FEDERAL COURT OF AUSTRALIA

Harris v Repatriation Commission [2000] FCA 1687

DEFENCE AND WAR – veterans’ entitlements – whether failure to remit proceedings notwithstanding errors of law by the Administrative Appeals Tribunal – whether primary judge justified in dismissing application – whether point not taken before the primary judge could be taken on appeal.

DEFENCE AND WAR – veterans’ entitlements – whether primary judge misconstrued definition of “trauma to the lumbar spine” in relevant Statement of Principles.

Administrative Appeal Tribunal Act 1975 (Cth), ss 44(1), 44(4).

Veterans’ Entitlement Act 1986 (Cth), ss 9(1), 13(1), 120, 120A, 196B.

Acts Interpretation Act 1901 (Cth), ss 46A, 48.

Repatriation Commission v Keeley (2000) 98 FCR 108, considered.

Repatriation Commission v Deledio (1998) 83 FCR 82, applied.

Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550, cited.

Repatriation Commission v Stares (1996) 66 FCR 594, cited.

University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, applied.

Coulton v Holcombe (1986) 162 CLR 1, cited.

Water Board v Moustakas (1988) 180 CLR 491, cited.

Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409, cited.

Australian Fisheries Management Authority v P W Adams Pty Ltd (No 2) (1996) 66 FCR 349, cited.

Arnott v Repatriation Commission [2000] FCA 1336, cited.

Mason v Repatriation Commission [2000] FCA 1409, cited.

Grain Elevator Board (Victoria) v Dunmunkle (1946) 73 CLR 70, cited.

Hunter Resources Ltd v Melville (1988) 164 CLR 234, cited.

Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348, cited.

TERRENCE JOHN HARRIS v REPATRIATION COMMISSION

V 538 of 2000

WHITLAM, SACKVILLE AND MANSFIELD JJ

SYDNEY (Heard at Melbourne)

24 NOVEMBER 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

2.      The appellant pay the respondent’s costs.

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:

THE PROCEEDINGS

1                     This is an appeal from a decision of a Judge of this Court: Harris v Repatriation Commission (2000) 31 AAR 270. The primary Judge dismissed a so-called “appeal” pursuant to s 44(1) of the Administrative Appeals Act 1975 (Cth) (“AAT Act”) on a question of law from a decision of the Veterans’ Appeal Division of the Administrative Appeals Tribunal (the “AAT”).  The AAT had affirmed a decision by the Veterans’ Review Board (the “Board”) that the appellant’s lumbar spondylosis was not “war caused” within the meaning of s 9(1) of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”).  The Board had earlier affirmed a decision of the respondent (“the Commission”) rejecting the appellant’s claim to a pension in respect of his lumbar spondylosis.  The AAT also made other orders, but these are not the subject of the appeal to this Court.

2                     The case is unusual because the primary Judge held that the AAT had made two errors of law, yet his Honour declined to remit the matter to the AAT for further consideration according to law.  By dismissing the appeal from the decision of the AAT, his Honour in effect affirmed the decision notwithstanding the AAT’s errors of law.

3                     The primary Judge held that the AAT erred by applying the wrong Statement of Principles (“SoP”) determined by the Repatriation Medical Authority (the “Authority”), pursuant to s 196B(2) of the VE Act.  The AAT applied an SoP gazetted on 9 September 1998 (No 52 of 1998).  It was common ground before the primary Judge that the AAT should have applied an earlier SoP, namely No 105 of 1995 as amended by Nos 334 and 358 of 1995. SoP No 105 of 1995 was in force on 3 September 1996, the date the Commission rejected the appellant’s claim, although it was revoked by SoP No 165 of 1996 (which itself was revoked by SoP No 52 of 1998).

4                     Counsel for each party before the primary Judge specifically accepted that the decision of the Full Court in Repatriation Commission v Keeley (2000) 98 FCR 108 required the AAT to apply the earlier SoP. In Repatriation Commission v Keeley, it was held that an applicant who had sought review of an adverse decision by the Board was entitled to have his application determined according to the terms of a revoked SoP in force at the date of the Commission’s decision.

