FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Thomas [2002] FCA 1497

VETERANS’ AFFAIRS – review of decision of Administrative Appeals Tribunal – whether Tribunal erred by not applying Statement of Principles in force at time of its decision – whether claimant had an accrued right to have a decision reviewed in accordance with the Statement of Principles in force at the time of the decision of the Veterans’ Review Board decision, as well as that in force at time of Commission’s decision – whether Tribunal applied the appropriate Statement of Principles to the claim – nature of accrued right.

Veterans’ Entitlements Act 1986, ss 5C, 6A, 7, 13, 9, 120, 120A, 196B

Administrative Appeals Tribunal Act 1975 (Cth), s 43

Acts Interpretation Act 1901 (Cth), s 50

Deledio v Repatriation Commission (1997) 47 ALD 261 – referred to

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

Repatriation Commission v Gorton (2001) 110 FCR 321 – followed

Repatriation Commission v Keeley (2000) 98 FCR 108 [2000] FCA 532 – followed

Gorton v Repatriation Commission [2001] FCA 286 – referred to

REPATRIATION COMMISSION v JACK WILLIAM THOMAS

D.9 of 2002

MANSFIELD J

3 DECEMBER 2002

DARWIN

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The decision of the Administrative Appeals Tribunal given on 2 May 2002 is set aside.

3. The application of Jack William Thomas to the Administrative Appeals Tribunal for review of the decision of the Veterans’ Review Board made on 7 August 1997 is remitted to the Administrative Appeals Tribunal for rehearing and redetermination according to law.

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

REASONS FOR JUDGMENT

1                     This is an application by way of appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 2 May 2002. The Tribunal set aside a decision of a delegate of the Commission given on 11 November 1996, and affirmed by the Veterans’ Review Board (the Board) on 7 August 1997. It substituted a decision that the condition suffered by the respondent (Mr Thomas), namely malignant neoplasm of the prostate (the condition) was war caused. It remitted the matter to the Commission to determine the amount of Mr Thomas’s entitlement under the Veterans’ Entitlements Act 1986 (the Act).

2                     Mr Thomas had claimed a pension by way of compensation in respect of the condition under the Act on 1 November 1996. The application was made under Part II of the Act, as Mr Thomas had engaged in “operational service” for the period from 23 October 1939 to 12 October 1945, during World War II: see s 6A. In the circumstances, he had engaged in “eligible war service” as defined in s 7 and was a “veteran” as defined in s 5C of the Act.

3                     He claimed that the condition was related to his war service.

4                     Section 13 of the Act provides that the Commonwealth is, subject to the Act, liable to pay a pension by way of compensation to a veteran who has become incapacitated from a war caused disease. Section 9 sets out the circumstances in which a disease is taken to be war caused. It provides relevantly:

“(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.

…”

5                     The standard of proof to be applied by the Commission, and on review by the Tribunal, in considering a claim for benefits under the Act in respect of a disease which is said to be war caused is that provided in s 120(1) of the Act. It provides:

“(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.”

That standard of proof has been described as imposing a “reverse criminal onus”, e.g. per Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261.

6                     Section 120(3) then provides:

“(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.”

A note to each of those sub-sections remarks that the sub-section is affected by s 120A.

7                     Section 120A applies to Mr Thomas’s claim because it was made after 1 June 1994, and is a claim under Part II of the Act that relates to operational service rendered by a veteran. 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) or (11); or

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

that upholds the hypothesis.”

Statements of Principles are determined by the Repatriation Medical Authority under s 196B of the Act. The Statement of Principles in respect of a particular kind of injury or disease sets out the factors that must as a minimum exist, and 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 a particular injury or disease with the circumstances of that service. In effect, the circumstances of the claim are imposed upon the template of the Statement of Principles, and if they fit, then the hypothesis connecting the injury or disease with the service of the claimant is upheld and is reasonable. If they do not fit, then the hypothesis connecting the injury or disease with the service of the claimant is not upheld as reasonable and s 120(3) then directs the decision maker to be satisfied beyond reasonable doubt that there is no sufficient basis for determining that the injury or disease is war-caused.

