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VeRBosity
Journal of the Veterans' Review Board
�Decisions of the
Federal Court of Australia
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Acne vulgaris - reasonable hypothesis -
whether procedural fairness denied
Repatriation Commission v Deathe
Marshall J
16 September 1998
[Full Text]
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The Repatriation Commission appealed to the Federal Court against a decision of the Tribunal that Mr�Deathe's acne vulgaris was war-caused.
Mr Deathe served in the Army from 1969 to 1971 and rendered operational service in Vietnam. He began to suffer from acne vulgaris during his service in Vietnam. The humid conditions in Vietnam, combined with a lack of normal daily hygiene for operational reasons, resulted in broken and bleeding pimples forming on his back and shoulders. Infection set in and the condition of his skin was aggravated by carrying a heavy pack on his back. After his discharge from the Army he treated his condition with Ampicillin. He is still required to continue the treatment to prevent his skin breaking out in acne.
The Tribunal found that the evidence raised a reasonable hypothesis connecting the veteran's acne vulgaris with his war service. Dr Stone, a rehabilitation and occupational physician, supported this view whereas Dr Taft, a dermatologist, considered that "its perpetuation a quarter of a century after his war service would indicate that the condition is basically hormonal in origin and not related to the period of war service".
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Appeal grounds
The Commission's first contention was that the material before the AAT was incapable of supporting its decision that there was a reasonable hypothesis connecting Mr Deathe's acne vulgaris with the circumstances of his war service. It was contended that the effect of Dr Stone's evidence was that he did not maintain his opinion that there was a connection between war service and acne vulgaris when confronted with the opinions of Dr Taft and Dr Hoare.
Marshall J rejected this, saying that Dr�Stone had advanced an opinion which he did not abandon when confronted with contrary opinions from specialists.
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The Commission also contended that the AAT denied it procedural fairness and had therefore made an error of law. It was alleged that the AAT had indicated that there was no need for Dr� Hoare to be called to give evidence.
Marshall J rejected this submission also, saying that there was no basis for suggesting that the AAT had encouraged the Commission not to make submissions or had given Dr�Hoare's report no weight. It had simply not accepted it in the light of other evidence.
Marshall J concluded that the Commission was not denied procedural fairness in the hearing of the matter.
The Commission submitted finally that the Tribunal had not applied subsection 120(1) of the VE Act in the manner laid down by the Full Court of the Federal Court in the case of Repatriation Commission v Bey (1997) 149 ALR 721. The Full Court said at paragraph 4 on page 724:
"If the decision-maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis."
It was submitted that having found that the hypothesis was reasonable, the Tribunal had failed to apply subsection 120(1) in order to determine whether the hypothesis was disproved beyond reasonable doubt. Marshall J concluded that the Tribunal had made an error of law on this ground. His Honour said:
"It was submitted on behalf of Mr�Deathe that par 51 of the decision showed that all that was required to be taken into account by the AAT, under s 120(1) of the Act, was taken into account. I reject that submission. In my view the AAT did not proceed to the step it was required to take which was identified in the par numbered 4 in the judgment of the Full Court in Bey at 724. Rather, it reached 'the third step' referred to in Bey without proceeding to apply s 120(1). It did not specifically examine, as it was required to do, whether one or more of the facts necessary to support the hypothesis was disproved beyond reasonable doubt. Nor did it examine whether the truth of another fact in the material, which is inconsistent with the hypothesis, was proved beyond reasonable doubt, thus disproving the hypothesis."
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Formal decision
The Court allowed the Commission's appeal and remitted the matter to the Tribunal for rehearing.