FEDERAL COURT OF AUSTRALIA

Arnott v Repatriation Commission [2001] FCA 262

DEFENCE AND WAR – veteran’s entitlements – error of law – whether “acute…signs of pain” in the relevant Statement of Principles means “severe” pain – whether Tribunal failed to address the correct question – whether proof of facts in issue in determining whether the facts raised by the claimants gave rise to a reasonable hypothesis – whether matter should be remitted to the Tribunal

Administrative Appeals Tribunal Act 1975 s 44(1)

Veterans Entitlements Act 1986 (Cth) s 9

Repatriation Commission v Deledio (1998) 83 FCR 82 – applied

Harris v Repatriation Commission (2000) 31 AAR 270 – applied

Repatriation Commission v Keeley (2000) 98 FCR 108 – applied

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

Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 – cited

Santa Sabina College v Minister for Education (1985) 58 ALR 527 – cited

Perpetual Trustee Co (Canberra) Ltd v Lewis (1994) 119 FLR 38 - cited

ROBERT JOSIAH ARNOTT v REPATRIATION COMMISSION

V 784 OF 2000

SPENDER, MARSHALL AND MERKEL JJ

MELBOURNE

16 MARCH 2001

THE COURT ORDERS THAT:

1.      The appeal be allowed.

2.      The orders of the primary judge made on 19 September 2000 be set aside.

3.      The decision of the Administrative Appeal Tribunal dated 18 June 1999 be set aside and the matter be remitted to the Administrative Appeal Tribunal to be determined in accordance with law.

4.      The respondent pay the appellant’s costs of the appeals to the primary judge and to the Full Court.

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

SPENDER J:

1                     I have had the benefit of reading in draft form the reasons for judgment of Merkel J.  I agree with those reasons and with the orders that his Honour proposes, save that on the question of costs, having regard to the conduct of the proceedings on behalf of the appellant, and on the appeal, I would order that there be no order as to costs, either of the appeal or of the proceedings at first instance.

I certify that the preceding one

(1)   numbered paragraph is a true

copy of the Reasons for Judgment

herein of the Honourable Justice

Spender.

Associate to Justice Merkel:

Dated:                                      16 March 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

MARSHALL J:

2                     I agree with the reasons and orders proposed by Merkel J.

I certify that the preceding one (1)

numbered paragraph is a true

copy of the Reasons for Judgment

herein of the Honourable Justice

Marshall.

Associate:

Dated:              16 March 2001

REASONS FOR JUDGMENT

MERKEL J:

3                     This is an appeal from the judgment and orders of a single judge of the Court in which his Honour dismissed the appellant’s appeal from a decision of the Administrative Appeals Tribunal (“the AAT”) on a question of law under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).  The AAT had affirmed a decision made by the Veterans’ Review Board (“the Board”) that, inter alia, the appellant’s lumbar spondylosis was not “war-caused” within the meaning of s 9(1) of the Veterans Entitlements Act 1986 (Cth) (“the 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 made other orders that are not relevant to the appeal.

4                     The appellant relied on three incidents, which occurred during his operational service as a member of the Australian Army in Vietnam between April 1967 and April 1968, to found his claim to a pension under the VE Act on the basis that his lumbar spondylosis was war-caused.

5                     In the first incident (“the first incident”) he put his foot in a hole and fell heavily while on patrol, so that his pack, entrenching tool and extra ammunition “came down on top of me too and dug into my lower back”.  He received treatment for a sprained ankle, which was sore and swollen, and was off duty until his ankle recovered.  Although the appellant did not report any problem with his back, which was less painful than the ankle, he suffered pain in his back for at least a week.  Once his ankle had recovered, he was able to return to duty.  The appellant also had some difficulty in sitting down and standing up.  The Appellant’s army medical records record that he suffered a sprained right ankle, which was strapped on 29 September 1967.  There was no record of a back injury or treatment for a back injury.

6                     In the second incident (“the second incident”), the appellant tripped over some wire and fell.  The equipment he was carrying “dug into my back when I fell down”.  He suffered pain in his back for “a few days…probably eight days”, although he was still able to carry on with his duties.