8                     Pursuant to s 196B, the Repatriation Medical Authority had determined a Statement of Principles in respect of the condition on three occasions arguably relevant to the present matter. The first relevant Statement of Principles is by Instrument No.95 of 1995 dated 8 March 1995 (the 1995 SoP). The 1995 SoP was amended by a further Statement of Principles being Instrument No. 191 of 1996 dated 9 December 1996 (the 1996 SoP). The final relevant Statement of Principles was issued on 9 November 1999 and is instrument No.84 of 1999 (the 1999 SoP). It revoked the 1995 SoP and the 1996 SoP, and substituted the Statement of Principles contained within it.

9                     A significant issue on this application is as to the applicable Statement of Principles for the decision of the Tribunal.

the tribunal’s reasons

10                  After addressing the history relevant to the claim, the evidence, and the respective arguments, the Tribunal turned to consider Mr Thomas’s claim. It correctly approached the matter on the basis that the claim would succeed if his condition was war caused, and that it should be satisfied about that fact unless it were satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. It referred to the terms of ss 120(1) and (3) and of s 120A. As noted, s 120(3) directed it to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the disease of Mr Thomas was war caused if, after considering the whole of the material, it was of the opinion that the material did not raise a reasonable hypothesis connecting the disease with the circumstances of Mr Thomas’s service. The Tribunal approached the claim on the basis that, if applying the relevant Statement of Principles, the circumstances of Mr Thomas fitted into the template of the relevant Statement of Principles, the hypothesis connecting the disease to the service would be reasonable, and if they did not fit that template it would not raise a reasonable hypothesis connecting the disease with the circumstances of the service. In approaching the matter in that way, the Tribunal was, in my view, correctly adopting the course which it was required to take as explained by the Full Court (Beaumont, Hill and O’Connor JJ) in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98 (Deledio).

11                  The Full Court in Deledio indicated there is a four step process involved in addressing a claim such as the present. The Tribunal must first consider whether all the material pointed to a hypothesis connecting the condition with the circumstances of Mr Thomas’s war service. If no such hypothesis arose, the application was to be dismissed. Once such a hypothesis did arise, the Tribunal had to determine whether there was a Statement of Principles in force applicable to the condition. Thirdly, if there was a Statement of Principles then in force it had to form the opinion whether the hypothesis raised is a reasonable one. As there described at 97:

“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. 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.”

12                  The reasons why Statements of Principle determined by the Repatriation Medical Authority have that significance is explained in the reasons for judgment of Allsop J (with whom Emmett J agreed) in Repatriation Commission v Gorton (2001) 110 FCR 321, [2001] FCA 1194 at 335, [58]-[59] (Gorton). Finally, the Tribunal must decide under s 120(1) whether it is satisfied beyond reasonable doubt that the condition is not war-caused. If it is not so satisfied, the claim must succeed. If it is so satisfied, the claim must fail.

13                  In practical terms, as counsel for the Commission contended, in the present matter the issues could be reduced to two questions:

(a)                did the material before the Tribunal raise or point to a hypothesis connecting the condition with the service of Mr Thomas that was consistent with the relevant Statement of Principles, and

(b)               was the Tribunal satisfied beyond reasonable doubt that the foundation for any hypothesis connecting the condition with the war service of Mr Thomas was displaced.

14                  For the purposes of addressing those issues, the Tribunal identified the relevant Statement of Principles as the 1995 SoP as amended by the 1996 SoP. Its identification of the 1995 SoP as amended by the 1996 SoP as the relevant Statement of Principles is the first of the two main points which, the Commission contends, the Tribunal erred in law in its consideration of the application.

15                  Clause 1 of the 1995 SoP provided that factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the condition with the circumstances of operational service by the veteran were:

“(a) being exposed to herbicides in Vietnam; or

(b) inability to obtain appropriate clinical management for the malignant neoplasm of the prostate.”

The 1996 SoP replaced (b) with two alternatives namely:

“(b) increasing animal fat consumption by at least 40%, and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate; or

(c) inability to obtain appropriate clinical management for malignant neoplasm of the prostate.”

It was the alternative provided in cl 1(b) of the 1995 SoP as amended by the 1996 SoP which was the subject of evidence before the Tribunal.

