Case: Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82
Outcome: applied
In Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82 at 97-8, the Full Court held that a four-step process is required under s 120 and s 120A of the Act to determine if an injury or death was war-caused. These steps may be summarised as: 1. the material before the Tribunal is to be examined to see if it points to a hypothesis connecting the death with the circumstances of the veteran's service. In the absence of a hypothesis, the claim fails; 2. if the material does raise a hypothesis, the Tribunal must see if there is an SoP in force. If there is no SoP in force that fits the hypothesis, it will be taken not to be reasonable and the claim fails; 3. if an SoP is in force and relevant to the hypothesis, the Tribunal will consider if the hypothesis is reasonable. If the hypothesis is consistent with the template found in the SoP, the hypothesis is reasonable. If the hypothesis fails to fit within the template, the claim fails; 4. the Tribunal must then decide whether it is satisfied beyond reasonable doubt that the death was not war-caused. If it is not so satisfied, the claim succeeds. If it is so satisfied, the claim fails. 8 The Tribunal described the hypothesis which the applicant contended linked the deceased veteran's war-service with his prostate cancer as follows: he was fed a low fat diet by his mother prior to enlistment in the Royal Australian Navy but during service in the RAN, acquired a liking for foods with a high animal fat content, and after discharge from the Navy insisted on maintaining a diet high in animal fats. 9 The more favourable SoP, which the Tribunal applied, provided as a factor that must as a minimum exist before a reasonable hypothesis has been raised connecting cancer of the prostate with operational service, an increase in "animal fat consumption by at least 40% and to at least 50 g/day, and maintaining these levels for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate." 19 In the alternative, the Tribunal held that the applicant's claim in any case failed at the fourth Deledio step. The lack of evidence of the pre-service diet, and the apparent inaccuracy of the post-service diet led the Tribunal members to find that they were satisfied beyond reasonable doubt the factual foundation upon which the hypothesis linking war service to death could operate, did not exist. Finally, the Tribunal stated that "[a]s no reasonable hypothesis connecting the death of the deceased with the service exists, we are deemed to be satisfied beyond reasonable doubt that the death of the deceased was not war-caused". 21 The applicant contends that the primary issue for determination is whether s 120 of the Act requires direct evidence of a factor required by an SoP in order for a claim to succeed. The applicant submits that the issue for the Tribunal under s 120(3) was not the reliability of the evidence, or whether there was considerable doubt about aspects of the applicant's evidence, or whether it was likely to be wrong. Rather, under s 120(3), the issue is whether the facts raised by the claimant give rise to a reasonable hypothesis when proof of those facts is not in issue: Deledio 83 FCR at 92. The applicant submits that the Tribunal erred by engaging in fact-finding when applying s 120(3). 26 The applicant further submits that the Tribunal erred in its application of s 120(1), and the fourth Deledio step. The Court in Deledio 83 FCR at 96 stated that if the hypothesis is reasonable the claim will succeed unless: (1) one or more facts necessary to support it are disproved beyond reasonable doubt; or (2) the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt. 27 The applicant submits that the elements of her hypothesis addressed by the Tribunal were that the deceased's pre-service diet contained 126 g of animal fat per day, and that his post-service diet contained 187 g per day. According to the applicant, the proper application of the fourth Deledio step requires either one of these facts to be disproved beyond reasonable doubt or for a fact inconsistent with them to be proved beyond reasonable doubt. The Tribunal concluded that it was satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis could operate did not exist. The applicant submits that the Tribunal misconstrued and misapplied s 120(1) and, as a result, did not address the correct question. 28 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. 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. 38 The Tribunal in the present case made a clear distinction between its application of s 120(3) (and the first three Deledio steps), and s 120(1) (and the fourth Deledio step). In its application of s 120(3), the Tribunal noted that the applicant had conceded that her recall of the total amount of food ingested by her late husband may have been inaccurate. The Tribunal then held "[i]f this recall is wrong, then it is equally likely that her recall of the relative proportions of the different foods consumed is also wrong." The Tribunal further held that there was "no evidence" regarding the amount of fat the deceased consumed in his pre-service years, and "no facts which address the hypothesis of an increase in animal fats by 40%". These comments suggest that the Tribunal both crossed the line into impermissible fact finding, and misunderstood the nature of its then preliminary inquiry. 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." 42 The Tribunal also found that the applicant's claim failed at the fourth Deledio step, that is, the application of s 120(1). The Tribunal again stated that there was "no evidence" regarding the amount of animal fat ingested by the deceased veteran pre-service, and repeated the finding that the applicant's mistaken estimate of quantity of food eaten by her husband post-service also tainted her estimate of relative proportions. These findings led the Tribunal to conclude that it was satisfied beyond reasonable doubt "that the factual foundation upon which the hypothesis can operate does not exist." 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.) 47 To try to put the matter clearly (and avoiding the Deledio formulation), (1) Contrary to the Tribunal's view that there was "no evidence" from which a possible assessment of the deceased's dietary habits before and after his service could be made, there was significant material from which, under s 120(3), the Tribunal might have concluded that there was a real possibility of a very large, even of 40%, increase in the deceased's daily animal fat consumption, ie by 61 g (a little over two ounces in the more readily comprehensible, older measurements or, if all the increased fat were butter, a shade under a quarter of a 250 g packet). There was a deal of lay evidence, and not only from the applicant widow, to point to this hypothesis, which is all that is required at the s 120(3) stage. The lay evidence could hardly have precisely quantified the increase to 40% or more, and did not, in terms, purport to do so. However, that evidence strongly supported a dramatic increase in the deceased's animal fats consumption after his war service and the Tribunal did not hold the entirety of that evidence to be completely lacking in credibility. While an increase of such an amount in daily fat intake would certainly be very considerable, it could not be assumed from mere common experience to be impossible. There was no expert testimony establishing that an increase of 61 g of fat per day (ie to 187 g per day) was impossible. (In this regard, it seems clear that by oversight, when recounting the effects of Dr English's evidence at [23] of its reasons, the Tribunal mistakenly referred to 187 g when it should have given 264 g as her estimate of the amount of claimed post-service fat intake, cf for example [31].) If the Tribunal had therefore concluded that the asserted real possibility existed, it might properly not have been satisfied (as s 120(3) contemplates) that the material did not raise a reasonable hypothesis of war-caused connection. It would then have needed to confront its ultimate fact-finding task under s 120(1). (2) While the Tribunal may possibly have been positively satisfied beyond reasonable doubt under s 120(1) that, in fact, there was no sufficient ground for making the determination that the disease was war-caused, it could not do so merely because of its stated reasons, that either there was no evidence or no sufficient evidence to sustain a positive finding that there was such a connexion. Absence of proof of X simply cannot prove non-X. (3) Both of these errors amount to errors of law. In each instance, the Tribunal misconceived its function: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 227 at 242-3 per Rich, Dixon &amp; McTiernan JJ, or asked the wrong question: Roncevich [2005] HCA 40 ; 222 CLR 115.