5                     The primary Judge also held that the AAT had failed to apply correctly s 120(1) and s 120(3) of the VE Act. In particular, his Honour held that the AAT had not considered whether any available hypothesis connecting the appellant’s condition with the circumstances of his service in Vietnam was consistent with the “template” found in the applicable SoP.  The primary Judge held that the VE Act, as construed by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82, at 97-98, obliged the AAT to address this question.

6                     Despite these errors, the primary Judge declined to remit the matter to the AAT for rehearing.  His Honour took the view that to do so would be futile, for two reasons:

·        The difference between the wording of the two SoPs was “of no practical consequence”.  Thus the decision of the AAT would have been no different had the correct SoP been applied.

·        Had the AAT addressed the question it was bound to address, it would have inevitably concluded that the only hypothesis available to the appellant was not consistent with the requirements of the SoP.  The appellant’s claim thus would have failed in any event, by reason of s 120(3) of the VE Act.  His Honour’s conclusion that the appellant’s claim was bound to fail turned on a particular construction of the definition of the expression “trauma to the lumbar spine” in SoP No 105 of 1995 (as amended). We shall return to the question of construction later.

7                     In these circumstances, his Honour applied the principle that if a Court hearing an appeal under s 44(1) of the AAT Act finds an error of law but nonetheless considers that the decision was clearly correct on the material before the AAT, it is open to the Court to dismiss the appeal: Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550, at 560-562, per Sackville J. The appellant does not challenge the principle but does challenge his Honour’s application of the principle to the present case.

the legislative framework

the veteran affairs act

8                     Section 13(1) of the VE Act provides that where a veteran has become incapacitated from “a war-caused injury” or a “war-caused disease”, the Commonwealth is liable, subject to the Act, to pay a pension by way of compensation to the veteran. Section 9 of the VE Act defines the expressions “war-caused injury” and “war-caused disease”:

“(1)     Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a)                the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)                the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

…

but not otherwise”.

9                     Section 120 addresses the standard of proof in relation to claims for a pension:

“120    Standard of proof

(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.

(2)               ….

(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)               …; or

(c)                …;

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.

Note:   This subsection is affected by s 120A.”

10                  Section 120A is as follows:

“120A  Reasonableness of hypothesis to be assessed by reference to 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)               …;

that upholds the hypothesis.”

11                  The functions of the Authority are set out in s 196B:

“196B   Functions of Authority

(1)               This section sets out the functions of the Repatriation Medical Authority.

Determination of Statement of Principles

(2)               If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

(a)               operational service rendered by veterans; or

(b)               …; or

(c)                …;

the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

(d)               the factors that must as a minimum exist: and

(e)                which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.”

12                  A determination of the Authority under s 196B of the VE Act is a disallowable instrument for the purposes of s 46A of the Acts Interpretation Act 1901 (Cth). A determination must be notified in the Gazette and takes effect, unless a date is specified in the determination, on the date of notification: Acts Interpretation Act 1901 (Cth), s 46A(1)(a)(i), s 48(1)(a), (1)(b)(iv).

the statement of principles

13                  It will be recalled that the primary Judge held that the SoP applicable to the present case was No 105 of 1995 (as amended).  Insofar as relevant to the present proceedings, that SoP provided as follows:

“1.       Being of the view that there is sound medical-scientific evidence that indicates that lumbar spondylosis and death from lumbar spondylosis can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans’ Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis or death from lumbar spondylosis with the circumstances of that service, are:

            …

(g)   suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis; or

…

4.              For the purposes of this Statement of Principles:

…

‘lumbar spondylosis’ means a degenerative joint disease, attracting ICD code 721.3, 721.42, 722.52, 722.73 or 722.93, affecting the lumbar spine, (L1-L5, L5-S1), causing local pain and stiffness, sometimes with sciatic radiation due to nerve root pressure by protruding discs or osteophytes, and having degenerative changes in the lumbar spine;.

…

‘trauma to the lumbar spine’ means an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness and altered mobility or range of movement of the joint, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred.  Where medical intervention for the injury has occurred (eg splinting, corticosteroid injection, surgery) and there is evidence relating to the extent of injury and treatment, such evidence may be considered;”  (Emphasis added.)

14                  There was only one relevant difference between SoP No 105 of 1995 and the SoP in fact applied by the AAT (SoP No 52 of 1998).  The latter referred to “altered mobility or range of movement of that part of the spine” in the definition of “trauma to the lumbar spine”, while SoP No 105 of 1995 referred to “altered mobility or range of movement of the joint”.