16                  There had been extensive evidence before the Tribunal as to Mr Thomas’s diet pre-war, during the war, and post war. That evidence included his own evidence and that of experts analysing his diet to determine his fat consumption. The Tribunal was satisfied that Mr Thomas consumed at least 70 gm per day animal fat during his war service and continuously until the date of its hearing. That limb of cl 1(b) was satisfied. It then addressed the other aspect of that clause, namely that Mr Thomas increased animal fat consumption as a result of or following his war service by at least 40%, in the following terms:

“The only evidence of actual amounts of fat in the applicant’s diet has been provided by Dr English based on the data provided by the applicant. Dr English has calculated the applicant’s pre-war diet to include 66.6 gm/day of fat using the specifications of Instrument 191 as amended. She has also calculated that the applicant’s post-war diet from the data provided has provided 90.6 gm/day fat.

These figures can only be relied on to the extent that the applicant was able to accurately recall specific details of his diet from a period at least sixty years ago to the present day. I accept her calculations but with an allowance for omissions by the applicant due to memory difficulties. Even with assistance in filling out the dietary forms, unless that person assisting was present at the time of consumption and retained a full and clear memory of the relevant events, such allowance must be made.

Dr English concluded that the increase in fat intake by the applicant between his pre and post war diets was 19.2% and stated in her letter of 24 May 2000 (Exhibit D) that ‘the increase in the intake of animal fat (19.2%) between the pre-war and post-war diets (minimum of 20 years post-war) does not meet the 40 per cent increase as required under the (above) instrument 191’

By my calculations, a 40% increase in intake would require an increase of approximately 26.6 gm/day to take the total from 66.6 gm/day to 93.2 gm/day. The difference between the 90.6 gm/day calculated by Dr English as the applicant’s current fat intake and the required minimum increase to 93.2 gm/day is 2.6 gm/day, or less than an extra serve of butter a day. This difference of 2.6 gm/day could easily be accounted for in any allowance for error on the part of the applicant in providing details of his diet.”.

Thus, on the evidence, it was satisfied that the necessary factor in cl 1(b) of the 1995 SoP as amended by the 1996 SoP, namely increasing animal fat consumption by at least 40%, and at least 70 gm/day for at least 20 years before the clinical onset of the condition was satisfied.

17                  The material upon which the Tribunal largely made its findings was, as its reasons indicate, a report provided by Dr English, a nutrition consultant. Based upon responses to a dietary questionnaire, provided by Mr Thomas, she had reported conclusions that the amount of animal fat ingested by Mr Thomas per day in his pre-war diet was 66.6 gm, and in his post war diet was 79.4 gm animal fat per day, applying the 1995 SoP as amended by the 1996 SoP. Dr English had done a similar analysis using the 1999 SoP which produced a pre-war diet measure of 84.7 gm animal fat and a post war diet animal fat consumption of 90.6 gm per day. The reason for the difference is simply that the 1995 SoP as amended by the 1996 SoP defined “animal fat” so as to exclude chicken and rabbit foods whereas the 1999 SoP defined animal fat to include chicken and rabbit foods.

18                  Finally, the Tribunal addressed whether the factor could be causally connected to Mr Thomas’s war service. That is, it proceeded to consider under s 120(1) whether it was satisfied beyond reasonable doubt that the condition producing the incapacity did not arise from a war caused disease. As it was not satisfied of that negative proposition, it concluded that a causal relationship existed between the war service of Mr Thomas and his post war consumption of animal fat. It was not satisfied beyond reasonable doubt, on the material, that the evidence did not raise a reasonable hypothesis connecting the condition with war service. It accordingly, as noted earlier, set aside the earlier decision of the Commission and of the Board.

The grounds of appeal

19                  There were two principal grounds of appeal argued by the Commission.

20                  The first was that the Tribunal had erred in law by applying the 1995 SoP as amended by the 1996 SoP to its determination. It was contended that, in accordance with the decision of the Full Court in Gorton, it should have applied the 1999 SoP. Had it done so, the argument ran, the Tribunal could not have been satisfied in the way it was satisfied that Mr Thomas had increased his animal fat consumption by at least 40% as a result of or following his war service.

