Case: Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115
Outcome: cited
The applicant says that the Tribunal misconstrued s 120(1) and (3) of the Act, and posed and answered the wrong questions. Such errors are errors of law, appellable under s 44 of the AAT Act: in Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115 a majority of the High Court held, at [28], that "[i]n failing to pose and answer the correct question the Tribunal erred in law. That error constituted an appealable [sic] error of law within the meaning of s 44 of the Administrative Appeals Tribunal Act ". 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.