Federal Court of Australia

Boys v Repatriation Commission (Veterans’ Entitlements) [2022] FCA 257

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The parties file any written submission on the question of costs within 7 days.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    This is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) by the appellant (Mr Boys), who served in the Australian Army from June 1979 until June 1986, from a decision of the Administrative Appeals Tribunal (the tribunal), affirming a decision of the Veterans’ Review Board, which in turn affirmed a decision of the Repatriation Commission (the respondent) that Mr Boys’ cervical spondylosis was not related to his eligible defence service for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (the VE Act).

2    The tribunal also concluded that Mr Boys was not eligible for a pension at the special rate.

3    The respondent accepted that the tribunal’s reasons disclosed two fundamental errors, the nature of which I will turn to below.

4    The respondent also accepted that the tribunal’s reasons on the issue of whether Mr Boys’ condition of cervical spondylosis was defence-caused were inadequate.

5    The respondent also agreed that those errors of law would ordinarily justify setting aside the tribunal’s decision, but submitted that on the particular facts of this case, the tribunal’s decision was clearly correct on the material before it, and the court should decline to set it aside and dismiss the appeal, citing Hill v Repatriation Commission [2005] FCAFC 23; (2005) 218 ALR 251 at 267 [82] (a court may decline to set aside an administrative decision even where an error of law has been demonstrated if the decision was clearly correct on the material before the decision maker).

6    For the reasons that follow, the respondent’s contention that the appeal should be dismissed must be accepted.

Statutory provisions

7    Where a “member of the Forces” (as defined in s 68 of the VE Act) is incapacitated from a defence-caused injury, the Commonwealth is liable to pay a pension by way of compensation to the member in accordance with the VE Act. See s 70(1) of the VE Act.

8    Section 70(5) of the VE Act relevantly provided that an injury suffered by a member of the Forces shall be taken to be a defence-caused injury if, among other things, the injury “arose out of, or was attributable to, any defence service” of the member (s 70(5)(a)) or resulted from an accident that occurred while the member was travelling, during any defence service “but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty” (s 70(5)(b)).

9    Section 120 of the VE Act relevantly provided:

120 Standard of proof

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

Note:    This subsection is affected by section 120A.

(2)    Where a claim under Part IV:

(a)    in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or

(b)    in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member; or

(c)    in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to British nuclear test defence service rendered by the member;

the Commission shall determine that the injury was a defence‑caused injury, that the disease was a defence‑caused disease or that the death of the member was defence‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note 1:    For member of a Peacekeeping Force, peacekeeping service, member of the Forces, hazardous service and British nuclear test defence service see subsection 5Q(1A).

Note 2:    This subsection is affected by section 120A.

(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.

Note:    This subsection is affected by section 120A.

(4)    Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

Note:    This subsection is affected by section 120B.

(5)    Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:

(a)    an injury suffered by a person is a war‑caused injury or a defence‑caused injury;

(b)    a disease contracted by a person is a war‑caused disease or a defence‑caused disease;

(c)    the death of a person is war‑caused or defence‑caused; or

(d)    a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.

(6)    Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

(a)    a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

(b)    the Commonwealth, the Department or any other person in relation to such a claim or application;

any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.

(7)    In this section:

hazardous service means service in the Defence Force, before the MRCA commencement date, that is of a kind determined in writing by the Minister administering section 1 of the Defence Act 1903 to be hazardous service for the purposes of this section.

10    It was common ground that neither sub-ss 120(1) or (2) applied because Mr Boys had not undertaken “operational service” or the types of service set out in s 120(2), and accordingly the relevant standard was that of “reasonable satisfaction” under s 120(4). Section 120B(3) of the VE Act prescribed how the decision maker was to apply the “reasonable satisfaction” standard, including by reference to any “Statement of Principles” in force, as follows:

In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:

(a)    the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and

(b)    there is in force:

(i)    a Statement of Principles determined under subsection 196B(3) or (12); or

(ii)    a determination of the Commission under subsection 180A(3);

that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.

11    In November 2005, and pursuant to sub-ss 196B(3) and (8) of the VE Act, the Repatriation Medical Authority determined Statement of Principles No 34 (SoP No 34) concerning cervical spondylosis.

12    SoP No 34 relevantly provided:

Kind of injury, disease or death

3.(a)    This Statement of Principles is about cervical spondylosis and death from cervical spondylosis.

