Case: Repatriation Commission v Deledio (1998) 83 FCR 82
Outcome: applied
Section 120A(3) of the VE Act relevantly provides that a hypothesis connecting 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 SoP or a determination by the Commission that upholds the hypothesis. The second basis (a determination by the Commission) is not relevant to the circumstances of this case. That is, the hypothesis raised (that is, pointed to) by the material will only be reasonable if the hypothesis is consistent with, or fits the template of, a SoP: see Repatriation Commission v Deledio (1998) 83 FCR 82 at 96, endorsing the observations of Heerey J at first instance: Deledio v Repatriation Commission (1997) 47 ALD 261 at 275. 19 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 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." 45 In McKenna , the Commission had determined that ischaemic heart disease and atherosclerotic peripheral vascular disease suffered by Mr McKenna were each a war-caused disease within the VE Act . The effect of the decision of Goldberg J at first instance was to reach a contrary conclusion. Goldberg J said (28 AAR 7 at 15): "For the purposes of s 120A(3) of the [VE] Act the hypothesis which has to be upheld by a [SoP] is the hypothesis which connects the disease suffered by a veteran with the circumstances of his service. So stated, the hypothesis has to point to a connection which starts with the disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a [SoP] and, if need be, by more than one [SofP]. In the instant case the relevant links are: [diseases listed] When the hypothesis is identified this way it is then necessary, consistently with the course identified by the Full Court in Repatriation Commission v Deledio , to ask and answer the question in accordance with s 120A(3)(a) of the Act is there in force a SoP that upholds the hypothesis, that is to say the hypothesis connecting each of the diseases contracted by the respondent with the circumstances of his operational service? It is therefore necessary to identify whether there is in force a [SoP] which upholds the whole, and not just part, of this hypothesis..". 46 The Full Court endorsed the approach of Goldberg J and said at [20]: "Since the Authority had determined [SoP] in respect of the kinds of diseases suffered by Mr McKenna (s 120A(4)(b)), the next step which the Tribunal was required to take was to form an opinion whether the hypotheses pointed to by the material before the Tribunal were reasonable. It was only entitled to form the opinion that they were reasonable if they were upheld by, in the sense of consistent with, the relevant [SoP]. In our view, for either of the hypotheses to be upheld by a [SoP], as required by s 120A(3) of the Act, each of its sub-hypotheses would have to be so upheld . A complex hypothesis (that is, one comprising more than one element or part) can be no stronger than each of its elements or parts." (Emphasis added.) 47 In the present case, the Tribunal was bound to apply the McKenna principle. It explicitly rejected that approach. That was an error of law. On any view, one of the sub-hypotheses was that the effects of the veteran's "service related alcohol habit ... [had] impaired his concentration and contributed to the fatal collision" . As the Tribunal failed to ask the question about the alcohol related sub-hypothesis, it failed to consider whether there was a SoP which upheld that sub-hypothesis. 48 Mr Green SC, counsel for the respondent, contended that even if the Tribunal had applied the McKenna principle to the SoP, it would have reached the same conclusion on the basis that there was no SoP which covered the hypothesis (and one assumes the sub-hypothesis) that the veteran was a heavy drinker. In particular, Mr Green relied upon the following findings of the Tribunal: "Contrary to submissions of the Respondent, there is evidence of the deceased being drunk on the evening prior to his death and hung over on the following morning... Whilst I am satisfied that on the evening prior to the fatal collision the deceased having regard to the evidence of Mrs Codd had been drinking heavily I am satisfied that he metabolised the alcohol during the period between arriving at home at approximately 10.30pm and the collision at approximately 7.30am. In those circumstances any alcohol residue at the time of the collision would have been so minuscule to safely permit a finding that at the time of the collision the deceased was not under the influence of alcohol."