreted by the authorities of the High Court and this Court. The reasoning required would confuse most philosophers.
Case: Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564
Outcome: applied
In Dixon [1999] FCA 582 ; 29 AAR 235 at [24] Wilcox J further held that at [ Deledio steps 1-3] the decision-maker is not concerned with the accuracy of the material giving rise to the hypothesis; the decision-maker is still working under s 120(3). The two steps additional to those identified in Byrnes that is, steps 2 and 3 in the Deledio formulation are simply limitations on the result that may be obtained in connection with the first of the two Byrnes steps. As the Full Court said in Deledio it is only at the step 4 stage of the process "that the Tribunal will be required to find facts from the material before it." 43 Fact finding by the Tribunal is permitted during the fourth step in the Deledio process: Deledio [1998] FCA 391 ; 83 FCR 82. Indeed it is then required. The Tribunal in this matter picked up the language of s 120(1), where it referred to "no sufficient ground" for making a determination that the death was war-caused, and fastened on the language of the majority in Bushell 175 CLR at 416 when referring to the lack of "factual foundation". However, the authorities indicate that an applicant will only fail at this point of the analysis if, as stated by Mason CJ, Gaudron and McHugh JJ in Byrnes 177 CLR at 570, the Commission 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. [See also 571; Deledio 82 FCR at 93] . (Emphasis added. Footnotes omitted.)
Case: Collins v Administrative Appeals Tribunal [2007] FCAFC 111 ; (2007) 163 FCR 35
Outcome: cited
This case demonstrates the difficulties attending matters concerning s 120(3) and s 120A. As Allsop J said in Collins v Administrative Appeals Tribunal [2007] FCAFC 111 ; (2007) 163 FCR 35 at [49] , [t]he dividing line between impermissible fact finding and the required assessment of all the material in the formation of an opinion as to whether a hypothesis is reasonable in connecting the ... death with the circumstances of service and as to whether a relevant SoP upholds the hypothesis is not easy to discern.
Case: Dixon v Repatriation Commission [1999] FCA 582 ; (1999) 29 AAR 235
Outcome: approved
Nevertheless, it is important not only to draw the line, but to ensure that decision-makers do not step beyond its boundary. In Dixon v Repatriation Commission [1999] FCA 582 ; (1999) 29 AAR 235 , Wilcox J held at 243 that: [t]he question whether a decision-maker reaches a conclusion adverse to a claimant at the step 3 stage or the step 4 stage is not a mere technicality. If belief is addressed at the step 3 stage, there is a risk that the decision-maker will rule against a claimant simply because he or she is not persuaded the claimant's story is probably true. Although the decision-maker should not think in terms of onus of proof, in a practical sense at the step 3 stage the claimant is likely to be left with this burden. Moreover, the decision-maker is likely to reject the application even though he or she thinks the claimant's story may possibly be true. (Emphasis in original.) 37 This passage from Dixon [1999] FCA 582 ; 29 AAR 235 was cited with approval by Tamberlin J in Borrett v Repatriation Commission [2000] FCA 1829. I respectfully agree with their Honours. In the latter case, his Honour held that the Tribunal had erred in law when it found that there was "no evidence" of a veteran's drinking patterns either during or prior to service. In that case, there was evidence that the veteran had drunk prior to service, as well as evidence from a psychiatrist and a contemporary of the veteran as to the drinking habits of the veteran whilst in service. That case has obvious parallels with the present. 39 In Dixon [1999] FCA 582 ; 29 AAR 235 at [24] Wilcox J further held that at [ Deledio steps 1-3] the decision-maker is not concerned with the accuracy of the material giving rise to the hypothesis; the decision-maker is still working under s 120(3). The two steps additional to those identified in Byrnes that is, steps 2 and 3 in the Deledio formulation are simply limitations on the result that may be obtained in connection with the first of the two Byrnes steps. As the Full Court said in Deledio it is only at the step 4 stage of the process "that the Tribunal will be required to find facts from the material before it." 40 The "findings" referred to above were made by the Tribunal in its application of s 120(3). The finding that there was "no evidence" of the veteran's pre-service fat intake was clearly wrong, when there was evidence presented by the applicant, the veteran's brother and a boyhood friend of the veteran regarding the diet of the veteran, as well as the evidence of the dietary survey from which, indeed, the Tribunal explicitly inferred a pre-service, daily animal fat intake: Borret [2000] FCA 1829 at [30] ; see also Gleeson v Repatriation Commission (1994) 34 ALD 505 at 509. Further, the conclusion regarding the accuracy of the applicant's recall of her husband's post-service diet also demonstrates error on the Tribunal's part, in terms of impermissible fact-finding: see Dixon [1999] FCA 582 ; 29 AAR 235 at [24] .