7                     The third incident (“the third incident”) occurred when the appellant “stepped into…quick sand” and was pulled out.  He claimed he suffered “a lot of strain on my back”.  He had a sore back (although remaining on duty) and some limitation of movement for “at least a week”.  The medical report of Mr Hugh Hadley, an orthopaedic surgeon states that on 25 March 1997 the appellant told him that the appellant suffered low back pain for about two days after this episode.

8                     I adopt the primary judge’s summary of the statutory context in which the appellant’s claim was to be determined.

9                     Section 120(1) of the VE Act provides:

“Where a claim under Part 11 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.”

Sub‑section (3) provides in part:

“In applying subsection (1) … 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 …;

(b)               that the disease was a war‑caused disease …; or

(c)               that the death was war‑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.”

Section 120A modifies the operation of s 120 in relation to claims made after 1 June 1994.  Section 120A(3) provides:

“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) …

…

that upholds the hypothesis.”

10                  The Repatriation Medical Authority is established by s 196A.  Its functions are set out in s 196B.  Section 196B(2) provides in part:

“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 …

…

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.”

Section 196B(14)(b) provides that a factor causing or contributing to an injury, disease or death is related to service rendered by a person if “it arose out of, or was attributable to, that service”.

11                  In Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”) at 97 a Full Court set out the steps that ss 120 and 120A require the AAT to take in relation to a claim lodged under Part II of the VE Act for a pension arising out of operational service rendered by a veteran.  The steps are as follows:

“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 [be] 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 ….  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.”

The acronym SoP stands for Statement of Principles.

12                  The Full Court in Deledio approved (at 95‑96) the following passage from the decision of the primary judge reported at (1997) 47 ALD 261 at 275:

“it is necessary to repeat that the SoP has no function in relation to the proof or disproof (under s 120(1)) of the particular facts of a veteran’s case.  The SoPs function is limited to prescribing a medical‑scientific standard with which a hypothesis must be consistent – so that the SoP can ‘uphold’ the hypothesis.

…

Therefore when s 196B(2) says a factor ‘must … exist’ and ‘must be related to service’, it is not interfering with the functions of ss 120(1) and 120(3).  On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc).  …  The particular claim then has to fit the template laid down in the SoP.  The Byrnes methodology is applied.  Do the facts raised by the claimant give rise to a reasonable hypothesis?  Proof of facts is not in issue at this point.  The hypothesis will not be reasonable if it is:

(i)                 contrary to proved or known scientific facts;

(ii)               obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or

(iii)             (since 1994) inconsistent with (not upheld by) an applicable SoP.

If the hypothesis is reasonable the claim will succeed unless:

(iv)             one or more facts necessary to support it are disproved beyond reasonable doubt; or

(v)               the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.

At no stage is there an onus of proof on the claimant.  If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact.”

13                  For the purposes of the present case it is important to note that in the third step, the AAT is limited to asking whether the facts raised by the claimant give rise to a reasonable hypothesis.  Proof of facts is not in issue at this point.  See also Harris v Repatriation Commission (2000) 31 AAR 270 (“Harris”) at 279-281 per Finn J.

14                  The SoP that was in force at the date of the Commission’s decision was Instrument No. 105 of 1995 (entitled Statement of Principles concerning Lumbar Spondylosis) which was amended by Instruments No 334 and 358 of 1995 (“the 1995 SoP”).  The SoP that was in force at the date of the decision of the AAT was Instrument No 27 of 1999 (entitled Revocation and Determination of Statement of Principles Concerning Lumbar Spondylosis) (“the 1999 SoP”).