(b)    For the purposes of this Statement of Principles, “cervical spondylosis” means degenerative changes affecting the cervical vertebrae or intervertebral discs, causing local pain and stiffness or symptoms and signs of cervical cord or cervical nerve root compression, but excludes diffuse idiopathic skeletal hyperostosis.

(c)    …

(d)    In the application of this Statement of Principles, the definition of “cervical spondylosis” is that given at paragraph 3(b) above.

…

Factors that must be related to service

5.    Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.

Factors

6.    The factor that must exist before it can be said that, on the balance of probabilities, cervical spondylosis or death from cervical spondylosis is connected with the circumstances of a person’s relevant service is:

…

(e)    having a depositional joint disease in the cervical spine before the clinical onset of cervical spondylosis; or

(f)    having a trauma to the cervical spine within the twenty-five years before the clinical onset of cervical spondylosis; …

13    On 20 June 2014, the Authority revoked SoP No 34, and determined in their place Statement of Principles No 67 (SoP No 67), to take effect from 2 July 2014.

14    SoP No 67 relevantly provided:

Kind of injury, disease or death

3.(a)    This Statement of Principles is about cervical spondylosis and death from cervical spondylosis.

(b)    For the purposes of this Statement of Principles, “cervical spondylosis” means a degenerative joint disorder affecting the cervical vertebrae or intervertebral discs with:

(i)    clinical manifestations of local pain and stiffness, or symptoms and signs of cervical cord or cervical nerve root compression; and

(ii)    imaging evidence of degenerative change, including disc space narrowing or osteophytes.

Other commonly associated features include facet joint arthritis, bone hypertrophy and spinal stenosis. This definition excludes diffuse idiopathic skeletal hyperostosis and bulging of an intervertebral disc in the absence of other signs of disc degeneration. Cervical spondylosis includes spondylosis at the cervicothoracic junction.

(c)    …

(d)    In the application of this Statement of Principles, the definition of “cervical spondylosis” is that given at paragraph 3(b) above.

…

Factors that must be related to service

5.    Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.

Factors

6.    The factor that must exist before it can be said that, on the balance of probabilities, cervical spondylosis or death from cervical spondylosis is connected with the circumstances of a person’s relevant service is:

…

(e)    having a depositional joint disease in the cervical spine before the clinical onset of cervical spondylosis; or

(f)    having trauma to the cervical spine at least one year before the clinical onset of cervical spondylosis, and where the trauma to the cervical spine occurred within the 25 years before the clinical onset of cervical spondylosis; …

15    Section 196B(14) of the VE Act identified various circumstances in which a factor causing or contributing to an injury, disease or death is related to service rendered by the person. Relevantly, s 196B(14) provided that a factor will be related to service rendered by a person if “it arose out of, or was attributable to, that service” (s 196B(14)(b)) or it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty (s 196B(14)(c)).

The tribunal’s decision

16    There was no dispute before the tribunal that the appellant’s army service constituted eligible defence service for the purpose of the VE Act. It was also common ground, and the tribunal accepted, that Mr Boys was involved in three motor accidents, in 1981, 1982 and 1983 respectively, when he was returning to army camp (Puckapunyal), each of which affected his neck.

17    There was also no dispute that he suffered from cervical spondylosis.

18    Mr Boys first sought to establish that his cervical spondylosis was related to his service and that he was eligible for an increase in the rate of payment of his pension (which was being paid at 90% of the “general rate”) by an application to the Repatriation Commission lodged 14 May 2014 – that is to say, approximately six weeks before the revocation of SoP No 34.

19    On 7 May 2015, a delegate of the Commission decided that Mr Boys’ cervical spondylosis was not related to service, and decided that he was eligible for an increase in the payment of his pension to 100% of the general rate. The VE Act also provided for the assessment and payment of disability pensions at a “special rate”, which was higher than the general rate. The Commission found that Mr Boys was not eligible for pension at the special rate.

20    By an application dated 26 May 2015, Mr Boys applied to the Veterans’ Review Board for a review of the Commission’s decision. On 8 November 2017, the Board informed Mr Boys that it had affirmed the Commission’s decision.

