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Cross v Repatriation Commission

[2012] FCA 1079

COURT Federal Court, Sydney
JUDGE Jacobson J
ISSUES Whether the Tribunal misdirected itself as to the application of S119 ( 1)(h) of the VEA


Mr Cross died as a result of a gastrointestinal haemorrhage. He had a long term smoking habit which contributed to his death, however, the tribunal determined that his smoking habit was not war caused. The tribunal received evidence from three sources on the question of whether the smoking habit was related to service. The first was a claim form by Mr Cross, the second a written report by Mrs Cross and the third a statement by Mr Cross’ son.

The Tribunal noted the reasons given by Mrs Cross and her son were different than that of Mr Cross. The tribunal stated they were inconsistent with the reasons given by Mr Cross. The tribunal concluded that it could not be satisfied that the connection between Mr Cross’ smoking and army service was not more than temporal and affirmed the decision under review.

Mrs Cross appealed to the Federal Court.

Grounds of appeal

  1. The Tribunal misapplied itself as to the application of S119 ( 1) (h) (i) of the Act.

The Applicant contended that the difficulties referred to in s119(1)(h), namely the difficulties in ascertaining the cause of Mr Cross’ smoking habit arising from the effects of the passage of time were not adopted by the tribunal. Instead the tribunal determined the question by pointing to inconsistencies between 3 different accounts of the cause of Mr Cross’ smoking habit.

Counsel for the Commission emphasised the tribunal had to be satisfied to the relevant civil standard. The Commission noted there was no material difference between the evidence of Mr Cross, his widow and son, what was critical to the tribunal’s reasons was that it could not be satisfied that the evidence enabled it to reach the state of satisfaction required by s120(4).

The Court’s Consideration

The Court noted the Tribunal’s reasons:

The issue in dispute is whether Mr Cross’ smoking habit arose out of, or was attributable to service. To be “attributable to’ service, it is not necessary that Mr Cross’ service be the sole or dominant cause of the development of his smoking habit( Gilkinson v Repatriation Commission[2011] FCAFC.

We are reasonably satisfied that Mr Cross commenced smoking during service…. However, as has been authoritatively determined, a temporal connection alone is insufficient to establish a causal connection between smoking and service Re Repatriation Commission v Tuite [1993]FCA 39, Repatriation Commission v Law [1981] HCA 57.

The Court noted the Tribunal concluded that it could not be reasonably satisfied that the connection between Mr Cross’ smoking and his army service was not more than temporal in nature. The Tribunal received evidence from three separate sources on the question of whether the necessary causal connection existed. The Tribunal considered that each explanation was plausible but could not be satisfied that the reasons given by Mr Cross or his widow and son were in fact the reason he developed a smoking habit during service.

The Court noted it is not the function of s119 (1)(h) to fill in gaps where the evidence is not sufficient  to support an applicant’s case.

The Court referred to the case of Mason v Repatriation Commission [2000] FCA 1409:

Cases of the present type will usually involve problems of remembering details of events and s119(1)(h) is designed to ensure that those matters are taken into account but these matters are not to prevail over the structure and text of the remaining provisions of the Act.

The Court also noted Mansfield J in Fenner:

S119(1)(h) is relevant to the way the Tribunal proceeds but it cannot remove the responsibility of applying s120.

The Court considered the Tribunal dealt with the matter in accordance with the above principles. It recognised the beneficial nature of the Act and the need to take into account matters such as the unavailability of Mr Cross and the difficulty in having Mrs Cross attend to give evidence. After allowing for these difficulties in accordance with s119(1)(h), the Tribunal went on to say it could not be satisfied of the requisite standard in s120(4).

The Court considered the effect of the Tribunal’s remark” in the absence of better evidence” was that the evidence of the three family members was insufficient to satisfy the Tribunal to the prescribed standard that the smoking habit was war caused, not that the tribunal thought it had to resolve the inconsistencies between the evidence.

The Court concluded that the Tribunal considered all the evidence that was available, took into account the unavailability of witnesses and was not satisfied to the standard required by s120(4)


Appeal dismissed

Editorial note

The Federal Court noted the function of s119 in Repatriation Commission v Bey[1997] FCA 1374:

The material either points to a connection or it does not, if it does not, the deficiency cannot be remedied by resort to a procedural provision such as s119(1)(g).

As Wienberg J noted in Mason v Repatriation Commission 2000[FCA] 1409:

The role of s119 is not to invent evidence which may serve to establish that connection

More recently the Federal Court noted in Fenner v Repatriation Commission [2005] FCA 27 that:

Whilst the directions of s119 are of relevance to the way in which the Triunal proceeded, they cannot remove from it the responsibility of applying ss120 and 120A.

This recent case of Cross reinforces the principles as established by the Court in cases of Fenner and Bey that a decision maker must be satisfied to the requisite standard of proof there is a connection between the claimed condition and service. S119 cannot be used to fill in gaps in order to establish that connection.

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