15                  At the AAT hearing the appellant and the respondent agreed that the applicable SoP was the 1999 SoP which, accordingly, was applied by the AAT.  Subsequently, a Full Court in Repatriation Commission v Keeley (2000) 98 FCR 108 held that, subject to a contrary intention, it is to be presumed that the SoP to be applied is that in force at the time of the Commission’s determination which, in the present case, was the 1995 SoP.  The Full Court concluded that, as rights accrue under an SoP, where the SoP applicable at the date of the Commission’s decision is more beneficial than the SoP that replaces it, the earlier SoP is to apply unless a contrary intention is clearly disclosed.  Lee and Cooper JJ at [46] said that in respect of beneficial legislation, such as the VE Act, it may be concluded that Parliament

“intended that the review of a decision on a claim made pursuant to a Statement more beneficial to a claimant than the terms of a Statement that replaced the former Statement after the decision had been made, is to be conducted as if the former Statement had not been revoked.”

16                  See also at [80-81] per Kiefel J.

17                  It seems to be implicit, if not explicit, in the approach of the Full Court in Keeley that a contrary intention might be found if the terms of a later SoP are more beneficial to a claimant than the terms of the SoP which it replaced.  Of course, the contrary intention must be discerned from all of the terms of the later SoP and not just particular aspects of it.

18                  Applying the reasoning in Keeley to the present case, subject to contrary intention, the applicable SoP was the 1995 SoP, being that in force at the time of the Commission’s decision.  The appellant contended before the primary judge that the 1999 SoP applied by the Tribunal was more onerous than the 1995 SoP and that the 1995 SoP ought to have been applied, notwithstanding the appellant’s agreement at the AAT that the 1999 SoP was applicable.  Before this Court the appellant contended that the 1999 SoP was more beneficial and therefore was properly applied by the AAT.

19                  Both the 1995 and the 1999 SoP listed the factors that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis with the circumstances of the operational service rendered by a veteran.  For present purposes the relevant factor in the 1999 SoP was factor 5(h) being, “suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis”.  The 1999 SoP relevantly defined “trauma to the lumbar spine” as meaning:

“…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.”

20                  The same factor was listed in the 1995 SoP.  The counterpart definition of “trauma to the lumbar spine” in the 1995 SoP was relevantly defined as meaning:

“…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.”

21                  The primary judge identified the differences between the definitions in the 1999 SoP and the 1995 SoP as follows:

·               the 1995 SoP speaks of “an injury” to the lumbar spine while the 1999 SoP refers to “a discrete injury” to the lumbar spine;

·               the 1995 SoP speaks of an injury “caused by the force of an extraneous physical or mechanical agent” while the 1999 SoP does not deal with the cause of the injury;

·               the 1995 SoP speaks of altered mobility or range of movement of “the joint” while the 1999 SoP speaks of altered mobility or range of movement of the “lumbar spine”

·               the 1995 SoP requires the “acute symptoms and signs” to last for at least a week after the injury occurs while the 1999 SoP requires them to last for at least seven days after their onset.

22                  If I were required to determine whether, in accordance with the decision in Keeley, the 1995 SoP or the 1999 SoP were applicable to the decision of the AAT in the present case, I would have some difficulty in doing so.  Little argument was addressed to this question in the course of the appeal and, as pointed out earlier, whether the necessary contrary intention was disclosed was to be discerned from the terms of the replacement SoP read as a whole.  However, I am satisfied that it is unnecessary to make such a determination for the purposes of this appeal as the same outcome will be reached irrespective of which SoP is to be applied.  In particular, as will become apparent, the critical question for the purposes of the appeal is whether the AAT erred in law in determining that the appellant had not suffered “acute…signs of pain” for at least 7 days, which is a minimum requirement that must be satisfied under both SoPs.

23                  The AAT dealt with the three incidents relied upon by the appellant as follows:

“17.     There were three episodes relied upon by Mr Arnott to assert his claim that factor 5(h) was satisfied.  Those incidents involved tripping over a wire when wearing a heavy pack, stepping into a hole in the ground whilst on patrol which caused severe ankle injury and being pulled out of a swampy, muddy area causing his back to be wrenched.

18.       In so far as the definition of ‘trauma to the lumbar spine’ is concerned we have dismissed the third episode where he was pulled from a muddy area as being relevant to the satisfaction of factor 5(h) because Mr Arnott said that he had some back pain for only two days following that episode.  Even if the symptoms then amounted to ‘acute symptoms and signs’ they did not last for ‘at least seven days’.

