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No5. May 2010

Glanville v Repatriation Commission

[2010] FCA 405

COURT Federal Court, Sydney
JUDGE Cowdroy J
DATE OF DECISION 30 April 2010
DECISION Appeal allowed. Tribunal erred in employing the ‘not fanciful’ test to evaluate the material before the Tribunal, rather than applying that test to the hypothesis raised from the material. The Tribunal failed to address adequately the testimony of an expert witness and submissions on an important issue (the SoP factor). Matter remitted to the Tribunal, differently constituted, for determination
ISSUES Use of assumptions. Status of expert evidence as ‘material’. Application of the ‘not fanciful’ test. Need to consider evidence and submissions on fundamental questions.

Facts

Mr Glanville served in the Australian Army with ‘operational service’ during WW2. He died on 30 January 2004 from prostate cancer. Mrs Glanville’s claim for war widow’s pension was refused by the Repatriation Commission (Commission) and this decision was affirmed by the Veterans’ Review Board. The Administrative Appeals Tribunal (Tribunal) set aside the decision and granted the claim. The Commission appealed that decision to the Federal Court.

The Tribunal

Mrs Glanville’s contention at the Tribunal was that her husband’s death was due to ingestion of animal fat. The relevant SoP factor is:

(c) increasing animal fat consumption by at least 40% and to at least 50gm/day, and maintaining these levels for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate

The Tribunal heard evidence from two dieticians, Dr English for the Commission, and Dr Volker for the applicant. Both based their reports on a survey regarding Mr Glanville’s post service diet, provided by Mrs Glanville.

Dr Volker gave evidence that Mr Glanville’s army rations would have been bland and boring, and that because of the frightening conditions during his service he would have become determined to eat only flavoursome food containing fat, after service.

Dr English gave evidence that if the survey completed by Mrs Glanville was accurate, Mr Glanville would have had an impossible weight gain.

The Tribunal accepted the material put forward by Dr Volker as ‘not fanciful’ and that this pointed to a reasonable hypothesis which met the requirements of the SoP factor. The Tribunal discounted Dr English’s report on the basis that a disagreement between two experts is not sufficient to disprove a hypothesis.

Grounds of appeal

The Commission submitted that there were 4 errors of law:

  1. Use of assumptions made by an expert witness to establish a reasonable hypothesis;
  2. Concluding that a hypothesis was reasonable because there was material that was not fanciful;
  3. Failing to consider a serious submission; and
  4. Failing to consider evidence given by an expert witness

The Court’s Consideration

Ground 1.  Use of Assumptions

Justice Cowdroy considered firstly whether Dr Volker’s testimony which included a number of assumptions, constituted ‘material’ for the purpose of supporting a reasonable hypothesis; and whether the hypothesis raised by such testimony can be a reasonable hypothesis.

Following the reasoning in Deledio, the Court found that there was no material before the Tribunal regarding the nature of the food the veteran actually consumed during service; there was no evidence regarding his liking for such food; and no evidence that he disliked that food because of his war time experiences and diet. The only evidence of his food preference was that he liked his mother’s cooking and the fact that he struggled to keep to a diet in his advancing years because he liked the food that he was used to eating.

The Court considered a range of authorities, and formed the opinion that Dr Volker’s testimony provided ‘material’ before the Tribunal that pointed to the assumption relied on in the respondent’s hypothesis. Whether the hypothesis was reasonable is considered in the second ground of appeal.

Ground 2.  Whether the Hypothesis is Reasonable

The Commission submitted that the Tribunal had found a reasonable hypothesis based solely on the assumptions made by Dr Volker. The Tribunal assessed the material before it as ‘not fanciful’ whereas that phrase should have been used in evaluating the reasonable hypothesis.

The Court found that the term ‘not fanciful’ has been applied in consideration of whether a reasonable hypothesis exists, and not (as the Tribunal had done in this case) as a standard for evaluating the material before the decision maker.

The Court found that the Tribunal had failed to address the question whether the hypothesis was reasonable – an issue fundamental to its task. The Tribunal had misdirected itself in failing to apply the required test.

Grounds 3 & 4.  Failure to Consider Submissions and Evidence

The final two grounds of appeal were that the Tribunal failed to deal with the submission that there was no material before it to satisfy the SoP; and failed to consider evidence of an expert witness (Dr English).

The Commission submitted that it drew the Tribunal’s attention to Dr English’s opinion that the information supplied by Mrs Glanville concerning the applicant’s post service diet was invalid. Based on Dr Volker’s figures the veteran would have experienced an impossible weight gain. However, the Tribunal made no findings concerning Dr English’s evidence.

The Commission submitted that Dr English’s opinion about the validity of the dietary survey went to the fundamental issue (ie the quantity of fat consumed), and it was necessary for the Tribunal to make a finding on the issue of whether it accepted or rejected such evidence. The Commission also submitted that the Tribunal failed to consider its submission relating to the significance of Dr English’s evidence.

Counsel for Mr Glanville submitted that the Tribunal was correct in its reasoning that a disagreement between two experts is not sufficient to disprove a hypothesis beyond reasonable doubt.

The Court held that the Tribunal must give proper regard to all material on the fundamental question for determination. In this instance the Tribunal was required to address the information raised by Dr English’s opinion.

The Court also upheld the submission that the Tribunal was required to consider the Commission’s submissions concerning the evidence of Dr English. The survey was the only evidence that Mr Glanville increased his fat consumption to the level required by the SoP, and evidence which questions the validity of that evidence requires proper consideration. The Tribunal fell into jurisdictional error by failing to address and consider the Commission’s submission before it.

Formal decision

Justice Cowdroy allowed the appeal, set aside the Tribunal’s decision, and remitted the matter to be heard by the Tribunal, differently constituted.

Editorial note

This case is one where the Tribunal referred the case of Byrnes v Repatriation Commission [1993] HCA 51 regarding acceptance of assumptions, and Repatriation Commission v O’Brien [1985] HCA 10 regarding the requirements of a reasonable hypothesis (‘not fanciful’). Although the Tribunal stated that it was following Deledio it ignored the steps which the Full Federal Count spelt out in that case (having inappropriately discounted Dr English’s evidence).

Justice Cowdroy’s decision emphasises that any case involving the reasonable hypothesis standard must properly satisfy the Deledio formulation.

All Practice Notes