15                  There was a dispute between the parties to the present appeal as to the correct construction of the bolded words in the definition of “trauma to the lumbar spine” in SoP no 105 of 1995 (reproduced in [13] above). The Commission contended that the words “acute symptoms and signs of” qualified the phrase “altered mobility or range of movement of the joint”.  On the Commission’s view, there could be no trauma of the lumbar spine unless the injury caused acute symptoms and signs of altered mobility or range of movement of the joint.  On the appellant’s view, trauma of the lumbar spine could occur whenever there was altered mobility or range of movement of the joint regardless of whether the alterations were accompanied by acute symptoms and signs.

16                  It should be noted that that a subsequent SoP, No 27 of 1999 (gazetted on 3 March 1999), substituted a new definition of “trauma to the lumbar spine” which put the position beyond doubt.  The definition was as follows:

“‘trauma to the lumbar spine’ means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine.  These acute symptoms and signs must last for a period of at least seven days following their onset save for where medical intervention for the trauma to the lumbar spine has occurred….”

the deledio test

17                  It was common ground that the AAT, in applying s 120(1) and s 120(3) of the AAT Act, was obliged to apply the four stage approach laid down in Repatriation Commission v Deledio.  That approach involves the following steps (at 97-98):

“1.       The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

2.         If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11).  If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3.         If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.  It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP.  The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)).  If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.

4.         The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail.  It is only at this stage of the process that the Tribunal will be required to find facts from the material before it.  In so doing, no question of onus of proof or the application of any presumption will be involved.”

background

18                  The appellant was born on 25 November 1946.  He enlisted in the Australian Army on 10 February 1964 and was discharged on 19 August 1971.  He re-enlisted on 20 August 1971 and was again discharged on 21 May 1973.  Between 22 April 1966 and 12 May 1967, the appellant rendered “operational service”, as defined in s 6 of the VE Act, in Vietnam.  He did so as a member of the 5^th Battalion Royal Australian Regiment which was principally engaged in patrols around Nui Dat.

19                  From 1992 onwards, the appellant made a series of claims relating to conditions said to be war-caused injuries or diseases.  The consequence was that he was ultimately awarded a pension at the rate of 60 per cent with effect from 18 March 1992.

20                  On 11 July 1996, the appellant lodged an application for an increase in the rate of pension from 60 per cent.  He also made claims in respect of hearing loss, tinnitus and “back problems”.

21                  On 3 September 1996, the Commission determined that the appellant’s bilateral tinnitus was war-caused, but rejected his other claims.  The claim based on lumbar spondylosis was rejected because the appellant had produced no history of trauma to the lumbar spine during a period covered by the VE Act.

22                  The appellant sought review of the Commission’s decision.  On 19 May 1997, the Board affirmed the decision of the Commission in relation to the appellant’s lumbar spondylosis and other conditions.  The Board, however, assessed the appellant’s pension at 70 per cent of the general rate.

23                  The appellant then sought review by the AAT of the Board’s decision.  He pursued only claims based on his conditions of contact dermatitis and lumbar spondylosis.  At the hearing, the Commission conceded that the condition of contact dermatitis should be assessed at 90 per cent of the general rate.  In its decision of 5 March 1999, the AAT determined that the appellant’s lumbar spondylosis was not war-caused.  In reaching this conclusion the AAT applied SoP No 52 of 1998.

THE AAT’S DECISION

24                  As we have noted, the AAT took the view that SoP No 52 of 1998 applied to the appellant’s claim.  The AAT also took the view that the expression “acute symptoms and signs of” qualified the words “altered mobility or range of movement of that part of the spine”.  Accordingly, it considered that the definition of “trauma to the lumbar spine” in SoP No 52 of 1998 could not be satisfied unless the appellant had “acute symptoms and signs of altered mobility or range of movement resulting from the relevant injury”.

25                  The AAT recorded the appellant’s claim that he had suffered a back injury while on patrol through “rubbishy scrub”.  At the time he was carrying a back pack weighing approximately 100 pounds.  According to the appellant he had been propelled forward by his section commander.  His back pack shifted and he fell on his back.  The appellant said that his back had been sore after the incident, but he had not received medical attention, other than taking aspirin.  He could not recall whether he had suffered any limitation of movement in consequence of the injury.

