FEDERAL COURT OF AUSTRALIA

Ogston v Repatriation Commission [1999] FCA 342

VETERANS’ AFFAIRS – Veterans’ Entitlement Act 1986 (Cth) (“the Act”) – Statements of Principles – hypothesis including sub-hypothesis - no relevant Statement of Principles determined at the time application for pension made –relevant Statement of Principles issued by the time claim determined – unambiguous intention of legislature regarding the operation of 120A of the Act

Administrative Appeals Tribunal Act 1975 (Cth), s 44

Veterans’ Entitlements Act 1986 (Cth), ss120, 120A, 196B

Acts Interpretations Act 1901 (Cth), ss 8, 46, 48, 50

McKenna v Repatriation Commission (unreported, Full Court [1999] FCA 323), followed

Bushell v Repatriation Commission (1992) 175 CLR 408, considered

Byrnes v Repatriation Commission (1993) 177 CLR 564, considered

Rodway v The Queen (1990) 169 CLR 515, cited

PHYLLIS NERIDAH OGSTON v THE REPATRIATION COMMISSION

NG 773 of 1998

BURCHETT, BRANSON AND R.D.NICHOLSON JJ

1 APRIL 1999

SYDNEY

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT

Introduction

1                     This is an “appeal” under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from a decision of the Veterans’ Appeals Division of the Administrative Appeals Tribunal (“the Tribunal”) constituted by the President of the Tribunal, Mathews J.  The jurisdiction to hear and determine the appeal, being an appeal from the Tribunal constituted by a member who was a Judge, is vested in this Court constituted as a Full Court (s 44(3)(c)).

2                     This appeal raises two issues.  The first issue is whether a claim for a pension brought under Part II of the Veterans’ Entitlements Act 1986 (Cth)(“the Act”), made on or after 1 June 1994, is to be determined by reference to the Statements of Principles, if any, in force at the time of the decision on the claim under s 196B(2) of the Act.  At the time that the applicant’s claim for a pension was made, no relevant Statement of Principles had been determined under s 196B of the Act.  However, a relevant Statement of Principles had been issued by the time that the claim was determined.

3                     The second issue is whether, where the material before the Repatriation Commission, or other decision-maker acting in the place of the Repatriation Commission, raises a hypothesis connecting a veteran’s injury, disease or death with the veteran’s service which hypothesis is comprised of two or more sub-hypotheses, each of the sub-hypotheses must be upheld by a Statement of Principles or a determination of the Commission under s 180A(2) of the Act.

4                     This second issue has been determined since the hearing of this appeal by the Full Court of this Court in McKenna v Repatriation Commission [1999] FCA 323.  We respectfully agree with the reasons for decision given in that case.  The Full Court in McKenna’s case dismissed an appeal against the decision of Goldberg J, a decision which Mathews J regarded as binding on her in this matter.  It follows that the present appeal cannot succeed so far as it challenges the decision of the learned President in this regard.

5                     In what follows we are concerned only with the first issue identified above.

Legislative Scheme

6                     We repeat the following observations from the reasons for judgment of the Full Court in McKenna’s case:

“Section 120A of the Act, the terms of which, so far as they are presently relevant, are set out below, was introduced into the Act by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth) (“the Amendment Act”).  The Explanatory Memorandum in relation to the Bill for the Amendment Act indicates that the Amendment Act was intended, amongst other things, “to ensure a more equitable and consistent system of determining claims for disability pensions for veterans and their dependants.”  The Explanatory Memorandum contained the following statements:

“The new provisions deal with the determination of claims for pensions made on or after 1 June 1994 by reference to Statements of Principles.  They will still require certain claims to be determined on the basis of a “reasonable hypothesis standard of proof”, but with questions of medical causation to be determined in accordance with the amendments …

The initiative will see the establishment of the Repatriation Medical Authority.

It has become apparent that lay tribunals do not deal with medical-scientific issues consistently and that the adversarial approach to fact finding applied in administrative tribunals is inappropriate for determining medical-scientific issues that call for detailed technical knowledge.

The Repatriation Medical Authority will provide the appropriate forum for the resolution of technical medical-scientific issues.  This will ensure that there will be consistency on medical-scientific issues at all levels of the determining system.

The Authority will prepare Statements of Principles based on sound medical-scientific evidence that will exclusively state what factors related to service must exist to establish a causal connection between particular diseases, injuries or death and service.

…

This change is aimed at ensuring that medical opinions supported by little or no medical-scientific evidence do not prevail over the carefully developed mass of medical-scientific opinion.”

It seems plain enough that the enactment of the Amendment Act reflected legislative dissatisfaction with the then operation of s 120 of the Act, which addresses the standard of proof of, relevantly, a claim under Part II of the Act for a pension in respect of a veteran’s incapacity from disease relating to the operational service rendered by the veteran.

