�

Merkel J

8 September 1998

[Full Text]

�

This was the second appeal to the Federal Court by Mr Winch against a decision of the Tribunal that his calcific aortic stenosis was not war-caused. On the first occasion, his appeal was allowed and the matter was remitted to the AAT for rehearing. (See 12�VeRBosity�83).

At the rehearing of the matter, the AAT was constituted by three members, one of whom, Ms Shanahan, had been a member of the AAT which had previously heard the matter. Mr Winch applied to the AAT for Ms Shanahan to disqualify herself on the ground that there was a reasonable apprehension of bias as a consequence of her previous participation in the matter. The AAT ruled against him and heard and determined the matter remitted to it by the Federal Court.

The AAT handed down its decision affirming the decision of the Repatriation Commission that Mr�Winch's calcific aortic stenosis was not war-caused and remitted the assessment of the General rate of pension to the Commission. This was based on a finding that he did not satisfy subsection 24(1)(c) of the VE�Act and therefore did not qualify for the Special rate of pension.

Mr Winch raised four grounds of appeal to the Federal Court. First, whether the AAT erred in its application of ss�120(1) and 120(3) of the Act by failing to satisfy itself beyond reasonable doubt of the matters set out in s�120(1). Secondly, whether a fair-minded observer could conclude that the AAT, or more accurately Ms Shanahan who sat as a member of the AAT, had formed preconceived views adverse to Mr�Winch in respect of the issues to be determined by the AAT. Thirdly, whether the AAT denied him procedural fairness by consulting and referring to text books in its decision which were not in evidence before it at the hearing. Fourthly, whether the AAT erred in law in finding that he did not qualify for payment of pension at the Special rate, as he had failed to satisfy the requirements of s�24(1)(c) of the Act.

As Mr Winch's appeal related to operational service, the Tribunal was required to determine the matter in accordance with the "reasonable hypothesis" standard of proof in subsections 120(1) and (3) of the VE Act. Two hypotheses were put forward to connect the applicant's calcific aortic stenosis with his war service. The first hypothesis was that episodes of tonsillitis and rheumatic fever suffered during war service caused or contributed to his calcific aortic stenosis. The second was that his war-caused smoking habit had caused or contributed to his calcific aortic stenosis.

Medical evidence was put forward by Dr Rosenbaum before the AAT that smoking which contributes to atherosclerosis that affects the aorta might, in addition to aging, or some undefined process, accelerate atherosclerotic changes in the valve itself. Dr Rosenbaum conceded that there was no medical research that supported his hypothesis and added that it would be a difficult matter to investigate. This hypothesis was not supported by Dr Hammond who gave evidence for the Commission.

As the claim was lodged before 1�June� 1994, Statements of Principles were not applicable and the approach outlined by the High Court in the cases of Bushell and Byrnes was required to be followed. Mr Winch's counsel submitted that Dr Rosenbaum was an eminent cardiologist speaking within the sphere of his expertise and gave clear and unequivocal evidence in support of his hypothesis which he believed to be a reasonable one. It was submitted that there was a conflict between two medical opinions, so the real issue to be decided was whether or not the Commission was able to establish that the raised facts could be disproved beyond reasonable doubt in the manner required in s 120(1). It was contended that as the AAT had decided this question under s 120(3), it had erred in law.

The Commission submitted that the AAT had correctly identified the statutory framework and addressed itself to the correct question under s 120(3) namely, whether the whole of the material before it raised a reasonable hypothesis to connect calcific aortic stenosis with the applicant's war service. It was said that the AAT correctly regarded the question of the reasonableness of the hypothesis put forward by Dr�Rosenbaum as one of fact for it to determine and, in arriving at its conclusion, did not err in law as it was clearly open on the material for it to form the view that the hypothesis was not a reasonable one. The material before the AAT included evidence that there were no post operative signs of atherosclerosis in the applicant's aortic valve, there was no research evidence or epidemiology supporting Dr�Rosenbaum's hypothesis and the applicant's histology also failed to support the hypothesis. In substance it was said that the only positive material to support the hypothesis was Dr Rosenbaum's opinion and that was expressed tentatively.

Merkel J referred to the High Court's decision on the application for special leave in the case of Repatriation Commission v Owens and said that the question of whether material raises a reasonable hypothesis is a question of fact and that it was open to the AAT on the evidence to determine that the hypothesis was not a reasonable one. Therefore, the AAT had not erred in law in its consideration of the medical evidence.

Mr Winch submitted that Ms�Shanahan's participation in the first AAT hearing and certain questions asked, and interventions made, by her in the course of the first and the second hearing were such that a fair-minded observer might entertain a reasonable apprehension that Ms�Shanahan might not bring an impartial and unprejudiced mind to the resolution of the question involved in the matter before the AAT. It was contended that Ms Shanahan's conduct justified a reasonable apprehension of bias by pre-judgment.

Merkel J said:

In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100, Gaudron and McHugh JJ said that what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.

Merkel J concluded that the circumstances of Mr Winch's second hearing before the AAT fell a long way short of an apprehension of bias by pre-judgment. The first AAT decision did not determine the reasonableness of the hypothesis which was considered at the second hearing. In the first AAT decision there was no substantive discussion of the reasonableness of the hypothesis of Dr� Rosenbaum which linked the applicant's aortic valve stenosis with smoking; that was the substantive issue to be considered and determined at the second hearing. Rather, the first decision on this aspect turned on the absence of evidence that the applicant's smoking habit was war-caused. Merkel J also rejected the contention that questions asked by Ms�Shanahan indicated apprehended bias.

However, in the present case, the applicant was given ample opportunity to deal with the substance of the matters referred to in the texts which were in issue, and able to be dealt with by the parties at the hearing.

Mr Winch's counsel submitted that the issue of whether he satisfied section 24(1)(c) of the VE Act did not arise as the Tribunal had not found that his incapacity was 70% or more in terms of the General rate. Merkel J rejected this submission also as the applicant was previously assessed at that rate and it was open to the Tribunal to reject the application under section 24 on any of the grounds it determined to be appropriate. The Tribunal had therefore not erred in law.

The Court dismissed Mr Winch's appeal.

�Contents