FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Cotton

[2006] FCA 1523

VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – eligible war service – hypertension – consumption of alcohol – Statement of Principles – whether Administrative Appeals Tribunal erred in failing to apply all the elements required by the relevant Statement of Principles in respect of hypertension – meaning of “cannot be decreased to less than 300 gms per week” – Veterans’ Entitlements Act 1986 (Cth) ss 7(1)(b), 9(1), 120, 196B

PRACTICE & PROCEDURE – appeals – notice of appeal – whether notice of appeal complies with requirements to state a question of law – decision of Administrative Appeals Tribunal to vary decision of Veterans’ Review Board – requirement to state questions of law with precision in appeal from Tribunal – Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)

ADMINISTRATIVE LAW – appeal – question of law – appeal on question of law – Appeal from Administrative Appeals Tribunal decisions limited to questions of law – Administrative Appeals Tribunal Act 1975 (Cth) s 44(1) 

WORDS & PHRASES – “cannot be decreased”

Held – no error of construction on part of Tribunal; question of law not properly raised in notice of appeal

Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)

Veterans’ Entitlements Act 1986 (Cth) ss 7(1)(b), 9(1)(b), 120(4), 120B(3), 196B

Federal Court Rules O 53 r 3(2)

Statement of Principles Instrument Number 36 of 2003, as amended by Number 4 of 2004 - Hypertension

29 Equities Ltd v Bank Leumi (UK) Ltd [1986] 1 WLR 1490 considered

Australian Securities and Investment Commission v DB Management Pty Limited (2000) 199 CLR 321 applied

Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 applied 

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 cited

Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 cited

Comcare v Etheridge (2006) 149 FCR 522 applied

HBF Health Funds Inc v Minister for Health and Ageing (2006) 149 FCR 291 followed

In Re Judiciary and Navigation Acts (1921) 29 CLR 257cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied

Public Transport Commission (NSW) v J Murray-Moore (NSW) Pty Limited (1975) 132 CLR 336 applied

Re Campbell and Repatriation Commission [2006] AATA 455 referred to

Re Collier and Repatriation Commission [2004] AATA 111 referred to

Re Jensen and Repatriation Commission [2005] AATA 474 referred to

Re Schubinski and Repatriation Commission [2005] AATA 1273 not followed

Repatriation Commission v Gosewinckel (1999) 59 ALD 690 considered

Repatriation Commission v Hill (2002) 69 ALD 581 cited

Rhymney Iron Company v Gelligaer District Council [1917] 1 KB 589 considered

Roncevich v Repatriation Commission (2005) 222 CLR 115 cited

The Newbattle (1885) 10 PD 33 considered

REPATRIATION COMMISSION v GEOFFREY COTTON

NSD 1587 OF 2006

RARES J

16 NOVEMBER 2006

SYDNEY

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY REAR ADMIRAL HORTON AO, MEMBER, AND DR M E C THORPE, MEMBER

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs.

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

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY REAR ADMIRAL HORTON AO, MEMBER, AND DR M E C THORPE, MEMBER

REASONS FOR JUDGMENT

1                     Mr Cotton joined the Royal Australian Air Force in May 1943.  He had no operational service but remained with the RAAF until April 1946 and was entitled to have his service treated as eligible war service (s 7(1)(b) of the Veterans’ Entitlements Act 1986 (Cth).  While in the RAAF Mr Cotton commenced drinking alcohol for the first time.  He has continued to do so to the present.  Mr Cotton claimed that he suffered a war caused disease which arose out of or was attributable to his eligible war service (see s 9(1)(b)). That disease was Mr Cotton’s ischaemic heart disease.  The Act required that the disease arose out of or was attributable to his eligible war service (s 9(1)(b)).  Mr Cotton claimed that there was a connection between this disease and his eligible war service, because he claimed he suffered from hypertension associated with his alcohol ingestion.

2                     The Repatriation Medical Authority’s Statement of Principles concerning hypertension specified the factors that must exist before it could be said, on the balance of probabilities, that hypertension was connected with the circumstances of Mr Cotton’s service. These included the following, Delphic, factor:

‘5(b)    Consuming an average of at least 300 grams per week of alcohol for a continuous period of at least six months immediately before the clinical onset of hypertension, which cannot be decreased to less than an average of 300 grams per week of alcohol.’

