Veterans' Review Board
Home | About the VRB | Contact us | Members and Staff | Publications | Factsheets | ADR trial | Links | Notices | Vacancies | Site map

Ellis v Repatriation Commission

[2014] FCA 847

COURT Federal Court, Melbourne
JUDGE Gordon J
DATE OF DECISION 11 August 2014
DECISION The appeal was allowed
ISSUES Widow’s pension claim - whether Tribunal misconceived/misunderstood its function when applying s120(3) of the VEA - whether Tribunal considered the hypothesis put forward by the applicant


Mr Ellis served in the Australian Army during the Second World War, rendering operational service from 8 April 1942 to 11 June 1947.  He died on 3 January 2012.  His widow, Mrs Ellis, applied to the Repatriation Commission (Commission) for a war widow’s pension.  Her claim was rejected by a delegate of the Commission, and the decision was affirmed on review by the Veterans’ Review Board and the Administrative Appeals Tribunal (Tribunal).  Mrs Ellis appealed to the Federal Court.

Grounds of appeal

Three questions of law were identified in the appeal:

  1. Whether there was any material before the [AAT] which raised or pointed to a hypothesis that was consistent with [the Diabetes Mellitus SoP].
  2. Whether the [AAT] misconceived and/or misunderstood its function when applying s 120(3) of the [VE Act].
  3. Whether it was open for the [AAT] to find on the material before it that the material did not point to the veteran being overweight for at least five years before the clinical onset of his diabetes.

The central issue related to question 2, as submitted by the applicant:

First, the [AAT] misstated the first hypothesis put forward by Mrs Ellis linking Mr Ellis’ death with his operational service and failed to distinguish between and correctly apply the first and third Deledio steps.

Second, the [AAT] misapplied s 120(3) by requiring that each element of the Diabetes Mellitus SoP be supported by evidence tending to establish it when it was only necessary that the hypothesis be supported by the material before the [AAT].

Third, the [AAT] misapplied s 120(3) by embarking on fact finding at step 3 of the Deledio process.

The Court’s consideration

1.1 “Misstatement” of the hypothesis

The Court noted the AAT stated at [37] the first hypothesis for its consideration as being:

  1. Mr Ellis’ knee injury limited his physical activity to such an extent that he became overweight;
  2. Mr Ellis’ excessive weight contributed to his developing diabetes mellitus;
  3. the diabetes mellitus contributed to the development of carcinoma of the liver;
  4. carcinoma of the liver caused Mr Ellis’ death.

The Court indicated that the hypothesis put forward by Mrs Ellis referred to Mr Ellis being overweight with a BMI of over 25 for a period of five years before the clinical onset of his diabetes mellitus.  The Court stated at [45]:

“…This detail about Mr Ellis’ BMI was an essential element of the relevant SoP…The AAT had a duty to consider the particular hypothesis put forward when undertaking the first Deledio step…and it did not do so. “

While the Court accepted that the reasons for decision of the AAT “are not to be construed minutely and finely with an eye keenly attuned to the perception of error” and must be read as a whole, citing the cases of Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 and Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) FCR 280, the difficulty in the present case was that the AAT’s reasons stated the first hypothesis incorrectly and this infected other parts of its analysis. The appeal was allowed, as the AAT asked itself the wrong question.

1.2 “Intertwining” of the first and third Deledio steps

Mrs Ellis submitted that in deciding whether the hypothesis was raised, the Tribunal impermissibly intertwined the first and third Deledio steps.  In Forrester v Repatriation Commission [2013] FCA 898 the Court stated at [74]:

…the first step in Deledio has a factual element particular to the material before the decision-maker about the veteran.  It is…a separate but integral aspect of determining the reasonableness of the asserted hypothesis.  It involves a different comparison to the third step, and centres much more on the specific factual material relied on by the veteran.  The different exercises involved mean, in my opinion, that a decision-maker could reach a conclusion adverse to a veteran on the first step, and  - assuming against itself and moving to the following steps - a conclusion favourable to the veteran at the third step.  That is because they are distinct aspects of reasonableness.

In relation to the third Deledio step, in Repatriation Commission v Warren [2008] FCAFC 64 Lindgren and Bennett JJ held at [26]:

If there is an SoP in force, it must be asked whether the hypothesis of connection that is raised is a reasonable one.  It will be reasonable if the hypothesis fits, that is to say, is consistent with, the “template” to be found in the SoP.  To be consistent with that template, the hypothesis raised must contain the factors that the Authority has determined to be those that must as a minimum exist…, and of those factors the hypothesis must contain the factors that the Authority has determined to be the minimum related to the person’s service that must exist … .  If the hypothesis fits the template in these respects, it cannot be said to be contrary to proved known scientific facts or otherwise fanciful.  If, on the other hand, the hypothesis fails to fit the template in these respects, it will be deemed not “reasonable” and the application fails.

(Emphasis added).

The Court went on to indicate at [54]:

What these authorities demonstrate is two essential aspects - a hypothesis must be raised and it must be reasonable.  It can be done together but it must be done.  Here, the process was flawed because the AAT did not state the correct hypothesis (step 1), appeared to consider part of the correct hypothesis at some point but then returned to the incorrect hypothesis at step 3.  That is an error.

 2 Need for more precise evidence

Mrs Ellis submitted that the AAT’s reasoning that the first hypothesis was not consistent with the Diabetes Mellitus SoP involved a misapplication of s 120(3), as the Tribunal implied there was a need for more precise evidence.  However, the Court considered there was no identified error.  It was common ground that it was not necessary for every element of the hypothesis to be supported, or pointed to, by the material before the Tribunal, and it is the essential elements of the hypothesis that must be addressed.

3 Impermissible fact finding

The Court considered Mrs Ellis submission on this point did not need to be addressed, given its earlier views concerning 1.1 above, because the Tribunal’s error was that it asked itself the wrong question and got the wrong answer.  The Tribunal was, however, in error in finding the date of clinical onset of diabetes was in 1975.  The Court noted the question of fact finding in this context has been addressed in Deledio and Collins, and the task for the Tribunal is to “consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage”.

4 Failing to consider all the material before it  - Questions 1 and 3

Lastly, the Court addressed Mrs Ellis’ submission that, contrary to the requirements of s 120(3), the Tribunal failed to consider all of the material before it in determining whether the material raised a reasonable hypothesis.  The Court concluded it was enough to say that for at least the most part the alleged omissions might be seen as supporting the conclusion otherwise reached that the Tribunal did not properly identify the question to be asked and then answered, as set out at 1.1.

The Court’s Decision

The decision of the Tribunal was set aside and the matter was remitted to the Tribunal differently constituted to be determined according to law.

Editorial Note

The Court’s detailed analysis in this case centred around the Tribunal’s error in misstating the hypothesis at the first Deledio step.  At the first stage in the Deledio process, the Court identified the obligation or “duty to consider not merely the particular hypothesis put forward but also any other hypothesis fairly raised by the evidence”: Hill v Repatriation Commission [2005] FCAFC 23.  The Tribunal had a duty to consider the particular hypothesis put forward when undertaking the first Deledio step, and it did not do so.

All Practice Notes