Case: East v Repatriation Commission [1987] FCA 242 ; (1987) 16 FCR 517
Outcome: cited
The applicant's general submission is that there is no requirement for there to be direct evidence of the elements required by an SoP. It is sufficient if there is some material that pointed to and thus permits the inference of facts which satisfy the SoP. The applicant submits that there were raised facts in the material before the Tribunal, and acknowledged in its reasons for decision, which supported the sub-hypothesis that the veteran's pre-service daily intake of animal fat was around or possibly slightly below the national average of 126 g per day. The fact that any estimate of fat consumption was speculative was irrelevant, as stated by the majority in Bey 79 FCR at 372: While a hypothesis may be no more than a possibility or supposition , in order for a hypothesis to be reasonable, it must, as East [ v Repatriation Commission [1987] FCA 242 ; (1987) 16 FCR 517] states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision maker. (Emphasis added.) 29 If the Court finds that there is a "question of law" to be answered, the respondent contends that the Tribunal's decision was not marred by error. The question whether a reasonable hypothesis is raised is to be determined on consideration of the whole of the material before the decision-maker, as held by the High Court in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904. According to the respondent, it is "well accepted" that a reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. The respondent relies on a line of authority to support the proposition that there must be a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities: East v Repatriation Commission [1987] FCA 242 ; (1987) 16 FCR 517 at 532-3, Bull v Repatriation Commission [2001] FCA 1832 ; (2001) 34 AAR 326 at 330 and Gardiner [2007] FCA 1290.
Case: Gardiner v Repatriation Commission [2007] FCA 1290
Outcome: cited
The respondent submits that the applicant's notice of appeal raises no question of law; a finding as to whether a reasonable hypothesis has not been raised is a question of fact: Gardiner v Repatriation Commission [2007] FCA 1290. Further, the respondent submits that the applicant's challenge to the Tribunal's finding that it was satisfied beyond a reasonable doubt that the veteran's death was not war-caused (the alternative finding, and fourth Deledio step) is an attempt to challenge a question of fact. 29 If the Court finds that there is a "question of law" to be answered, the respondent contends that the Tribunal's decision was not marred by error. The question whether a reasonable hypothesis is raised is to be determined on consideration of the whole of the material before the decision-maker, as held by the High Court in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904. According to the respondent, it is "well accepted" that a reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. The respondent relies on a line of authority to support the proposition that there must be a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities: East v Repatriation Commission [1987] FCA 242 ; (1987) 16 FCR 517 at 532-3, Bull v Repatriation Commission [2001] FCA 1832 ; (2001) 34 AAR 326 at 330 and Gardiner [2007] FCA 1290. 35 It is settled that the decision-maker is not to engage in fact finding during the first three Deledio steps (ie the application of s 120(3) as affected by s 120A): Deledio 83 FCR at 97; Bull 188 ALR at 761 . It is only during the fourth Deledio step (ie the application of s 120(1)) that actual fact finding is permissible. However, the determination of whether a reasonable hypothesis has been raised by the whole of the material before the decision-maker is itself a question of a factual nature: Bey 79 FCR 373 and Gardiner [2007] FCA 1290 , and the first three Deledio steps are concerned with this very determination. This requires the decision-maker to determine a question of a factual nature, without engaging in formal or ultimate fact-finding. Such a tension makes the dividing line referred to by Allsop J above all the more difficult to discern.