3                     The Administrative Appeals Tribunal determined that the drinking habits of Mr Cotton, both during his service and thereafter, were such as to meet the conditions prescribed in that Statement of Principles and made a finding accordingly.

4                     The Repatriation Commission appeals to this Court under s 44(1) of the Administrative Appeals Act 1975 (Cth)(‘AAT Act’) on what it asserts is a question of law in the following terms:

‘Whether the Tribunal erred in failing to apply all of the elements required by the relevant Statement of Principles, namely factor 5(b) … in respect of Hypertension.’

5                     Mr Cotton argued that the purported question of law, the subject of the appeal, was not in truth a question of law properly framed in accordance with the requirements of s 44(1) of the AAT Act.  I will deal with that issue after first considering the proper construction of factor 5(b).  I do so because the question of construction cries out for resolution.

TRIBUNAL’S FINDINGS

6                     The Tribunal found that there was no dispute between the parties that Mr Cotton had been diagnosed with hypertension and ischaemic heart disease.  It also found that the onset of the hypertension occurred in about 1973-74 when Mr Cotton’s treating doctor, Dr Beard, diagnosed the first appearance of the signs and symptoms of the disease.  The only factor which the Commission and Mr Cotton presented to the Tribunal for adjudication was whether Mr Cotton’s consumption of alcohol was causally connected to his war service from 1943-1946 and the onset of his hypertension in 1973-1974.  The Tribunal dealt with conflicting evidence on Mr Cotton’s alcohol consumption, including conflicts within Mr Cotton’s own account. Critically it found:

‘[38]   Taking account of the above concerns, we are of the opinion that the drinking habits of Mr Cotton, both during service and thereafter were such as to meet the conditions prescribed in the Statement of Principles for hypertension.  It is clear from his evidence that during his employment with Goldsborough Mort and then Winchcombe Carson until 1980, he drank on most days.  When in Sydney, he drank beer in a hotel after work, and again on reaching Manly, and on arriving home, he had a further drink.  That occurred each week day, with less at the weekends.  Extrapolating from his evidence, a reasonable consumption in a week might well equate to 30 glasses of beer or 300 grams.  When travelling, the frequency of drinking might be more erratic, but on his evidence, the outcome is similar.  Suffice that we find that the conditions of factor 5(b) of instrument number 4 of 2004 are met.’

7                     The Commission complains that this finding failed to deal with the final clause of factor 5(b), namely: 

‘…which cannot be decreased to less than an average of 300 grams per week of alcohol’.

8                     That clause was not referred to before the Tribunal in the Commission’s statement of facts and contentions or in the course of submissions or address.  No direct question was asked of any witness on the point.  In final address to the Tribunal, the advocate for the Commission argued that factor 5(b) had not been made out on two grounds only:  first, she argued that Mr Cotton’s evidence as to the quantity of alcohol he drank should not be accepted, and, secondly, that if Mr Cotton were accepted, the Tribunal should not find a connection to his service (T 50, 27/6/06).  Each basis was rejected by the Tribunal.  I infer that the case was presented to the Tribunal as one in which, if Mr Cotton were accepted on the issue of the quantity of his consumption he was not in a position, voluntarily, to reduce it.  The Commission now complains that the Tribunal did not deal with a point which it never raised at the hearing.  It is not an attractive starting point.  Moreover, the Commission seeks an order that Mr Cotton pay its costs of this appeal.

EARLIER ATTEMPTS AT THE CONSTRUCTION OF FACTOR 5(b)

9                     The Commission drew attention to a number of earlier decisions of the Tribunal which sought to grapple with the nebulous way in which factor 5(b) is expressed.  As is obvious from a reading of it, the factor requires the consumption of a minimum average amount of alcohol for a continuous period of at least six months immediately before the clinical onset of hypertension.  There is no issue that the Tribunal was entitled to find, as it did, that Mr Cotton had satisfied that part of factor 5(b).  But the question then arises as to what do the words which follow in the Delphic clause at the end of factor 5(b) mean?

10                  A member of the Tribunal (Mr E Rice) said in Re Jensen and Repatriation Commission [2005] AATA 474 at [24] that it was impossible to make any sense of the final clause in an analogous form (which referred to 200 rather than 300 grams per week and did not include the criterion of a period of six months).  He continued that the factor:

‘… seems to require a consumption of an average of at least 200 grams of alcohol per week at the time of the clinical onset of hypertension, and an inability to decrease that consumption to less than an average of 200 grams per week, also at the time of the clinical onset of hypertension.’