Section 120 relevantly provides as follows:

            “120(1)            Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

            …

(3)               In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)               that the injury was a war-caused injury or a defence-caused injury;

(b)               that the disease was a war-caused disease or a defence-caused disease; or

(c)                that the death was war-caused or defence-caused;

                        as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

The manner of operation of s 120 before the enactment of the Amendment Act has been authoritatively considered on a number of occasions (see, for example, Bushell v Repatriation Commission (1992) 175 CLR 408; Byrnes v Repatriation Commission (1993) 177 CLR 564.)

In Byrnes v Repatriation Commission, a case concerning injury rather than disease, the High Court stated at 571:

“The position may be summarised as follows: (1) First, subsection (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service?  The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable.  If the hypothesis is not reasonable, the claim fails.  Proof of facts is not in issue at this point.  (2) If a reasonable hypothesis is established, subsection (1) of s 120 is applied.  The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) 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.”

Section 120A of the Act has modified the operation of s 120 so far as claims made after 1 June 1994 are concerned.  Section 120A, so far as is here relevant, provides:

“120A  (1)       This section applies to any of the following claims made on or after 1 June 1994:

(a)               a claim under Part II that relates to the operational service rendered by a veteran;

(b)               a claim under Part IV that relates to:

(i)                 the peacekeeping service rendered by a member of a Peacekeeping Force; or

(ii)               the hazardous service rendered by a member of the Forces.

(2)               If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a)               has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or

(b)               has declared that it does not propose to make such a Statement of Principles.

(3)               For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)               a Statement of Principles determined under subsection 196B(2) or (11); or

(b)               a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

(4)               Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

(a)               the kind of injury suffered by the person; or

(b)               the kind of disease contracted by the person; or

(c)                the kind of death met by the person;

as the case may be.”

Tribunal Decision

7                     Mathews J rejected the contention of the applicant that she had a right to have the Tribunal determine her claim according to the law as it existed when her claim was first made.  Her Honour took the view that the intention of the legislature was that s 120A of the Act should apply to all claims that relate to the operational service rendered by a veteran made on or after 1 June 1994 under Part II of the Act.

8                     In our view, Her Honour was plainly correct in this regard.  First, s 120A(1) declares that it applies to claims of the type referred to therein “made on or after 1 June 1994”.  Secondly, and even more tellingly, s 120A(2) requires the Commission in certain circumstances not to determine a claim unless or until the Authority has either determined a relevant Statement of Principles or declared that it does not propose to make such a Statement of Principles.  There could be no point in the Commission delaying its determination of a claim as required by s 120A(2) unless, assuming a relevant Statement of Principles was ultimately determined, s 120A(3) was to have an operation in respect of the Commission’s determination of the claim.

9                     The applicant contended that once she had submitted her claim under Part II of the Act, she had a right to have her claim determined by reference to the law in operation on that day.  She placed reliance on ss 8, 46, 48(2) and 50 of the Acts Interpretation Act 1901 (Cth) (“the Acts Interpretation Act”).

10                  Section 8 of the Acts Interpretation Act is concerned with the effect of the repeal in whole or in part of one Act by another.  We are not concerned with any such repeal.

11                  Section 46 of the Acts Interpretation Act is concerned with the construction of delegated legislation.  Although a Statement of Principles is a “disallowable instrument” within the meaning of s 46A of the Acts Interpretation Act, our concern is with the construction of s 120A of the Act, and not with the construction of any Statement of Principles.

12                  Section 48(2) of the Acts Interpretation Act provides, in effect, that a disallowable instrument may not take effect before the date that it is notified in the Gazette if it would by doing so adversely affect the rights of a person as at the date of its notification.  The Statement of Principles relevant to the applicant’s case did not purport to come into operation before the date of the notification in the Gazette.

13                  Section 50 of the Acts Interpretation Act is concerned with the repeal of disallowable instruments.  No question has arisen in this case concerning the repeal of a Statement of Principles.

14                  In any event, it may be observed that the operation of ss 6, 46 and 50 of the Acts Interpretation Act is subject to any contrary intention shown in the legislation.  We have referred  above  to  the  unambiguous  intention of  the legislature made clear  by the terms of  s 120A of the Act.

15                  We reject the contention that, once the applicant had submitted her claim under Part II of the Act, she had a right to have her claim determined by reference to the law in operation on that day.  We are willing to assume that, upon the making of her claim for a pension, she gained a vested right to receive a pension if the death of her husband was war caused (s 13 of the Act).  However, she had no right to have her claim determined by any particular procedure or to be able to vindicate her claim in any particular way (Rodway v The Queen (1990) 169 CLR 515).

16                  In our view this appeal must be dismissed.  The respondent does not seek an order for costs in its favour.

Associate:

Dated:              1 April 1999