21                  The second ground of appeal was that the Tribunal had erred in law by not applying accurately either of the SoPs, but had “mixed and matched” to determine that Mr Thomas had increased his animal fat consumption by at least 40% compared to his pre war diet, so as to fit the template prescribed in the 1995 SoP as amended by the 1996 SoP. The short point is that the Tribunal had accepted as the pre-war animal fat consumption measure a figure calculated by Dr English based upon the 1995 SoP as amended by the 1996 SoP, but in determining the post war consumption of animal fat it had used or worked from the figure provided or calculated by Dr English by reference to the 1999 SoP, and had then in the light of the whole of the evidence determined that Mr Thomas’s fat intake had increased to a little over that figure (to 93.2 gm/day), sufficient to fit within the 40% increase prescribed by the template. The error was significant because, as noted earlier, the measure of animal fat consumption under the 1999 SoP was higher because it included chicken and rabbit products.

Consideration

22                  In Gorton, the Full Court (Heerey, Emmett and Allsop JJ) addressed the issue as to which Statement of Principles should be applied by the Tribunal where there had been a change in the applicable Statement of Principles between the time of the Commission’s decision and the time of the Tribunal’s decision. The Statement of Principles in force at the time of the Tribunal’s decision was more favourable to the claimant than that in force at the time of the claim. The Full Court determined that the Tribunal should first approach the question of entitlement to a pension under the Act by reference to the Statement of Principles in force at the time of its decision. If it determined by reference to that Statement of Principles that there was no entitlement to a pension, only then should it consider whether, by virtue of the Statement of Principles in force at the time of the Commission’s decision there was an “accrued right” which was preserved under that earlier Statement of Principles. In that case, the Commission had determined that the claimant was entitled to a pension under the Act having regard only to the earlier Statement of Principles. The decision had been affirmed by the Board. The later Statement of Principles imposed less onerous criteria upon whether the hypothesis referred to in s 120(3) was upheld. The rationale for the Full Court’s decision was primarily that s 120A(3) and s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) directed the Tribunal to consider the reasonableness of the hypothesis by reference to the Statement of Principles which “is in force”. Heerey J expressed the proposition in the following terms:

“If the current SoP ‘upholds’ the claimant’s hypothesis then the AAT moves, pursuant to s 120(1) to consider whether it has been disproved beyond reasonable doubt. If, however, the current SoP does not uphold the hypothesis, the claimant may then contend, pursuant to Keeley, that he or she has an accrued right under the earlier SoP. If that contention is accepted then again the hypothesis has to be disproved beyond reasonable doubt under s 120(1). … If at the time of claim a claimant could raise one hypothesis consistent with the factors in [that earlier] SoP, the capacity to rely on that hypothesis is a right which a later revoking SoP does not affect because an intention to do so does not appear.” (at 331-332).

23                  Allsop J, with whom Emmett J agreed, referred to the nature and purpose of the Statement of Principles as seeking to apply up to date science in connection with the investigation of a causal connection and by reference to the terms of s 120 and 120A, especially ss 120(3) and 120A(3), and to the role of the Tribunal under s 43 of the AAT Act, and reached the same conclusion. His Honour said at 336:

“The only additional factor which the Tribunal must consider, if it comes to a view that the application of the current SoP leads to a conclusion that the injury, disease or death was not service caused, is that the claimant also has an accrued right to have his or her position judged by reference to the SOP in force at the date of the Commission’s decision by force of the decision in Keeley.”

24                  The earlier decision of the Full Court in Repatriation Commission v Keeley (2000) 98 FCR 108 [2000] FCA 532 (Keeley) involved the converse facts to those in Gorton. The Statement of Principles in force at the time of the Tribunal decision was less favourable to the claimant than that in force at the time of the claim, or at the time of the decision of the Commission to reject the claim. Keeley decided that a claimant is entitled to an accrued right to have his or her claim considered and reviewed by the Tribunal on the basis of the Statement of Principles current at the time of the Commission’s decision, despite the later revocation of that earlier Statement of Principles.

25                  As explained in Gorton, it is only necessary to have regard to any such accrued right if the Tribunal, applying the Statement of Principles current at the date of its review, is of the view that the claim should be refused. The consideration of the Full Court in Keeley focused upon whether the making of the claim, or the determination of the claim by the Commission, gave rise to any accrued right which could not be removed, without the clear intention of the legislature, by the subsequent amendment or substitution of a new Statement of Principles: see s 50 of the Acts Interpretation Act 1901 (Cth). Lee and Cooper JJ at 121 expressed the proposition as follows:

“When the respondent lodged her claim for a pension under the Act, the respondent obtained a right to have that claim determined under the Act according to law.”

