Bailey v Repatriation Commission

[2019] FCA 1840

Summary of practice note


Federal Court, Victoria


Anastassiou, J


11 November 2019


The appeal was allowed


Whether Tribunal erred in finding material did not raise reasonable hypothesis by weighing evidence


The applicant, Mr Bailey served with the Royal Australian Navy (RAN) from 1960 until 1972 and rendered a number of periods of operational service. Following his service, Mr Bailey remained a member of the Navy Reserve until his discharge on 30 September 1999. Mr Bailey made a claim for disability pension in respect of his cirrhosis of the liver. On 27 September 2016, the Veterans’ Review Board affirmed the Repatriation Commission’s decision that this condition was not war-caused. Mr Bailey appealed to the Administrative Appeals Tribunal (the Tribunal). On 25 October 2017, the Tribunal decided to affirm the Repatriation Commission’s decision.

The issue before the Tribunal

The issue for the Tribunal had been whether Mr Bailey’s Cirrhosis arose out of or was attributable to any eligible war service rendered by him. Mr Bailey had relied on the following factor in Statement of Principles concerning Cirrhosis of the Liver (Reasonable Hypothesis) (No. 1 of 2017), dated 20 December 2016:

… for males, consuming at least 110 kilograms of alcohol within any ten year period before the clinical onset of cirrhosis of the liver.

Applicant’s drinking history

Before the Tribunal, Mr Bailey submitted that he joined the Royal Australian Navy at the age of 16.  He trained at HMAS Leeuwin, before being posted to HMAS Anzac. He started to drink alcohol while on Anzac. Although he was underage at the time, there was a beer ration supplied to the crew.  At this time he said he was drinking between three and four glasses of beer per day. Mr Bailey undertook operational service on HMAS Voyager in the Malay Peninsula, Singapore, from 8 February 1963 to 1 March 1963, from 10 March 1963 to 29 March 1963 and from 15 April 1963 to 10 May 1963.  He was not on board the Voyager at the time of its collision with the HMAS Sydney.  However, he had friends on board who were injured or killed. Mr Bailey submitted that as a result of the distress caused by the collision, his drinking increased to around nine glasses of beer per day, and his marriage subsequently broke down.

Additionally, Mr Bailey also rendered operational service on HMAS Yarra, for various periods between 31 March 1965 and 9 June 1966, during what has become known as the Indonesia-confrontation.  He claimed that during this confrontation he was in a state of fear of attack and witnessed the gruesome aftermath of violence at sea while involved in the recovery of bodies from the water.  By this time the applicant claimed he was drinking around 15 glasses of beer per day.

Tribunal’s consideration

During its consideration of stage 3 of the Deledio steps the Tribunal considered several factual matters it regarded as relevant to the question of the reasonableness of the hypothesis, including the applicant’s oral evidence and Mr Bailey’s answers to an alcohol questionnaire. The Tribunal considered this material “pointed to” a pattern of excessive alcohol consumption by Mr Bailey prior to his operational service in 1963. Additionally, the Tribunal considered the oral evidence of Mr Bailey in relation to his claimed stressors along with historical records and submissions from both parties. The Tribunal concluded that the historical records did not support Mr Bailey’s statements. The Tribunal concluded that:

… The causal link Mr Bailey seeks to make between his operational service in 1963, his increased drinking behaviour, and a diagnosis of cirrhosis three years ago, is too remote and tenuous.

… After considering the whole of the material before me, I am satisfied beyond reasonable doubt that the facts raised by the evidence do not give rise to a reasonable hypothesis.

The Tribunal noted it was not necessary to consider stage 4 of Deledio, as it considered a reasonable hypothesis had not been raised.

Applicant’s argument before the Court

Before the court, Counsel for Mr Bailey argued that the Tribunal had erred in the following ways:

  • It embarked on fact finding at the third Deledio step by weighing evidence;
  • It erred in finding the material before it did not point to a reasonable hypothesis; and
  • It erred in limiting its consideration of any causal link between Mr Bailey’s post-war alcohol consumption and his service to the ‘but for’ test for causation, contained in s 196B(14)(f), and ignored the other tests for causation.