11                  Mr Rice referred ([2005] AATA 474 at [24]) to an earlier decision of the Tribunal in Re Collier and Repatriation Commission [2004] AATA 111 at [12] which had said that factor 5(b) was confusing and ‘just does not make sense’.  And, in Re Campbell and Repatriation Commission [2006] AATA 455 at [71] a senior member said that the language was unclear and devoid of meaning.  He disagreed with the decision in Re Schubinski and Repatriation Commission [2005] AATA 1273 at [100], where a differently constituted Tribunal had said of the current factor 5(b) that the relevant words were capable of a sensible construction and that they:

 ‘… connote an element of an inability on the part of the person concerned to decrease his or her average consumption below the average stated.  In other words, we hold subclause (b) to mean that an applicant must establish that for a continuous period of at least six months immediately before the clinical onset of hypertension the applicant was not only consuming an average of 300 grams per week of alcohol but was unable to consume less than that average during that period.  In other words … the relevant words in effect refer to a compulsion to drink, not merely to the fact of drinking.’

12                  Before me the Commission asserted that it did not need to propound a final view as to the proper construction of factor 5(b) because, whatever it means, each part of it was not considered or applied by the Tribunal in the present decision.  I was informed from the Bar table that the words of factor 5(b) had not been the subject of any clarification despite the difficulty of construction identified two years ago in Re Collier and Repatriation Commission [2004] AATA 111.

13                  In light of the substantive impact which statements of principles have in the assessment of claims made by service and former service personnel, it is unfortunate that this provision, which has been rightly criticised as badly worded, has been left unamended.  It is obviously a very difficult piece of wording to construe.

PRINCIPLES OF CONSTRUCTION

14                  In Australian Securities and Investment Commission v DB Management Pty Limited (2000) 199 CLR 321 at 338 [34]-[35] Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ said:

‘[34]   In Project Blue Sky Inc v Australian Broadcasting Authority ((1998) 194 CLR 355 at 384, per McHugh, Gummow, Kirby and Hayne JJ), after pointing out that the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have, the majority said:

“Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision.  But not always.  The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

[35]    It may be added that, if a party contends that a provision, by reason of such considerations, should not be given its literal meaning, then such a contention may lack force unless accompanied by some plausible formulation of an alternative legal meaning.’

15                  Earlier, in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69] McHugh, Gummow, Kirby and Hayne JJ said that the primary object of statutory construction was to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute.  They approved what Dixon CJ had said in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397, namely that:

‘… the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.’

16                  And, in Public Transport Commission (NSW) v J Murray-Moore (NSW) Pty Limited (1975) 132 CLR 336 at 350 Gibbs J said that where two meanings were open ‘…it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust’.  Inconvenience or improbability of result may assist the Court in preferring, to the literal meaning, an alternative construction which is reasonably open and more closely conforms to the legislative intent:  CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ.  They noted that both the common law and s 15AB of the Acts Interpretation Act 1901 (Cth) enabled the Court to have regard to reports of law reform bodies to ascertain the mischief to which a provision was directed.  There is no relevant explanatory material which might throw light on the obscurity of factor 5(b).

17                  The Commission argued that construction placed on factor 5(b) by the Tribunal in Re Schubinski and Repatriation Commission [2005] AATA 1273 at [100] was correct.  It argued that, in effect, the last clause of factor 5(b) involves there being no choice for the applicant but to consume an average of not less than 300 grams per week of alcohol.  What was meant by ‘no choice’ was left unexplained.

18                  I am of opinion that factor 5(b) should not be construed in this way.  The Repatriation Medical Authority had power to determine factor 5(b) pursuant to s 196B(3) of the Act where it was of the view that on sound medical scientific evidence available it was more probable than not that a particular kind of injury, disease or death can be related to eligible war service rendered by veterans.  The authority was then obliged to determine a statement of principles in respect of that kind of injury, disease or death.  It had to set out the factors that must exist and which of those factors must be related to service rendered by a person before it could be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.  Thus, there already had to be in existence sound medical scientific evidence, as defined in s 5AB(2) of the Act, that it was more probable than not that consuming an average of at least 300 grams per week of alcohol for a continuous period of at least six months immediately before the clinical onset of hypertension which can be related to the eligible war service rendered by a veteran.

