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No3. March 2009

Milbourn and Repatriation Commission

COURT Federal Court, Sydney
JUDGE Graham J
DECISION Appeal dismissed, applicant order to pay respondent’s costs.
ISSUES Whether evidence to connect smoking to service


The late Mr Milbourn served in the Australian Army between 13 January 1942 and 1 February 1943. He suffered no accepted war-caused disabilities and died in 1987 of small cell metastatic carcinoma of the lung. Mrs Milbourn applied to the Repatriation Commission (Commission) for a war widow’s pension on the ground that her late husband’s lung cancer was war caused. The Commission refused Mrs Milbourn’s claim. The VRB affirmed the Repatriation Commission’s decision (VRB). Mrs Milbourn sought further review by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed the decision under review. It was not reasonably satisfied on the balance of probabilities in accordance with subsection 120(4) that Mr Milbourn’s death was war-caused. Mrs Milbourn appealed the decision of the Tribunal to the Federal Court.

Grounds of appeal

The relevant question of law put forward by the applicant was whether section 43(2B) of the Administrative Appeals Tribunal Act 1975 (AAT Act) required the Tribunal to give reasons that disclosed:

The Court’s consideration

Justice Graham considered that the applicant’s question of law should be answered in the negative.  His Honour considered that section 43(2B) of the AAT Act did not require the Tribunal to provide reasons to be given to support why particular evidence or other material, which could have supported a finding of fact, was not accepted. Under the Act, the Tribunal was obliged to give reasons for ‘its decision’.  Justice Graham said:

[48] In relation to the question of whether or not Mr Milbourn smoked during the time of his war service and the question of whether or not his smoking was relevantly related or connected to his war service, it was sufficient to record the Tribunal’s lack of satisfaction as it did in paragraph 14 of its reasons for decision. Its lack of satisfaction on the balance of probabilities is borne out in part by its observation at [14] ‘In our opinion, the material before us is unclear about a temporal connection with army service and even less clear about any greater relationship to army service’ (emphasis added). There was no obligation upon the Tribunal to provide reasons why evidence that was favourable to the applicant’s case was not accepted. The evidence that tended one way, favourable to the applicant, took the form of hearsay from some years after the event, and evidence that tended the other way took the form of business records (an exception to the rule against hearsay) in respect of facts that would appear to have been admitted by the late Mr Milbourn during his lifetime. In the absence of any direct evidence, ‘rejection’ of evidence did not become an issue. As Sheppard J said in Brackenreg v Comcare Australia (1995) 56 FCR 335 at 350 ‘a tribunal may properly say that it does not accept the evidence of a witness and no more ...’, especially where the evidence relied upon is hearsay. As Sheppard J made clear, a tribunal’s conclusion in a matter of this kind may be largely intuitive.

Justice Graham concluded that the Tribunal had clearly articulated why it was not satisfied on the balance of probabilities that Mr Milbourn’s death was war caused.

Formal decision

Mrs Milbourn’s appeal was dismissed with costs. 

Editorial Note

Further reading: Re Milbourn and Repatriation Commission [2008] AATA 959 is reported in VeRBosity Vol 24 No 2.

All Practice Notes