Case: Gleeson v Repatriation Commission (1994) 34 ALD 505
Outcome: cited
The "findings" referred to above were made by the Tribunal in its application of s 120(3). The finding that there was "no evidence" of the veteran's pre-service fat intake was clearly wrong, when there was evidence presented by the applicant, the veteran's brother and a boyhood friend of the veteran regarding the diet of the veteran, as well as the evidence of the dietary survey from which, indeed, the Tribunal explicitly inferred a pre-service, daily animal fat intake: Borret [2000] FCA 1829 at [30] ; see also Gleeson v Repatriation Commission (1994) 34 ALD 505 at 509. Further, the conclusion regarding the accuracy of the applicant's recall of her husband's post-service diet also demonstrates error on the Tribunal's part, in terms of impermissible fact-finding: see Dixon [1999] FCA 582 ; 29 AAR 235 at [24] .
Case: Hall v Repatriation Commission [2007] FCA 2021
Outcome: approved
In Hall v Repatriation Commission [2007] FCA 2021 at [19] Gyles J said that: mis-statement of the statutory task pursuant to s 120(1) in the reasons cannot simply be ignored and treated as a slip of the pen. Satisfaction beyond reasonable doubt is an exacting standard, particularly where it is framed in the negative. As Barwick CJ said in Keeley v Brooking [1979] HCA 28 ; (1979) 143 CLR 162 at 169: " To be satisfied beyond all reasonable doubt is, for the purposes of the law, to be certain. " (Emphasis in original.) 45 Whether or not Barwick CJ may, with respect, have overstated the position, in my view Gyles J certainly did not. 46 While the reasons of the Tribunal are to be read with due generosity, the language used here by it suggests inescapably that it approached its task incorrectly. The Tribunal stated that it was "satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist" because there was "no evidence as to pre-war consumption and no reliable evidence as to the amount of post-war consumption". An absence of evidence or of reliable evidence cannot be a sufficient basis for the Tribunal to reach the requisite level of satisfaction that either a fact asserted by a claimant is not true, or that a contrary fact is true.
Case: Repatriation Commission v Dunn [2006] FCA 1703 ; (2006) 94 ALD 97
Outcome: cited
The Tribunal held that, according to authority ( Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581) "a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable". Further, the Tribunal held that material which supports the hypothesis of the connection must exist, citing Repatriation Commission v Dunn [2006] FCA 1703 ; (2006) 94 ALD 97 per Nicholson J at [46]. 11 The Tribunal however concluded that there was "no reliable evidence whatsoever as to the deceased's actual dietary intake of animal fat prior to service." The Tribunal referred to a national dietary survey of the Australian people conducted between 1936-8 which gave the average adult intake of animal fat as 126 g per day. The deceased veteran had a body mass index (BMI) of 18.7 at the time of his enlistment, bringing him within a healthy weight range (between BMI 18.5 and 25). The Tribunal inferred from this information that the deceased veteran's daily intake of animal fat was around, or possibly slightly below, the national average. 12 The Tribunal also held that there were no facts upon which to estimate an average daily fat intake while the deceased was serving in the RAN. There was "no doubt" however, that the deceased veteran was at times served fatty and greasy foods. With regard to post-service diet, the Tribunal said the following: the Applicant's evidence was that the deceased post war insisted on having the fatty food he had come to enjoy whilst in the Navy. She went on to state that the deceased had fried eggs and sausages for breakfast, toast with plenty of butter, that he liked the fat left on chops and steak, the outside slice on roast lamb, and gravy in the dish from the baked meat. He wanted apple pie or baked custard with cream or anything with chocolate or cheese in or on it. She further added that the deceased stated he had acquired a taste for fatty foods whilst in the Navy. In oral evidence the Applicant stated "he liked what he had been denied as a child".