19                  The medical condition of hypertension is defined by factor 2(b) and involves permanently elevated or ‘high’ blood pressure.  Factor 5(b) requires the existence of the consumption of a minimum average amount of alcohol for not less than the six month period immediately before the clinical onset of the disease.  Next, 5(b) qualifies the foregoing requirements by adding a further one using the present tense (‘which cannot be decreased’) in respect of past acts.  The objective facts of a person’s consumption of alcohol over a period of past history are identified as factors to be established by the first clause in factor 5(b).  The other factors set out in factor 5 of the statement of principles all appear to identify factual events (e.g. suffering from chronic renal failure at the time of the clinical onset of hypertension (factor 5(e)), being obese at the time of the clinical onset of hypertension (factor 5(a)), or suffering from sleep apnoea at the time of the clinical onset of hypertension (factor 5(a))).

20                  The word ‘cannot’ in factor 5(b) is used in the present tense.  The Oxford English Dictionary defines ‘can’ as meaning:

‘To be able; to have the power, ability or capacity. (Said of physical as well as mental, and of natural as well as acquired ability.)’

21                  In its natural and ordinary meaning in factor 5(b) the word ‘cannot’ means that it is not possible to decrease the quantity.  In other contexts the word ‘cannot’ has a natural and ordinary meaning of excluding the possibility of something occurring.  So, in 29 Equities Ltd v Bank Leumi (UK) Ltd [1986] 1 WLR 1490 at 1496G-H Dillon LJ said that it was a simple question of fact to be decided in the light of common sense whether at the date on which a vendor purported to rescind a contract of sale a licence ‘cannot be obtained’.  And, in The Newbattle (1885) 10 PD 33 the English Court of Appeal held that a statutory provision referring to a ship which ‘cannot be arrested’ connoted that it was impossible to arrest the ship.  In Rhymney Iron Company v Gelligaer District Council [1917] 1 KB 589 at 594, Viscount Reading CJ had to construe a provision empowering a local authority to service a notice on an owner or occupier where the person responsible for a nuisance ‘cannot be found’.  He said that having regard to the public health purpose in the legislation, the authority had only to be unable to ascertain, in its then state of knowledge, who was responsible for the nuisance.

22                  Each of these cases, of course, is on a different phrase or statutory provision and shows that the word ‘cannot’ must be construed in accordance with the principles of statutory construction to which I have referred. 

23                  Factor 5(b) does not refer to concepts of alcoholism, alcohol abuse or alcohol dependency.  Each of those concepts may involve the need to establish a state of mind on the part of an applicant in which the consumption of alcohol is or is not involuntary, or can or cannot be controlled.

24                  A strict literal reading of factor 5(b) suggests that even where a veteran is suffering from a form of addiction to alcohol but could, if he or she chose, reduce the intake (e.g. by being admitted to an institution at which alcohol dependency could be treated and at which no alcohol was permitted) but did not do so would not be capable of satisfying the conditions.  Any possibility of a person consuming less than the average 300 grams of alcohol per week would negate a claim which had been medically established by the actual consumption of that quantity.  In effect, a person who was caused by his or her service to the nation to embark on a drinking habit of consuming more than 300 grams of alcohol per week, and who became sick with hypertension, would not be able to receive a benefit because it was logically possible for him or her not to have drunk as much.  Such a construction is, in the absence of express words, one which produces consequences which are irrational and unjust (Public Transport Commission (NSW) v J Murray-Moore (NSW) Pty Limited (1975) 132 CLR 336 at 350 per Gibbs J.

25                  There is no textual indication in factor 5(b) as to the degree of possibility involved in the concept of ‘cannot be decreased’ on the construction posited by the Commission.  Many veterans would miss out on having their claims considered if a standard were applied of such a draconian kind in its absolute terms.  The tribunal noted, drawing on the reasoning on the Full Court of this Court in Repatriation Commission v Tuite (1993) 39 FCR 540 at 541 and 545, Mr Cotton’s introduction to alcohol occurred during his service from his being involved with other recruits and trainees as well as others in a service environment.  The Tribunal was particularly well constituted to make such a finding, having as its members Rear Admiral Horton AO and Dr Thorpe.  It would be perfectly possible to frame a factor under s 196B(3)(c) by reference to precise medical conditions.  Indeed, a previous statement of the principles concerning hypertension (instrument No 32 of 2001) did so.