26                  The AAT referred to the evidence of a rehabilitation physician, Dr Stone, which suggested that a person could suffer a limitation of movement without being consciously aware of it.  Dr Stone had expressed the view that the appellant might not have recalled any limitation of movement because the injury would not have been “overt”.

27                  The AAT acknowledged that Repatriation Commission v Deledio had laid down a four stage procedure which the AAT was obliged to follow.  The AAT found that the appellant had satisfied the first stage, because a hypothesis existed connecting the appellant’s admitted lumbar spondylosis with his service (although the AAT did not identify precisely what the hypothesis was).  The appellant had also satisfied the second stage as there was “obviously” an SoP in force, namely SoP No 52 of 1998.

28                  The AAT found, however, that the appellant had not satisfied the third stage, which required consideration of whether the hypothesis was reasonable and, in particular, whether it was consistent with the factors specified in SoP No 52 of 1998.  The AAT considered that there was no evidence of altered mobility or range of movement.  In these circumstances it was not open to it to find that there was an available hypothesis which included the appellant suffering altered mobility or range of movement.  To do so would be to make an assumption “arising in the abstract”: cf Repatriation Commission v Stares (1996) 66 FCR 594, at 601, per curiam.  The AAT concluded that no available hypothesis fitted the “template” established by SoP No 52 of 1998 and therefore the hypothesis was not reasonable.

29                  For these reasons, the AAT concluded that the appellant’s claim failed.

THE PRIMARY DECISION

30                  The primary Judge recorded the agreement of the parties that the AAT should have applied SoP No 105 of 1995 (as amended), rather than SoP No 52 of 1998.  His Honour noted that the appellant’s counsel had not suggested that there was any significant difference between the two instruments. He concluded that any variations were of “no practical consequence”.

31                  The primary Judge expressed the view that the AAT had correctly identified the stage of the inquiry it had reached, namely the third of the stages specified in Repatriation Commission v Deledio.  But, in his opinion, the AAT had “misconceived how that inquiry was to be prosecuted”.

32                  His Honour pointed out that a key question was the correct construction of SoP No 105 of 1995, specifically the definition of “trauma to the lumbar spine”.  His Honour addressed this question as follows (at [30]-[32]):

“In the present case the minimum factors the SoP identified that could relate lumbar spondylosis to operational service were the suffering of a trauma to the lumbar spine before the clinical onset of lumbar spondylosis which trauma was itself related to the service rendered by the person.

Insofar as the trauma component of those factors is concerned this requires (inter alia) that the injury in question caused the development of ‘acute symptoms and signs’ of (i) pain, (ii) tenderness and (iii) altered mobility or range of movement.  Though the preposition ‘of’ only precedes the word ‘pain’ in the SoP’s definition I am satisfied that the definition is to be read as if ‘of’ preceded the words ‘tenderness’ and ‘altered’ as well.  The applicant has submitted to the contrary, contending that the definition is to be read as if it referred to ‘acute symptoms and signs of pain and/or tenderness, and [meaning ‘together with’] altered mobility’ etc.  When one has regard both to the balance of the sentence in which the definition appears (and particularly to the words ‘and where such acute symptoms and signs last for a period of at least one week’) and to what, ordinarily, would be the work done by the preposition ‘of’ in a sentence constructed in the manner of the definition, the definition must be construed as I have proposed.  I should add that the construction is the one propounded by the respondent.

The requirement, then, that there be ‘signs and symptoms’ of each of the three stipulated matters necessitates that there be an indication of, or phenomenon evidencing, each: eg definition II of ‘sign’ and that of ‘symptom’ in the Shorter Oxford English Dictionary (‘SOED’).  Moreover, given the requirement that the signs and symptoms must be ‘acute’ – ie that they be sharp or act ‘keenly on the senses’: SOED, ‘acute’; there would need to be significant manifestations, variously, of pain, of tenderness and of altered mobility etc.  As the respondent contends, the definition contemplates a significant injury.”