The Court’s consideration

The third Deledio stage

Justice Anastassiou considered the Tribunal erred at stage 3 of the Deledio analysis by expressly making relevant factual findings based upon its assessment of the weight of the evidence before it at that stage of the analysis.  His Honour noted:

…the staged process mandated in Deledio is an astutely designed analytical guide to ensure that the ultimate question of whether the injury to the veteran was war-caused is not precipitated before giving the veteran the benefit of applying the beneficial standard in s 120(1) of the VE Act.

This section is often referred to as a ‘reverse criminal onus’. That shorthand expression may be apt to a degree, but not entirely. The applicant does not bear an onus and neither does the respondent.  And it is only the “reverse” of the criminal standard of proof in that the Tribunal is required to be satisfied of the negative, namely that the injury was not war caused. The requirement that the Tribunal be satisfied of that negative upon the criminal standard of proof beyond reasonable doubt requires the Tribunal to affirmatively determine at the fourth stage, assuming it reaches that point, that the injury was not war caused.

…In finding that the hypothesis was unreasonable it implicitly resolved those conflicts against the applicant.  In assessing at paragraph [70] whether the applicant’s version of the stressors were present during his service in connection with the Indonesia-confrontation, the Tribunal implicitly rejected the applicant’s evidence.

Service Contribution – section 196B

In respect of any service contribution, his Honour also noted that:

The Tribunal is not required to consider each formulation for causation if it is satisfied that by applying one or more of the criteria in ss 196B(14) it may allow the veteran’s application.  However, to be faithful to the demonstrable legislative intention to in effect give the veteran the benefit of the doubt, if the Tribunal is not satisfied upon one of the criteria for causation, it is required to consider all criteria that may be applicable to the circumstances of the veteran’s claim.  The Tribunal is required to consider whether one or more of the criteria pose a causation test that is more beneficial from the veteran’s perspective than another or others.

The Court’s Decision

The appeal was allowed.

Editorial Note

Section 120(3) of the VEA requires the formation of an opinion by the decision maker that the material before it does or does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service.  

In Bull v Repatriation Commission [2001] FCA 1832 Emmett and Allsop JJ (Moore J agreeing) observed that:

[21] There is no doubt that the Tribunal is obliged to look at all the material, not just some of it. It is not entitled at this point to find facts or reject matters. See generally Gleeson v Repatriation Commission (1994) 34 ALD 505, 509.

[22]  The formation of the opinion called for by subs 120(3) involves an assessment of the factual material before it. It involves reaching an opinion about a factual matter. It is, in that sense, a question of fact: Bey, supra at 373 and Repatriation Commission v Owens (1996) 70 ALJR 904…

In Bailey, the Court held that the Tribunal had not properly discharged its statutory duty under section 120(3) of the VEA.  It had become involved in resolving conflicts in evidence and gone outside the process of forming an opinion as to whether, on the material before it, there was a hypothesis which was reasonable.  As such, there was an error of law.

The High Court’s comments in Byrnes v Repatriation Commission [1993] HCA 51, at [11] are apposite to the case:

Once a reasonable hypothesis is raised, the question for the Commission is then whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury was war-caused. The Commission will be so satisfied if it is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved …, either by proof beyond reasonable doubt that a fact or facts relied upon to support the hypothesis are not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis …

Bailey is a useful illustration of a situation where there is some material pointing to a reasonable hypothesis, but also significant evidence to support a finding, beyond a reasonable doubt, that a fact or facts relied upon to support the hypothesis are not true, or that there are further facts which are inconsistent with the hypothesis.  Under these circumstances, it might be advisable for a decision-maker to accept that a reasonable hypothesis has been raised for the purposes of s.120(3) of the VEA and move on to the fact-finding process required to assess whether there are facts relied upon to support the hypothesis that are not true, or whether there are further facts, inconsistent with the raised hypothesis, of sufficient strength to displace the hypothesis beyond a reasonable doubt.

This is perhaps particularly so where a SOP factor refers to matters which do not involve expert evidence, in this case the service-related consumption of a certain quantity of alcohol.  An applicant’s evidence to this effect is likely to constitute sufficient material pointing to a reasonable hypothesis of connection between service and the claimed condition.