26                  However, what the present factor 5(b) says that it is a condition that a minimum amount of alcohol be consumed and that it cannot be decreased.  Even if one were to construe the word ‘cannot’ as meaning that it was not possible at the time of the consumption to decrease the amount consumed, the inclusion within the same definition of the two concepts leads to a real risk of circulatory.  It must always be possible to reduce one’s consumption of alcohol.  It would be odd for the factor to prescribe a level of consumption and then to deny it having an effective operation by using a criterion, if it could be read as the Commission suggests, which would always render reference to the factor to be pointless.

27                   Here, the purpose of a statement of principles, and in particular the obligation of the authority to set out ‘the factors that must exist’ (s 196B(3)(c)), show that the construction put forward by the Commission is of such an indefinite character that it would not fulfil the requirements of the statute.  The authority eschewed the identification of a particular medical condition or other precise state of facts in using the expression ‘which cannot be decreased’ in factor 5(b).  That removed any objective standard by reference to which an hypothesis could be understood if the last clause is to be read as relevant to the applicant, his or her conduct or state of mind.  If a literal reading is appropriate it clearly requires that there be no logical possibility of decreasing alcohol consumption below 300 grams per week.  Then no-one could satisfy it.  Nor is the standard suggested in Re Schubinski and Repatriation Commission [2005] AATA 1273 at [100] satisfactory.  The Tribunal’s view in that decision that the words referred to a ‘compulsion to drink’, does not arise out of the natural and ordinary meaning of the concluding clause of factor 5(b).  Moreover, what a ‘compulsion to drink’ is has been left undefined.  It seems to go beyond a recognised illness such as alcoholism.  Rather, it connotes incurable alcoholism.  If there were a possibility that the alcoholism could have been cured within the period of six months or could have been so affected that the consumption could have been reduced below the threshold in factor 5(b) then the claimant would fail.  Moreover, even an incurable alcoholic can be kept in an institution in which that person is not allowed to drink.  That is a logical possibility.  Any person could be kept in such a condition and therefore every person must fail the test if it is to be construed in a literal way.

28                  I am of opinion that the proper construction of factor 5(b) recognises that the present tense is used in the verb ‘cannot’ to emphasize to the decision-maker that the consumption of an average of at least 300 grams per week of alcohol for the continuous period of at least six months immediately preceding the clinical onset of hypertension is not to be ignored under any circumstances.  Thus, even where the medical evidence might demonstrate that the veteran consumed less than 300 grams per week of alcohol immediately before the clinical onset of the hypertension and that that consumption was, as matter of fact, clinically causative of the condition, the concluding clause excludes the exercise of that clinical conclusion from consideration by the decision-maker.

APPLICATION OF FACTOR 5(b)

29                  The way in which factor 5(b) is to be applied is provided in ss 120(4) and 120B(3).  First, in making a determination of the present kind, the decision-maker is required to ‘decide the matter to its reasonable satisfaction’ (s 120(4)).  In applying that criterion, the decision-maker is, by force of s 120B(3), to be reasonably satisfied that a disease contracted by a person was war caused or defence caused only if the material before the decision-maker raises a connection between the disease of a person and some particular service rendered by the person and there is in force a statement of principles determined under s 196B(3) which upholds the contention that that disease of the person is, on the balance of probabilities, connected with that service.

30                  The task of the Tribunal, therefore, was to determine to its reasonable satisfaction that factor 5(b) was made out.  The effect of s 120B(3)(b) is that once the Tribunal is reasonably satisfied that factor 5(b) exists, it can uphold the contention that the disease is connected with the service.  In Repatriation Commission v Hill (2002) 69 ALD 581 at 596 [55] Black CJ, Drummond and Kenny JJ said that an hypothesis connecting a disease with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the relevant statement of principles.

31                  Thus, in a case such as the present, the Commission argues that every element in factor 5(b) had to be found by the Commission separately.  Here, s 120(4) requires the decision-maker to decide the matter according to its reasonable satisfaction.  In doing so, it is important to note that s 120(6) provides that no party (whether applicant or Commission) has an onus of proving any matter that is or might be relevant to the determination of a claim or application.  The Tribunal not only found in terms that all of the conditions in factor 5(b) in Mr Cotton’s case were met to its satisfaction, but it also said that Mr Cotton’s conduct while in the RAAF was ‘the causal influence that led him to making a decision to start drinking (and indeed smoking) and to continue to do so’.