33                  The primary Judge observed that it was arguable that the AAT should have been prepared to assume, for the purposes of formulating a hypothesis connecting the appellant’s service to his current disability, that he had suffered altered mobility.  But even if that were so, it fell short of a hypothesis that the appellant had suffered acute symptoms and signs of that altered mobility, as SoP No 105 of 1995 required.

34                  It was clear enough, in his Honour’s view, that the AAT had not addressed the actual issue posed by the third stage of the process required by Repatriation Commission v Deledio, namely whether the available hypothesis was consistent with the “template” to be found in the applicable SoP.  But this error of law did not necessarily mean that the matter should be remitted for redetermination. His Honour considered that the case was appropriate for the application of the “futility principle”.  Had the AAT asked the correct question, it would have been bound to find that the available hypothesis was not consistent with the template established by SoP No 105 of 1995.

35                  His Honour reasoned as follows (at [39]-[40]):

“Bearing in mind that the contentious SoP factor in the present case was whether there were (inter alia) ‘acute signs and symptoms of altered mobility etc’, Dr Stone’s evidence was not consistent with, nor did it point to, the existence of this factor.  Altered mobility of which a person is unaware (even given the stresses and preoccupations associated with a patrol) cannot be said to be suggestive of an ‘acute sign or symptom’ of that altered mobility.  Dr Stone’s evidence apart, all that there was to go on in the material before the Tribunal were Mr Harris’ inability to recollect whether he suffered altered mobility and his actions immediately after the incident which were not themselves suggestive of any such altered mobility.

The material indicated signs and symptoms of pain, but no more.  The matters relied upon by the Tribunal in refusing to assume the existence of altered mobility…point inescapably to the conclusion that it could not properly on the material before it have made the assumption that Mr Harris suffered acute signs and symptoms of altered mobility.”

36                  Accordingly, the application was dismissed.

the appellant’s submissions

37                  The appellant’s submissions were narrow in scope.  Mr De Marchi, who appeared on behalf of the appellant, contended that the primary Judge was incorrect in concluding that the errors of law committed by the AAT were of no consequence.  According to Mr De Marchi, it followed that the primary Judge was in error in concluding that it would be futile to remit the proceedings to the AAT for determination according to law.

38                  It should be noted that the appellant did not dispute a number of propositions, including the following:

·        the Court hearing an appeal under s 44(1) of the AAT Act may refuse relief, notwithstanding that the AAT has committed errors of law, if the Court considers that the AAT’s decision was clearly correct on the material before it;

·        if the primary Judge’s construction of SoP No 105 of 1995 was correct and if that SoP was (as the primary Judge thought) applicable to the proceedings, the appellant’s claim would be defeated by s 120(3) of the VE Act; and

·        the differences between SoP No 52 of 1998 (applied by the AAT) and SoP No 105 of 1995 (held by the primary Judge to be the applicable determination) were immaterial for the purposes of the present case.

39                  The appellant relied essentially on two arguments.

40                  The first argument required Mr De Marchi to resile from a concession he made in the proceedings at first instance.  It will be recalled that those proceedings were conducted on the basis that the Full Court decision in Repatriation Commission v Keeley had the consequence that SoP No 105 of 1995, and not any later SoP, applied to the appellant’s claim in respect of his lumbar spondylosis.

41                  On the appeal to this Court, Mr De Marchi argued that, on a more careful reading, Repatriation Commission v Keeley did not require the conclusion that the revoked SoP No 105 of 1995 applied to the appellant’s claim.  He contended that it was open to the AAT to apply a later SoP, if its terms were more favourable to the appellant.  Indeed, according to Mr De Marchi, the SoP applicable to the appellant’s claim was neither SoP No 105 of 1995, nor SoP No 52 of 1998.  Rather, it was SoP No 27 of 1999, the terms of which were more favourable to the appellant than any of its predecessors (see at [16] above).

42                  Mr De Marchi acknowledged that the primary Judge’s attention had not been drawn to SoP No 27 of 1999.  Nonetheless, he argued that the primary Judge had erred by failing to take into account the existence of SoP No 27 of 1999 in determining whether it was futile to remit the proceedings to the AAT.  According to Mr De Marchi, had his Honour taken SoP No 27 of 1999 into account (assuming the appellant’s revised interpretation of Repatriation Commission v Keeley to be correct), he would necessarily have concluded that an order remitting the matter to the AAT would not be futile.