19.       With respect to the episode of stepping into a hole, Mr Arnott said he suffered a severe ankle injury at the time.  We have no quarrel with that and note that the condition of ‘sprained right ankle’ is an accepted disability.  Mr Arnott said that he was wearing a heavy pack at the time, with an entrenching tool attached to it.  He said that he fell and his pack fell with him and the entrenching tool ‘dug into’ his lower back.  At the time he was on patrol.  He said his pack was taken off and he returned to camp.  He had treatment for his ankle, and this is documented in the T documents.  However, he said he had lower back pain for ‘at least a week, maybe longer’.  He said he was impeded in his ability to move around but recalled that on the one hand he was required to sit and rest by reason of his ankle, but this caused his back to have increased discomfort.  When asked if he reported his back injury at the time that he was treated for his ankle injury, Mr Arnott said ‘I don’t believe I did’.  He said he was mainly concerned at the time with his ankle injury.

20.       We accept and find as a fact that Mr Arnott did suffer some back pain as a result of the incident where he sprained his ankle.  We accept also that the ankle injury appeared to be considerably more severe than any back discomfort he then had.  It was suggested that the ankle injury may have ‘masked’ the severity of any back injury.  There is no evidence of this.  The failure to report the back injury may also be explained by Mr Arnott being more concerned with treatment for his ankle, however there is nothing to indicate that the back pain arising from this incident amounted to ‘acute symptoms and signs of pain and tenderness’.

21.       For the purposes of this analysis and in consideration of the remaining injury, we have interpreted the word ‘acute’ as it appears in the definition of ‘trauma to the lumbar spine’ to mean ‘sudden’, in the sense of giving a temporal connection to a traumatic event and also to mean ‘severe’ so as to describe the nature of the symptoms.

22.       With respect to the incident when Mr Arnott tripped on a wire whilst on patrol, he stated that he was carrying a heavy pack with additional ammunition and a machine gun.  He said he fell carrying his pack and ammunition and was told by his superiors to remain prone, in fear that he may have been caught in a Viet Cong booby trap.  When the site was cleared and he got to his feet, Mr Arnott said that he recalled pain in his lower back which he said lasted for ‘probably eight days’.  When asked whether he recalled any limitation of movement in his spine, Mr Arnott said that one of his colleagues relieved him of some of the weight that he was carrying, but he was still able to carry on his duties.

23.       We have decided that, for similar reasons as above, the definition of ‘trauma to the lumbar spine’ is not satisfied.  This incident was again not reported and whilst we accept that Mr Arnott had some back pain for up to 8 days following the event, there is no evidence of the pain amounting to ‘acute symptoms and signs of pain and tenderness’ nor could we be satisfied that the symptoms that he did suffer from – even if they were acute – caused ‘altered mobility or range of movement of the lumbar spine’.”

24                  The AAT rejected the first and second incidents because the back pain suffered was not acute because it was not severe.  The second incident was also rejected on the ground that there was no limitation of movement.  The third incident was rejected because the AAT, relying upon the medical history given by the appellant to Mr Hadley in 1997, rather than the appellants 30 year old recollection of the incident, found that the back pain lasted for only two days.

25                  In support of his appeal to the primary judge the appellant argued that the AAT erred in law in ascribing to the words “acute pain” the meaning “sudden and severe”.  His Honour concluded that the word “acute” in the definition contemplates signs or symptoms that are “severe or significant” and that the conclusion of the AAT that the back pains complained of by the appellant were not “severe” was “plainly open on the evidence, and indeed pointed to it”.

26                  Although the appellant relied upon numerous grounds of appeal, as the hearing of the appeal progressed, only two matters, which were raised in the written submissions of the appellant, assumed importance.  The first matter related to whether the AAT, in finding that the hypothesis relied upon by the appellant did not fit with the “template” laid down in the 1999 SoP, had erred in law by dealing with proof and disproof of the various facts that must fit the template at that stage (ie the third stage laid down in Deledio).  The second matter related to whether, for the purposes of the applicable SoP, the pain complained of “may be acute but not necessarily severe”.