And at 123:

“The right that accrued to the respondent upon lodgment of a claim, to have the claim determined under the Act by the Commission, was ‘affected’ accordingly.

…

The terms of s 120A(2) show a clear intention by Parliament that such a Statement is to “affect” the accrued right obtained by the lodgment of a claim under the Act to have the claim decided by the Commission. It is plain that by postponing a right to have a claim decided until a Statement has been determined, Parliament intended that the decision, and therefore the right to have a decision made, may be affected by a Statement determined under s 196B and that a pending claim is to be decided by application of the Statement when determined.”

26                  Kiefel J reached the same result.

27                  It follows from the above consideration that, in my judgment, the Tribunal erred in this matter in determining that the appropriate Statement of Principles first to be addressed was the 1995 SoP as amended by the 1996 SoP. In accordance with Gorton and Keeley, it should first have addressed the 1999 SoP. It did not do so. If, having addressed the 1999 SoP, it did not find that the circumstances of Mr Thomas fitted into the template of the 1999 SoP, it then should have considered whether Mr Thomas had an accrued right by reason of the application, or the decision of the Commission, arising from the application of the 1995 SoP. It did not take that step.

28                  It is the Commission’s contention, if I accede to that proposition, that the matter should be remitted to the Tribunal for further hearing or re-hearing according to law. I propose to do so. I note, however, that the 1995 SoP could not on its face, at least as the matter was presented to the Tribunal, have enabled Mr Thomas’ circumstances to fit into the template of the 1995 SoP. The two factors which, under the 1995 SoP, must exist to fit the template did not include any factor of the nature now presented to the Tribunal, that is any dietary change. The Commission considered Mr Thomas’ claim by reference to the 1995 SoP as it was required to do, because it was the then current Statement of Principles. It concluded that the evidence did not raise a reasonable hypothesis connecting the condition with operational service. The Commission therefore was unable to accept the condition as war caused.

29                  The Board looked at the 1995 SoP as amended by the 1996 SoP. It was entitled to do so as s 139 of the Act provides that it may exercise all of the powers and discretions conferred by the Act on the Commission in like manner as they are required by the Act to be exercised by the Commission, including the requirement in s 120A(3) that the decision be made in accordance with an SoP which “is in force”: cp 43 AAT Act and Gorton at [42]. Its decision was given on 7 August 1997. However, the case presented to the Tribunal based upon dietary change was not presented to the Board. It said in relation to cl 1(b) of the 1995 SoP as amended by the 1996 SoP:

“There is no evidence before the board that any circumstances of the veteran’s service are able to satisfy the requirements of the other factors listed [including that factor].”

30                  In Keeley, both the Commission’s decision and the Board’s decision were made before the change in the Statement of Principles. In Gorton, similarly, the Board’s decision was made before the change in the Statement of Principles (there was an intervening Statement of Principles which does not appear to have required attention). In this matter, at the time of the application and of the Commission’s decision the 1995 SoP was in force. The condition suffered by Mr Thomas did not fit its template. At the time of the Board’s decision, the 1995 SoP as amended by the 1996 SoP was in force. It provided a template for the condition suffered by Mr Thomas, but as noted there was apparently no focus upon whether the condition fitted the template. Then, by the time of the Tribunal’s decision, the 1999 SoP was in force. Neither Keeley nor Gorton therefore had to address the question whether a person in Mr Thomas’ position had an accrued right to have the claim determined by reference to the Statement of Principles in force at the time of the Board’s decision, as well as an accrued right to have the claim determined by reference to the Statement of Principles in force at the time of the Commission’s decision (recognised in Keeley). As the claim is to be reconsidered by the Tribunal, it is appropriate that I make some observations on that issue. I am conscious that the issue was not fully argued before me, although I have had the benefit of written submissions from the parties.

31                  It may be that the Tribunal will not need to resolve that issue. If it accepts the evidence of Dr English referred to in [16] and [17], the template of the 1995 SoP as amended by the 1996 SoP would not be satisfied because the animal fat consumption would not have increased by at least 40%. On my calculations, the increase in daily animal fat consumption from 66.6 gm to 79.4 gm represents an increase of 19.2% rather than the 40% required. But matters of fact are, of course, for the Tribunal and not for the Court. And the evidence accepted by the Tribunal may not be that of Dr English, or indeed her evidence may change.