43                  The appellant’s second submission was that the primary Judge had misconstrued the definition of “trauma to the lumbar spine” in SoP No 105 of 1995.  According to Mr De Marchi, the words “acute symptoms and signs of” did not qualify the expression “altered mobility or range of the joint”.  It followed that the material before the AAT was sufficient to support a hypothesis consistent with the requirements of SoP No 105 of 1995.  This was because the evidence was sufficient to support a hypothesis that the appellant had sustained an injury in Vietnam which caused altered mobility, even though it may not have caused acute symptoms and signs of altered mobility.  For this reason also, according to Mr De Marchi, there would be utility in remitting the proceedings to the AAT for redetermination.

REASONING

WHICH STATEMENT OF PRINCIPLES?

44                  The appellant’s first submission does not merely involve him being permitted to argue a point of law which was not put to the primary Judge.  The submission requires the appellant to withdraw a concession specifically made before the primary Judge in order to clear the way for him to attack the exercise by the primary Judge of a discretion conferred by s 44(4) of the AAT Act.  Moreover, the attack depends not only on establishing the correctness of the point of law conceded before the primary Judge, but on the conclusion that the applicable SoP was one the existence of which was not drawn to the attention of the primary Judge.  The appellant’s submission assumes that the primary Judge’s discretion could be said to have miscarried by reason of a combination of a legal argument not put to him (indeed the point being expressly conceded) and the existence of delegated legislation to which his attention was not directed.

45                  No explanation was provided by the appellant’s counsel for the failure to raise the point of law before the primary Judge or to draw his Honour’s attention to SoP No 27 of 1999.  Clearly, the appellant’s counsel was aware at that time of the Full Court’s decision in Repatriation Commission v Keeley.  All that seems to have happened is that a different view has now been taken of the reasoning of the Full Court and of the true ratio of the case.  Presumably (although we do not know), SoP No 27 of 1999 was overlooked in the proceedings at first instance.

46                  In these circumstances, we do not think it appropriate to allow the appellant to raise these issues for the first time on appeal, even assuming that they are capable of establishing that the primary Judge’s discretion miscarried.  The High Court has emphasised the exceptional nature of the power to allow a party to take points on appeal that were not made an issue at the trial.  In University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, at 483, the Court said this:

“It is elementary that a party is bound by the conduct of his case.  Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”

See also Coulton v Holcombe (1986) 162 CLR 1, at 7-8, per Gibbs CJ, Wilson, Brennan and Dawson JJ; Water Board v Moustakas (1988) 180 CLR 491, at 497, per Mason CJ, Wilson, Brennan and Dawson JJ.

47                  There are circumstances in which an appellant may be permitted to agitate issues expressly abandoned at the trial:  see Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409, at 429, per Carr J (with whom Black CJ agreed).  But the circumstances must be special and ordinarily involve no factual controversy.  In the present case, the conduct of the proceedings before the primary Judge may have been quite different if the appellant had raised the points upon which he now relies. It would have been necessary, for example, to explore whether the appellant’s representative had taken the construction point before the AAT and, if not, whether it was permissible to raise the point for the first time on an application for judicial review: cf Australian Fisheries Management Authority v P W Adams Pty Ltd (No 2) (1996) 66 FCR 349. We also take into account the fact that both parties accepted that it was open to the appellant, should he wish to do so, to bring a fresh claim based on SoP No 27 of 1999, although any increase in pension would presumably be prospective only.

48                  In our view, it is neither expedient nor in the interests of justice to allow the appellant to raise these issues for the first time on appeal.  The appellant’s first submission therefore fails.

The DefinItion of “TRauma to the lumbar spine”

49                  The appellant criticised the primary Judge’s interpretation of the definition as imposing on the language of SoP No 105 of 1995 an impermissible strain which, so it was argued, could not have been intended by the Authority. The appellant restated the thrust of his submissions to the primary Judge as recorded by his Honour in the passage set out at [32] above, but added a contention that any ambiguity in the definition should be resolved in his favour. The appellant conceded that the definition should be read as if the preposition “of” governed the noun “tenderness”. He contended, however, that “altered mobility or range of movement” was in effect a separate requirement of the definition for which no symptoms and signs were necessary.