32                  In Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at 704 [64] Weinberg J pointed out in a case under s 120A that where a statement of principles requires the presence of a number of distinct symptoms, unless each of those symptoms is present, the case will not fit within the requirements of legislation.  However, the relevant operation of s 120B and its interaction with s 196B(3) is not distinguishable for present purposes (although the degree of satisfaction which the decision-maker must have is, of course, distinct) (cf:  Roncevich v Repatriation Commission (2005) 222 CLR 115 at 120 [11], 125-126 [23]-[28].

33                  In Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at 704-705 [67] Weinberg J noted that the provisions in Pt XIA of the Act ‘… were introduced in order to take the determination of “purely medical … issues” out of the hands of bodies such as the tribunal:  Explanatory Memorandum to Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 at p 3’.  The construction posited by the Commission in this case of factor 5(b) does not raise a ‘purely medical issue’.  Factor 5(b) works as a ‘purely medical issue’ if one reads it as setting out the objective fact that 300 or more grams of alcohol, and nothing less, on average per week are consumed for a continuous period for at least six months before the clinical onset of hypertension.  That is an objective fact that can be ascertained.  The concluding clause in the factor emphasizes that it will not be satisfied if less than 300 grams per week are used in the calculation.  That construction makes sense of the provision where a Tribunal might be inclined to think that near enough to 300 grams per week as average amount over the continuous period was good enough.

34                  I am of opinion that when the Tribunal referred to his drinking constituting a habit and being addictive it was referring to the submission made by counsel for Mr Cotton (at [2006] AATA 648 at [27]).  That submission had relied on the decision of the Full Court in Repatriation Commission v Tuite (1993) 39 FCR 540 at 541, 545 (and see too Roncevich v Repatriation Commission (2005) 222 CLR 115 at 125 [22]-[25]) to suggest that his service was a cause in making alcohol part of the fabric of Mr Cotton’s social life and that the setting in which he found himself helped to constitute his drinking into a habit.  There was no requirement for Mr Cotton to cease drinking.  While neither party has an onus (s 120(6)) the Tribunal had to deal with the material before it with the assistance which the parties offered it in deciding the question.  It had the benefit of and made careful factual findings about the evidence.  When referring to Repatriation Commission v Tuite (1993) 39 FCR 540, the Tribunal quoted from what Davies J (at 541) and Burchett and Einfeld JJ had said (at 545) that the social pressures and incidences of camp life were plainly capable of having a causal influence upon a decision to take up smoking and upon its continuance.

THE COMMISSION’S OTHER ARGUMENTS

35                  The Commission argued that I should make factual findings pursuant to s 44(7) of the AAT Act as to Mr Cotton’s ability to decrease his alcohol consumption to less than an average of 300 grams per week.  Having regard to the fact that the Tribunal made credibility based findings which depended upon its assessment of, among other things, Mr Cotton and its acceptance and rejection of parts of his evidence, it would not be appropriate for me to embark upon such an enquiry even were I minded to accept the Commission’s construction of factor 5(b) (see too Roncevich v Repatriation Commission (2005) 222 CLR 115 at 126 [28]).

36                  Next, the Commission initially sought an order that, were the Tribunal’s decision to be set aside, the decision of the Veterans Review Board which the Tribunal reviewed, be restored.  I indicated during the course of argument that the effect of setting aside the Tribunal’s decision would be to leave as the then operative decision whatever was the last administrative act preceding the Tribunal’s decision.  The Commission withdrew the application for an order dealing with this matter.

DOES THE APPEAL RAISE A QUESTION OF LAW WITHIN THE MEANING OF s 44(1) OF THE AAT ACT?

37                  In  Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 397 Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ said that all was required for a reviewable question of law to be raised was for a phrase to be identified as being used in a sense different from that which it has in ordinary speech.  There is no doubt that the proper construction of factor 5(b) is capable of being a question of law.  But that is not the question which the Commission raised in its amended notice of appeal.  Of course, nor is a broad enquiry as to the construction or operation of factor 5(b) a question of law within the meaning of s 44(1) of the AAT Act, because it would involve the Court offering an advisory opinion which is beyond the judicial power of the Commonwealth:  see In Re Judiciary and Navigation Acts (1921) 29 CLR 257;  Comcare v Etheridge (2006) 149 FCR 522 at 528 [19] per Branson J, Spender and Nicholson JJ agreeing.

