Case: Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82
Outcome: referred to
Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82 the Full Court explained the method of the application of s 120(1) and (3) at page 91 where the Court said: The method of applying s 120(1) and (3) is now well established: (1) One commences with subs (3). The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact. (2) The second step under subs (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the 'raised facts') and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision-maker must identify the facts said to point to it. (3) Whether a hypothesis is reasonable is a question of fact. The decision-maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point. (4) If the decision-maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis. See also Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564 at 571. Deledio also determined (at 97) that if no SoP were in force, the hypothesis will not be taken to be reasonable and in consequence the application must fail. Such observation has subsequently been disapproved: see Bull v Repatriation Commission (2001) 188 ALR 756 at [14]; Woodwood v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473 at [55] ; and Repatriation Commission v Hancock [2003] FCA 711 ; (2003) 37 AAR 383 at [10] . In Repatriation Commission v Codd [2007] FCA 877 ; (2007) 95 ALD 619 Gordon J observed (at [20]) that the Deledio methodology is subject to three qualifications. Firstly, the methodology is not to be applied mechanistically; secondly, if no SoP is in force reference must be had to s 120A(4) of the VE Act which provides that s 120A(3) does not apply in certain circumstances; and thirdly there are two preliminary steps to the Deledio analysis as expounded by Selway J in Hancock . Such steps were identified at [11] as follows: (a) First, the AAT was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out... (b) Next, the AAT was required to determine on balance of probabilities what "kind of death" [the veteran] had suffered. This involved the identification, on balance of probabilities, of any and all [SoP] and/or determinations under s 180A(2) of the Act and any other "kinds of death" which were applicable to that death. (c) If one or more [SoP] were applicable, then the methodology in Deledio is applicable in relation to those "kinds of death"...