This really takes us to the other point which we say is of importance and that is that the the Tribunal identified the fact that evidence or material was available and said:

In our submission, having recognised that that information was available, rather than saying that because the applicant did not bring any evidence about it, it was the duty of the Tribunal given the inquisitorial nature of its proceedings, to go to that material.

Although we fail to see why it would have been apparent to have put additional information before the Tribunal, because as is quoted there, Dr Hainsworth had said it is: "well known that the diet of men in the war at this time, especially those serving in the Middle East as the deceased did, was lacking in vitamins A and C and was high in nitrates".

That uncontested assertion formed the basis for the argument by the applicant that there was a reasonable hypothesis connecting diet and the ultimate development of the hypernephroma but the Tribunal thought that additional information should have been brought and identified that that information was available.

BRENNAN J. Is it saying anything more than that the hypothesis was not really seriously put in this case?

Meadows. That is what the Tribunal said at the end of that passage, Your Honour, but if it was the case that it was being put, and it was, that there was a possible connection between diet and the hypernephroma and the Tribunal was aware of information about diet, then we say it was under a duty to either go to that information itself and, if it was of significance or relevance, invite the parties to comment upon it or they should have invited the parties, one or other of them, to put that evidence before the Tribunal if they thought it was appropriate. If any authority for that was needed, we would recite to Adamou v Director-General of Social Security (1985) 3 AAR 321 and the judgment of Wilcox J at page 326.

We say there was a duty to obtain the information or at least to seek it out from the parties. This proposition would also be supported by what His Honour Mr Justice Deane said in Sullivan v Department of Transport and so we say that, for those four important reasons, the application for special leave should be acceded to.

BRENNAN J. Mr Malcolm, the Court would be assisted if you would direct your remarks to the problem raised by Mr Meadows with respect to the question of adverse inference from the absence of evidence. I do not think we need trouble you about the construction of subsection 120(3).

Malcolm QC. When one takes the provisions which now appear in the Veterans' Entitlements Act 1986 which parallel those to which reference was made by their Honours Mr Justice Keely and Mr Justice Fitzgerald in the joint judgment in O'Brien v Repatriation Commission (1984) 1 FCR 477, the position remains the same under the present legislation. Under subsection 14(3) of that Act, provision is made for a claim for pension. Section 17 is now the counterpart of section 24A of the former legislation and that is the provision which requires the Secretary to the Department to carry out an investigation of the claim. He is required by section 17(1) to "cause an investigation to be made into the matters to which the claim or application relates", and then to submit a report to the Commission: subsection (2). So it is not the respondent which is required to carry out the investigation, not the Commission, or the Administrative Appeals Tribunal standing in the shoes of the Commission when it becomes seized of the matter; the obligation to investigate is one which is cast upon the Secretary to the Department.

It would be our submission, therefore, that it would be right to recognise consistently with the joint judgment ta the level of the Federal Court, that as a practical matter there are circumstances related to the particular service of the applicant or the ascendant of the applicant where the widow is making the claim, then it is a matter which is proper for the tribunal, or in this case the Full Court to support a view that where a party apparently makes a conscious decision, with the benefit of legal advice, not to give evidence about a particular matter, that is how the Full Court approached it, then there would be justification in assuming that the party had no evidence which would assist his case, that is to say, in the context of section 120(3), no evidence which would assist in putting into the material matter which would raise facts or assist in the raising of facts pointing to a reasonable hypothesis.

DAWSON J. Does it work something like this. Having investigated the matter, having considered all that has been thrown up and having considered the evidence which you have put before us, we are left in the position that we do not think there is a reasonable hypothesis connection, et cetera. But, if you seriously contend there is such a hypothesis, then it is open to you to call evidence and you have not done so, and the fact that you have not done so means that we are fortified in our view that there is no reasonable hypothesis?

Malcolm QC. We would submit that the Full Court went no further than that. Indeed, they found that the Tribunal itself had gone no further than that, but it is perhaps unnecessary for me to make the second point, that, so far as the implication is concerned, it is simply saying that, in the absence of material, and the tribunal going a step further and saying, "Well, we know that there was material available which might have had some bearing upon the matter", there is a conscious decision being made, we simply infer that that material would not assist us in determining whether there was a reasonable hypothesis raised for the purposes of section 120(3). It goes no further than that.

There is no question of a de facto onus, indeed, the Full Court is perfectly clear, saying:

The inference which is drawn is not an inference which is adverse to her or adverse to the claimant in the way in which it might normally be accepted, but simply relating to an implication that such evidence as she might be able to provide would not be of assistance in pointing positively to a connection between the circumstances of war service and the disease which ultimately caused death.

Meadows. (in reply) We would submit that the Full Court went further than simply to put it on the basis that the applicant could have put material before the Tribunal and failed to do so. It goes further than that, in that the Tribunal, having recognised the existence of that information, was under a duty to ascertain it itself and that in that context, it becomes all the more an improper exercise of its function to draw an inference adverse to the applicant.

In having approached the evidence in regard to teh questions of diet on the basis that there was nothing material to support the evidence that was being led in the form of the assertion by Dr Hainsworth, and that an adverse inference could be drawn by reason of the failure to put that evidence before the Tribunal, then to say that the hypothesis expounded by Dr Hainsworth was not accepted is to say that that conclusion was based on their assessment of the weight of that hypothesis when looked at against the background evidence. If it was to be the case taht the material relating to diet, about vitamins and nitrites, had been before the Tribunal, then it may well have come to a conclusion quite different from that in regard to the hypothesis advance by Dr Hainsworth. And one must look at the rejection of that hypothesis against the background of the way in which they treated his evidence.

So, we would say that the drawing of the adverse inference has had a bearing on the final result. We would say that there is a two fold error in the approach of the Tribunal: ine in failing to make the inquiry itself, we would say it was under a duty to do so, and in particular, it was also a failure on the part of the Tribunal to go further than that and say that it would draw an inference adverse to the applicant by reason of the failure to produce that evidence. But, rather, the Tribunal should have gone about its inquisitorial task and made the necessary inquiries, or required the parties to make it.

BRENNAN J. This application concerns the last in a series of statutory provisions notorious for their difficulty of construction and application. We perceive no obvious error of law in the construction which the Full Court of the Federal Court has placed on the relevant provisions of the Veterans' Entitlements Act 1986, and, in particular on subsections (3), (5) and (6) of section 120 of that Act. The correctness of teh judgment, in the light of the findings of the Administrative Appeals Tribunal as expressed in paragraph 73 of their reasons for decision is not, in our opinion, attended with sufficient doubt to warrant the grant of special leave. Accordingly, special leave is refused, with costs.