Case: Repatriation Commission v Bey [1997] FCA 1347 ; (1997) 79 FCR 364
Outcome: cited
However, the Tribunal held that there were no facts present to support the hypothesis of an increase in animal fats by at least 40%, as required by the SoP. The Tribunal was prepared to assume that the deceased increased his animal fat consumption post-service, but considered that the actual amount of increase was pure speculation, a finding confirmed by the reports of Dr English and Professor Duggan. Amongst other authorities, the Tribunal cited Repatriation Commission v Bey [1997] FCA 1347 ; (1997) 79 FCR 364 where the majority said, at 373: Whether material raises a "reasonable hypothesis" for the purposes of s 120(3) is a question of fact for it involves no more than a determination whether a hypothesis of connection is reasonable: Repatriation Commission v Owens (1996) 70 ALJR 904. The Tribunal held that in the present matter there is no fact of connection sufficient to raise a reasonable hypothesis as the percentage increase of animal fat consumption by the deceased is purely speculative. As the factor which the Applicant contends raises the reasonable hypothesis connecting the death of the deceased with operational service cannot be said to exist, there is no hypothesis which fits within the template provided by the SoP, and hence no reasonable hypothesis exists for the purposes of sub-section 120(3) [of the Act]. 23 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.) 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.