32                  In Gorton Allsop J (with whom Emmett J agreed) said at 336-337:

“I see no basis either in Keeley or in the Act for any rights to arise or accrue by reference to SoPs which are promulgated after the Commission’s decision and which are revoked before the Tribunal’s review. Nothing in Keeley or the Act mandates that.”

That is consistent with the approach of Keeley as to the circumstance which may give rise to the right said to have accrued. However, as the particular issue did not arise in either Gorton or Keeley, I do not think too much can be made of such remarks. The important step is to identify, by reference to those decisions, the nature of the accrued right which they recognise and why it comes to exist.

33                  Section 50 of the Acts Interpretation Act provides that the repeal of a regulation does not, in the absence of a contrary intention, affect any right accrued under the regulation. Keeley decided that the lodging of a claim for a benefit under the Act gave rise to a right to have the claim determined under the Act according to law, and that s 50 applied to that right (per Lee and Cooper JJ at 121). The operation of s 120A(2) and (3) meant that the potential introduction of a Statement of Principles would delay the making of a decision on the claim, and the introduction of a Statement of Principles would in a substantive sense, as opposed merely to a procedural sense, “affect” the right which accrued to the claimant upon lodgment of a claim (per Lee and Cooper JJ at 122-123).

34                  The Repatriation Medical Authority is obliged to give public notice of a proposed review of the contents of a Statement of Principles: s 196G(1). Such notice apparently obliges the Commission not to determine a claim until the investigation has been completed. Section 120A(2) refers to “an investigation in respect of a particular kind of injury, disease or death”. Those words parallel the words in s 196G(1)(c) about the content of the notice. It does not distinguish between an investigation where there is no Statement of Principles and one to review a Statement of Principles. In my view, as s 120A(2) refers to the notice of investigation, the fact that s 196E(1)(d) and (f) and s 196B(4) and (7) separately deal with the initial investigation towards a Statement of Principles and the review of a Statement of Principles is not of consequence.

35                  Section 120A(2) applies in terms to the Commission, but it does not expressly apply to the Board (or to the Tribunal). The Board’s review functions under s 139 of the Act are similar to those of the Tribunal under s 175 of the Act and s 43 of the Administrative Appeals Tribunal Act. In Gorton, Allsop J at 331 laid weight upon the Tribunal having to review the decision of the Commission or of the Board by reference to the Statement of Principles which “is in force”: s 120A(3). The same may be said of the Board’s role. But his Honour did not there suggest that the Tribunal was obliged to delay its decision if a Statement of Principles was being reviewed. I consider the same applies to the Board. The circumstance that the Commission is obliged to defer a decision on a claim pending the making or review of a Statement of Principles was remarked upon by Lee and Cooper JJ in Keeley at 123 in the following terms:

“However, that circumstance does not apply after a claim has been determined and the right that has accrued under the Act is a right to have the determination reviewed. The Act is silent about the effect upon such an accrued right of the revocation of a Statement and determination of another Statement under s 196B(8)(c). It is significant that there is no provision equivalent to s 120A(2) where the Authority is carrying out an investigation under s 196B(7) preparatory to deciding whether to revoke a Statement and determine another Statement under s 196B(8).”

Whilst I am not confident the latter part of those remarks applies to the Commission where the Repatriation Medical Authority has given notice under s 196G of a reconsideration of a Statement of Principles for reasons given in [34] above, the remarks generally confirm that the Board is not itself obliged to defer a decision reviewing a claim by operation of s 120A(2) of the Act.

36                  Once that step is taken, in my view it follows that persons such as Mr Thomas have a right of review by the Board and by the Tribunal by reference to the Statement of Principles in force at the time of the respective reviews. They also have an accrued right, if the application of the Statement of Principles in force at the time of the determination of the Board or of the Tribunal (at the times of their respective reviews) does not result in a favourable determination, to have the Board or the Tribunal (as the case may be) determine the claim by reference to the Statement of Principles in force at the time of the Commission’s decision. But I do not consider that they have an “accrued right” before the Tribunal to have the claim determined by reference to the Statement of Principles in force at the time of the Board’s decision where the then current Statement of Principles has replaced one in force at the time of the Commission’s decision, as distinct from and in addition to the accrued right recognised in Keeley and Gorton. My conclusion accords with the observations of Heerey J at 322 and of Allsop J at 333 and 335 in Gorton and of Lee and Cooper JJ in Keeley at 123 although their Honours were not required to, and did not, directly address that issue.