27                  I deal first with the issue of whether the AAT did embark upon a fact finding process and, if so, whether it erred in law in doing so.  I have some difficulty with the approach taken by the AAT.  It appeared to treat itself as engaged in a fact finding task in relation to the three incidents in order to determine whether a reasonable hypothesis was raised by the material.  The AAT evaluated all of the material concerning each incident and made findings of fact, based upon that material, upon which it relied in rejecting the appellant’s claim at the third stage laid down in Deledio.  For example, implicitly, if not explicitly, it preferred the appellant’s account of his pain to Mr Hadley in 1997 (lasting 2 days) to his oral evidence to the AAT (lasting at least a week).  However, as explained above, in carrying out the third step in Deledio, namely of forming an opinion as to whether the hypothesis raised is a reasonable one, the AAT is required to determine whether the “particular claim” fits the “template” laid down in the SoP.  As was stated by the Full Court at 95-96 in Deledio, the question at that stage is whether the facts raised by the claimant give rise to a reasonable hypothesis, with proof of the relevant facts not being in issue at that stage.  Thus, in evaluating the material before it and making findings of fact on the basis of that material, the AAT was not confining itself to the facts raised by the claimant but, rather, was putting proof of facts in issue at that stage rather than at the next stage, the fourth step in Deledio.  The AAT erred in law in doing so.  I would add that if the AAT considered itself as being within the fourth stage then it failed to apply the “beyond reasonable doubt” standard laid down in s 120(1) of the VE Act.

28                  The second alleged error relates to the “pain” aspect of the trauma definition in the 1999 and the 1995 SoPs.  Certain observations of Finn J in Harris at first instance and of the Full Court on appeal, [2000] FCA 1687, concerning the definition of “trauma to the lumbar spine” in the 1995 SoP are pertinent.  In Harris at 280-281 Finn J said of the definition in the 1995 SoP:

“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.”

29                  The Full Court at [51]-[52] agreed with the construction adopted by Finn J stating that it “accords with the ordinary meaning of the words in the definition”.

30                  In substance, Harris was concerned with whether there was material before the AAT that raised a case of “acute” altered mobility or range of movement for at least a week after the injury for the purposes of the 1995 SoP.  However, in my view the views expressed at first instance, and on appeal, of the meaning of “acute” symptoms or signs in the sense of being “sharp”, acting “keenly on the senses” or being “significant manifestations” appropriately define the word “acute” as used in both the 1995 and the 1999 SoPs.  The Macquarie Dictionary definitions of “severe” connote, relevantly, a pain that is extreme or harsh.  Thus, although the difference in degree may not be substantial, an “acute” pain does not necessarily equate with a “severe” pain.

31                  Importantly for present purposes, as the AAT addressed only the question of whether the pain was “sudden” and “severe” it failed to address the question of whether the pain was “acute”, as defined in Harris, which was the question required to be addressed in stage three in Deledio: see Harris at 281 per Finn J.  Similarly, the AAT also erred in law in incorrectly requiring that, for a pain to be “acute” it must be “severe”.

32                  It follows from the foregoing that the primary judge also erred in dismissing the appeal to him on the ground that it was “plainly open” to the AAT to conclude “on the evidence” that the pain was not “acute” because there was no evidence that it was “severe”.

33                  Counsel for the Commission submitted that, even if the Court were satisfied that the AAT erred in law, the matter should not be remitted as the AAT’s decision would have been no different if the AAT had not erred.  It was contended that the present case is identical to the situation in Harris where Finn J held that the AAT had made two errors of law but declined to remit the matter to the AAT for further consideration according to law because he was of the view that the errors of law did not lead to an incorrect decision on the material before the AAT.

