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No.10 April 2008

Tunks v Repatriation Commission

[2008] FCAFC 64

COURT Federal Court, Sydney
JUDGE Madgwick J
DATE OF DECISION 18 April 2008
DECISION Appeal upheld, decision of the AAT set aside and matter remitted to AAT.
ISSUES reasonable hypothesis test – Deledio steps – whether Tribunal engaged in impermissible fact finding in application of s 120(3) - whether Tribunal used correct test in application of s 120(1)


The late Veteran, Mr Kenneth Tunks, rendered operational service in the Royal Australian Navy. He died from cancer of the prostate.  A delegate of the Repatriation Commission (Commission) denied Mrs Tunks claim that her late husband’s cancer was caused by, or attributable to, his war service.  The decision was affirmed on review by the Veterans’ Review Board (VRB).  Mrs Tunks sought further review by the Administrative Appeals Tribunal (Tribunal).

The Tribunal’s reasoning 

Before the Tribunal, there was no dispute as to Mr Tunks’ kind of death. The primary question in the case was whether his “kind of death” was war caused. 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 No 28 of 2005. 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 dietician, Dr English and gastroenterologist, Professor Duggan.  Further, the Tribunal held that the applicant’s case failed at the fourth Deledio step.  The lack of evidence of the pre-service diet, and the inaccuracy of the post-service diet led the Tribunal to find that it was satisfied beyond reasonable doubt the factual foundation upon which the hypothesis linking war service to death could operate, did not exist. The Tribunal affirmed the decision of the VRB.

Grounds of appeal

The applicant contended that the Tribunal misconstrued sections 120(1) and (3) of the VEA and posed and answered the wrong questions. Such errors are errors of law. Specifically, the applicant contended that in applying s 120(3) of the VEA, the Tribunal had to consider all the material and determine:

  1. whether it points to some fact or facts (the raised facts) which support a hypothesis connecting the death with the circumstances of operational service; and

  2. whether that hypothesis can be regarded as reasonable, if the raised facts are assumed to be true.

In support of her propositions, the applicant relied on Hill 69 ALD 581 and the High Court in Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408.

The Commission’s position

The Commission submitted that the applicant had not raised a 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.

If the Court found that there was a “question of law”, the Commission contended that there was no error on the part of the Tribunal in applying s120(3) and s 120A, and finding that there was no evidence to support the essential elements of factor 5(c) of the SoP.

The Commission contended that the applicant had misconceived the authorities in making her submissions. In the Commission’s view, Hill 69 ALD 581 did not stand as authority that the elements of the SoP may be established on "assumed facts". The respondent argued that the Full Court decision in Hill 69 ALD 581 cast doubt on the utility of cases decided prior to the enactment of s 120A, including Bushell [1992] HCA 47; 175 CLR 408, with respect to whether the elements of an SoP may be established on something other than direct factual evidence.

The Court’s consideration  

Justice Madgwick noted that this case demonstrated the difficulties attending matters concerning s 120(3) and s120A of the VEA. His Honour said:

[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) 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…

In respect of the above comments, his Honour framed his consideration in two ways.  Firstly, in respect of the steps posed by Deledio.  Secondly, avoiding the Deledio formulation.

Deledio steps

His Honour held that the Tribunal’s finding that there was “no evidence” of the veteran’s pre-service fat intake was wrong.  In his Honour’s opinion, the Tribunal had asked itself the wrong question at step 3 of Deledio:

[41] The lay evidence was to the effect that the deceased’s war service had dramatically changed his dietary habits so that, afterwards, he ate much more animal fat than before it. This clearly "pointed to" or "raised" a hypothesis that the deceased had indeed increased his animal fat intake by a very large degree that may have equalled or exceeded 40%.

In respect of the question posed by the fourth step of Deledio,  Justice Madgwick noted the comments of Justices Gyles in Hall v Repatriation Commission [2007] FCA 2021 at [19] that:

mis-statement of the statutory task pursuant to s 120(1) in the reasons cannot simply be ignored and treated as a slip of the pen.  Satisfaction beyond reasonable doubt is an exacting standard, particularly where it is framed in the negative.  As Barwick CJ said in Keeley v Brooking [1979] HCA 28; (1979) 143 CLR 162 at 169:

"To be satisfied beyond all reasonable doubt is, for the purposes of the law, to be certain." (Emphasis in original.)

In his Honour’s opinion, the Tribunal in this case had incorrectly approached the task at step 4 of Deledio:

[46]… An absence of evidence or of reliable evidence cannot be a sufficient basis for the Tribunal to reach the requisite level of satisfaction that either a fact asserted by a claimant is not true, or that a contrary fact is true.

Avoiding the Deledio formulation

In respect of  what was required by s 120(3) of the VEA,  Justice Madgwick considered that:

[47] (1)…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 respect of s 120(1) of the VEA,  his Honour considered that:

[47] (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.

Formal decision

Mrs Tunks’ appeal to the Federal Court was upheld. Justice Madgwick considered that the  Tribunal erred in law in application of s 120(3) by concluding that there was "no evidence" going to dietary habits of deceased veteran; and that the Tribunal could not reach level of satisfaction required by s 120 where there was only no evidence or no sufficient evidence that disease was war-caused.

Editorial Note

In Repatriation Commission v Hill (2002) 69 ALD 581, the Full Court considered that where an SoP applies, it prescribes the essential content of what is a reasonable hypothesis for section 120(3) purpose. A hypothesis relied upon by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable.

What the AAT was required to do in this case was determine whether the whole of the material before it (including the expert evidence) pointed too:

Importantly, in accordance with paragraph 4 of SoP No 28 of 2005, the Tribunal was required to consider whether all of the material pointed to an increased consumption of animal fat for the stipulated period being related to any relevant service rendered by the late Mr Tunks.

If the Tribunal found that all of the material did not point to Mr Tunks’ operational service causing him to increase his consumption of animal fat to the prescribed level and to maintain that consumption for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate, then it would be open to find that the hypothesis was not fairly raised by the material and could not be deemed to be reasonable.

Further reading: Significant commentary and case reports on the group proceedings before the Administrative Appeals Tribunal concerning prostate cancer are reported in VeRBosity volume 21 no 4 at page 140.

All Practice Notes