38                  Because factor 5(b) does not use words according to their common understanding, the question whether facts fully found fall within its provisions, properly construed, is a question of law:  Hope v Bathurst City Council (1980) 144 CLR 1 at 7 per Mason J.  In Comcare v Etheridge (2006) 149 FCR 522 at 530 [29] Branson J said that a question which invited the Court to examine the evidence and other material before the Tribunal was not a question of law within the meaning of s 44(1) of the AAT Act but rather it was, at best, a mixed question of fact and law.  She said that looked at critically, such a question was open to be understood as an invitation to the Court to conduct a rehearing with respect to important aspects of controversy that came before the Tribunal for determination.  This was not open to be accepted under s 44(1) of the AAT Act.  And in HBF Health Funds Inc v Minister for Health and Ageing  (2006) 149 FCR 291 at 293 [6] Spender, Branson and Siopis JJ said that it was not possible to extend the subject matter of the appeal under s 44(1) of the AAT Act beyond the specified questions of law by itemising, under the heading ‘Grounds’ in the notice of appeal, a series of alleged errors in the reasons for the decision of the Tribunal, some being errors of law, some being errors of fact, and some being errors of mixed law and fact.

39                  The need for precision in the statement of the questions of law in a notice of appeal under s 44(1) of the AAT Act is explained by Branson J in Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at 301 [46]-[47], with whom Jacobson and Bennett JJ agreed on this point (at 133 FCR at 131 [105]-[108]).  She observed that in that case ‘… the questions stated in the notice of appeal have been impermissibly drawn in a way calculated to cause this Court to review the decision of the Tribunal rather than to answer stated questions of law’.  Earlier, in Birdseye v Australian Securities and Investments Commission (2003) 78 ALD 321, Branson and Stone JJ considered how a question of law ought be stated in a notice of appeal, in the context of O 53 r 3(2).  They said that:

‘… in the specification of the grounds relied upon in support of the order sought … one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on appeal.’   ((2003) 76 ALD at 325 [18])

40                  Here, the question of law asks the Court to review what the Tribunal did and then to determine whether it erred in failing to apply one or more elements which it was required to apply in factor 5(b).  That is not a question of law within the meaning of the authorities on an appeal under s 44(1) of the AAT Act.  The Commission argued that because the Tribunal did not make a finding about the last clause of factor 5(b), the way in which the question of law was framed complied with s 44(1).  In my opinion it does not.  Before one reaches that step, one would need to know what, properly construed, factor 5(b) involved and a subsequent question of law would be whether it was properly applied to the facts as found by the Tribunal.

41                  I am of opinion that the question as raised in the notice of appeal does not raise a question of law within the meaning of the authorities.  In any event, if I am wrong in my conclusion as to the question of law, I am of opinion that the Tribunal made no error of law in applying factor 5(b).

42                  In Re Minister for Immigration and Multicultural and Indigenous Affairs Ex parte Durairajasingaham (2000) 74 ALJR 405 at 417 [67], McHugh J said that an obligation to give reasons, such as is found in s 43(2B) of the AAT, Act does not oblige the Tribunal to give a subset of reasons why it accepted or rejected individual pieces of evidence.  In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68], McHugh, Gummow and Hayne JJ said that it was sufficient if the decision-maker sets out its findings ‘…on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.’  In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 Brennan CJ, Toohey, McHugh and Gummow JJ said that a court should not scrutinize upon over zealous judicial review the adequacy of reasons for an administrative decision.  They said that a court should beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.

43                  Here, the Tribunal set out in its reasons factor 5(b).  It addressed factor 5(b) in terms and said that, having considered its concerns about Mr Cotton’s oral and written evidence and the other evidence, his drinking habit both during service and thereafter was such as to meet the conditions prescribed in factor 5(b) for hypertension.  That is a finding of fact.  The Tribunal reviewed all of the material going to Mr Cotton’s drinking of alcohol.  It found that over a course of years from 1946 to 1980, ‘he drank on most days’.  It described this in terms of it being his ‘habit’.  I am of opinion that the Tribunal was alive to its responsibility to make findings as to the matters required by factor 5(b) and that it did so in a way which reveals no error of law. 

44                  For these reasons I am of opinion that the appeal should be dismissed with costs.

Associate:

Dated:         16 November 2006