34                  The first error of law found by Finn J was that the AAT had applied the wrong SoP, but his Honour concluded that that was “of no practical consequence” as the decision of the AAT would have been no different had the correct SoP been applied.  The second error of law, which arose out of his Honour’s view that the SoP required evidence of an “acute” alteration of mobility or range of movement, meant that the AAT failed to address the question it was bound in law to address.  However, Finn J concluded that had the AAT addressed the correct question, it would have inevitably arrived at the same conclusion as the only hypothesis available to the appellant was not consistent with the requirements of the applicable SoP, with the consequence that the claim would have failed in any event.

35                  Finn J 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: see Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560-562 per Sackville J.  An error of law has also been said not to have been involved in a decision “if the decision must have been the same regardless of the error”: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 384.  On appeal in Harris the appellant did not challenge the above principles.  In Morales (at 560-562) Sackville J referred to authorities to the effect that it was open to the Court, when exercising its discretion under s 44(4) of the AAT Act, to make “such order as it thinks appropriate by reason of its decision”, to dismiss the appeal when, inter alia, the decision was clearly correct on the material before it.

36                  The exercise of the discretion conferred under s 44(4) must depend on the circumstances of the particular case.  Thus, where it is futile to remit the matter because the same result would necessarily be arrived at on the remitter, the discretion to refuse relief will be exercised: see Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 at 213-214.  But if “it is possible” that a different result might be arrived at on the remitter, the Court is more likely to decline to exercise the discretion to refuse relief: see Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540 and Nguyen at 214.

37                  A critical question in the present case is whether it is futile to remit the matter.  Before the AAT that appellant did not claim that he suffered “acute” back pain or immobility for at least 7 days after his injury with the consequence that his claim must have failed in any event.  Thus, senior counsel for the Commission is correct in contending that even if the AAT had not erred in law it would have arrived at the same result on the material before it as there was nothing that established that the back pain was “acute” as that term was defined in Harris, and the material is also unclear as to the nature, extent and duration of any altered mobility.

38                  Although the futility principle provided the basis for the dismissal of the appeal in Harris, in that case there was no evidence available of altered mobility or range of movement as the claimant was unable to recollect whether he suffered altered mobility and his actions immediately after the incident were not themselves suggestive of any such altered mobility.  Consequently, Finn J said (at 282) that the circumstances were such that the futility principle ought be applied.  The situation in the present case is quite different in that, for reasons that one can only speculate about, scant attention was given to the nature or extent of the appellant’s back pain or immobility.  As a consequence the evidence adduced before the AAT does not enable any conclusion to be reached as to whether, on a remitter, the appellant is, or is not, able to provide further information as to the nature or extent of the pain, or of any altered mobility, suffered by him.  In that regard on a remitter, subject to the rules of procedural fairness, further evidence may be called: see Perpetual Trustee Co (Canberra) Ltd v Lewis (1994) 119 FLR 38 at 46-47.  Thus in the present case, unlike the situation in Harris, the “futility principle” is not applicable.

39                  I am mindful of the fact that the appellant’s solicitor, who appeared for the appellant before the AAT and in the Court, must bear responsibility for the failure to explore the nature and extent of the appellant’s pain and mobility which were key elements of his claim.  However, the review by the AAT is inquisitorial rather than adversarial and, in discharging its duty to arrive at the correct or preferable decision in the case before it, the AAT may itself take the initiative and request such information: see Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425.

40                  In all the circumstances I have concluded that it is appropriate to make orders allowing the appeal and setting aside the orders of the primary judge and ordering in lieu thereof that the decision of the AAT dated 18 June 1999 be set aside and the matter be remitted to the AAT to be determined in accordance with law.

41                  As the appellant has succeeded the usual order would be that the Commission pay his costs of the appeals to the primary judge and to this Court.  However, the problems that have beset the present matter have been caused in large part by the failure of the appellant’s solicitor to ensure that the appellant’s claim was presented to the AAT in a manner that raised a reasonable hypothesis in accordance with the steps set out in Deledio.  Ultimately, I am not persuaded that that failure should result in the usual order for costs being departed from.  Accordingly, with some hesitation, I have concluded that the Commission should pay the appellant’s costs of the appeals to the primary judge and to this Court.

Associate:

Dated:              16 March 2001