50                  For its part, the Commission relied on the primary Judge’s construction, which has since been adopted to in two judgments at first instance. In Arnott v Repatriation Commission [2000] FCA 1336, Sundberg J followed a similar approach to that of the primary Judge. In Mason v Repatriation Commission [2000] FCA 1409, Weinberg J said that an interpretation of the definition by the AAT, consistent with the approach of the primary Judge in the present case, was correct.

51                  In our view, the construction adopted by the primary Judge accords with the ordinary meaning of the words in the definition. It was not necessary for the drafter of the definition to repeat the preposition “of” before “tenderness” and “altered mobility” in order to arrive at the meaning conveyed by the ordinary rules of grammar to which his Honour gave effect. No doubt some might have inserted a so-called “Oxford” comma after the word “tenderness”, but its absence is immaterial. The primary Judge’s construction is supported by the reference in the same sentence to “such acute symptoms and signs” lasting for a period of a week after the injury. The natural reading of that reference is that the acute symptoms and signs of pain, tenderness and altered mobility must have lasted for at least a week.

52                  The expression “acute symptoms and signs of” can readily be applied to the concept of “altered mobility or range of movement”. The dictionary definitions show that the expression requires that there be an indication of, or phenomenon evidencing altered mobility or range of movement. Bearing in mind that the SoP was concerned with “medical-scientific evidence” (s 196B(2)), the primary Judge’s conclusion is reinforced by medical definitions. Butterworths Medical Dictionary (2^nd ed, 1978), for example, contains the following definitions:

“Symptom The consciousness of a disturbance in a bodily function; the subjective feeling that there is something wrong in the working of the body and of which the patient complains, e.g. shortness of breath, pain, fatigue, palpitation, etc. The symptom may or may not be accompanied by observable signs.

Sign Objective evidence of disease or deformity.

Objective symptom A symptom accompanied by signs from which the existence of the symptom can be deduced.

Subjective symptom One appreciated by the patient only; all symptoms are, strictly speaking, subjective.

Objective sign A sign that is appreciable to the examiner’s senses.

Subjective sign A symptom appreciable only by the patient.”

53                  Once regard is had to these uncontroversial medical usages, it is apparent that the definition in SoP No 105 of 1995 required objective evidence of altered mobility or range of movement, such alteration lasting for a period of at least a week. Ordinarily, of course, the objective evidence would be accompanied by symptoms appreciated by the patient. This supports what his Honour described as the “balance” between the two clauses, the first of which required the “development” of what, for practical purposes, are objective symptoms “within 24 hours”, and the second of which required that they “last for a period of at least one week immediately after the injury occurs”. In our opinion, the requirement that symptoms, once developed, endure for a minimum period (in the absence of medical intervention) was intended to extend to “altered mobility or range of movement”. It is unlikely that the provision relating to medical intervention was intended to apply only to cases of altered mobility or range of movement where intervention occurred within 24 hours. That, however, would be the consequence of the appellant’s construction of the definition.

54                  We have not overlooked the fact that SoP No 27 of 1999 introduced an amended definition which more or less accords with the appellant’s construction of SoP No 105 of 1995. As we understood Mr De Marchi’s submissions, he did not suggest that the amended definition materially assists on the question of construction of the earlier definition. In any event, we do not think that it does assist. There is authority that amending legislation can be taken into account in the interpretation of prior legislation, at least to avoid a result that would render the amending legislation unnecessary or futile: Grain Elevators Board (Victoria) v Dunmunkle Corporation (1946) 73 CLR 70, at 86, per Dixon J; Hunter Resources Ltd v Melville (1988) 164 CLR 234, at 254-255, per Dawson J; cf Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348, at 382, per Gummow J. This is not such a case. On the contrary, the amending SoP would be futile if the appellant’s construction of the earlier SoP were to be adopted.

55                  Since we take the view that the construction adopted by the primary Judge accords with the ordinary meaning of the words used, we do not think there is any reason to apply the principle that, in a case of genuine ambiguity, a construction favourable to the veteran should be preferred. The appellant’s second submission should therefore be rejected.

Conclusion

56                  It follows from what we have said that the primary Judge did not err in dismissing the application. The appeal must therefore be dismissed, with costs.

Associate:

Dated:              24 November 2000