37                  Counsel for Mr Thomas submitted that “rights” based upon Statements of Principle previously in force accrue if they were in force during the “assessment period” as defined in s 19(9) of the Act. That is the period between the making of the claim and its determination. I do not think that point advances the contention. That is because the determination referred to is the determination of the Commission: see s 19. The review available under Part IX Div 3 by the Veterans’ Review Board is therefore not within the assessment period. Lee and Cooper JJ in Keeley at 123 make the distinction in the passage quoted in [35] above.

38                  I am not sure that the second ground of review argued by the Commission demonstrates an error of law on the part of the Tribunal as distinct from an error of fact on the part of the Tribunal. However, given my conclusion that the first ground of appeal is made out, that is largely a moot point. In my view it is clear that the Tribunal did make the error which the Commission asserts. Upon the evidence of Dr English, the pre-war daily animal fat consumption under the 1999 SoP was 84.7 gm, and the post war daily animal fat consumption was 90.6 gm. Applying the 1995 SoP as amended by the 1996 SoP, the respective figures are 66.6 gm and 79.4 gm. The Tribunal clearly has not compared like with like. It has taken for the purposes of its consideration the 66.6 gm measure based upon the definition of animal fat in the 1995 SoP as amended by the 1996 SoP, and the 90.6 gm based upon the different definition of animal fat in the 1999 SoP. That is not comparing like with like. I observe that cl 5(c) of the 1999 SoP is in fact in the same terms as cl 1(b) in the 1995 SoP as amended by the 1996 SoP. However, the different definitions of “animal fat” clearly produce different calculations.

39                  Counsel for Mr Thomas tentatively contended that the time from which the measure of any increase in animal fat consumption should be taken is not the period of war service of the claimant. I do not accept that. Clause 4 of the 1999 SoP provides that:

“Subject to cl 6, at least one of the factors set out in cl 5 must be related to any relevant service rendered by the person”.

I think it is clear, by reason of cl 4, that the Tribunal focused appropriately upon the change or increase in animal fat consumption between the pre-war and post war diets of Mr Thomas. It is only by reference to those periods of time that the increase in animal fat consumption could be determined as being related to his operational service. Moreover, it was his case as presented to the Tribunal that that was the appropriate inquiry.

40                  Counsel for Mr Thomas further contended that the Commission should not be entitled to present its argument that the Tribunal erred by not first applying the 1999 SoP because both parties proceeded before the Tribunal upon the basis that the 1995 SoP as amended by the 1996 SoP was the appropriate path. I do not accept that submission. I am satisfied that the Tribunal was made aware of the issue about whether the 1999 SoP should have been applied at the time of its decision. It appears that the decision of the Tribunal was delayed, apparently awaiting the outcome of the decisions in Keeley and then Gorton. I note that the submission of Mr Thomas had identified the 1995 SoP as amended by the 1996 SoP as the applicable SoP. Initially it appears that the Commission also accepted that the 1995 SoP as amended by the 1996 SoP was the appropriate one. The position then taken by the parties is, in my view, erroneous for the reasons I have given. However, a later written submission of the Commission to the Tribunal drew attention to the 1999 SoP and contended that the condition of Mr Thomas did not fit its template. In the light of the decision in Gorton, the law is clear. In my view it should have been applied by the Tribunal. Moreover, the Tribunal was also apparently aware of the issue. It noted at the commencement of its decision the decision in Gorton v Repatriation Commission [2001] FCA 286 but does not otherwise appear to have referred to that decision in the reasons. That is the decision of Stone J at first instance, upheld on appeal by the Full Court in Gorton.

41                  For the reasons given, in my judgment the appeal should be allowed. The decision of the Tribunal given on 2 May 2002 should be set aside, and the matter remitted to the Tribunal for rehearing according to law. The Commission seeks an order in its notice of appeal that each party bear its own costs of this application. As it has succeeded, so there should be no question of Mr Thomas securing an order for costs, I make no order as to the costs of the application.

Associate:

Dated: 29 November 2002