21    Several weeks later, Mr Boys applied to the tribunal for a review of the Board’s decision. The tribunal heard the application in August 2019, and, after receiving further submissions in May 2020, affirmed the Board’s decision in July 2020. It is that decision that is the subject of this appeal.

22    The critical issue before the tribunal was whether Mr Boys’ cervical spondylosis was related to his service. Resolution of that issue turned on whether factor 6(f) of SoP No 67 existed.

23    For reasons about which one can only speculate, the tribunal proceeded on the basis that Statement of Principles No 66 of 2014 applied. That was the Statement of Principles applicable to the condition of cervical spondylosis where a veteran had undertaken “operational service” (which, as noted above, Mr Boys had not). It was materially different to SoP No 67 and had not been referred to by either party during their submissions to the tribunal.

24    By reference to the wrong Statement of Principles, the tribunal reasoned as follows (footnotes omitted):

27.    The Respondent submits that there was not a sufficient connection between the motor vehicle accidents identified as being causative of the cervical spondylosis condition and the Applicant’s eligible defence service.

28.    Both the Applicant and the Respondent have referred to a Statement of Principles determined under s 196B(2) of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”): Statement of Principles concerning cervical spondylosis No. 66 of 2014 (“the Statement of Principles”).

29.    Paragraph 3 of the Statement of Principles relevantly states:

“(b)    For the purposes of this Statement of Principles, “cervical spondylosis” means a degenerative joint disorder affecting the cervical vertebrae or intervertebral discs with:

(i)    clinical manifestations of local pain and stiffness, or symptoms and signs of cervical cord or cervical nerve root compression; and

(ii)    imaging evidence of degenerative change, including disc space narrowing or osteophytes.

Other commonly associated features include facet joint arthritis, bone hypotrophy and spinal stenosis. This definition excludes diffuse idiopathic skeletal hyperostosis and bulging of an intervertebral disc in the absence of other signs of disc degeneration. Cervical spondylosis includes spondylosis at the lumbrosacral junction. …

(d)    In the application of this Statement of Principles, the definition of “cervical spondylosis” is that given at paragraph 3(b) above.”

30.    The Respondent submits therefore that the Statement of Principles for cervical spondylosis requires the presence of both manifestations of pain and symptomology consistent with such a diagnosis and radiological imaging confirming such a diagnosis. The Respondent submits that the date of clinical onset therefore ought to be 13 June 2014, given the radiology confirming cervical spondylosis on that date. The Applicant stated that there was an X-ray examination on 13 June 2014, further to sub-paragraph 3(b)(ii). The Applicant submitted that 13 June 2014 is the date at which the diagnosis is “confirmed”, submitting that that would be the ‘norm’ as to a condition described as degenerative in nature. For the purposes of the Statement of Principles there is not “cervical spondylosis” until 13 June 2014, in that there is not until that time, as stated by the Applicant, imaging evidence of degenerative change, including disc space narrowing or osteophytes, as required by sub-paragraph 3(b)(ii).

31.    Paragraph 5 of the Statement of Principles states that, subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person. The Applicant states that factor 6(f) in the Statement of Principles is applicable:

“6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cervical spondylosis … with the circumstances of a person’s relevant service is: …

(f) having a dispositional [sic] joint disease in the cervical spine before the clinical onset of cervical spondylosis … ”.

32.    It is found, having regard to the evidence of Professor Brazenor, as referred to above, as a minimum, that the Applicant did have a dispositional [sic] joint disease in the cervical spine before the clinical onset of cervical spondylosis, as stated in factor 6(f) of the Statement of Principles. The Statement of Principles does uphold the contention of the Applicant that the cervical spondylosis is, on the balance of probabilities, connected with the Applicant’s service.

33.    As to whether it can be said on the balance of probabilities that the cervical spondylosis is connected with the circumstances of the Applicant’s relevant service, there is also to be ‘reasonable satisfaction’ that an injury suffered by a person or a disease contracted by a person was defence-caused only if, in addition to the Statement of Principles, the material raises a connection between the injury, disease or death of the person and some particular service rendered by the person: s 120B of the Act.

34.    As stated in Re Repatriation Commission v Norman Edwin Tuite [1993] FCA 39; (1993) 39 FCR 540; (1993) 29 ALD 609 (18 February 1993) at [6] and [8] per Davies J:

“6. … if an injury or disease is claimed to have arisen out of or be attributable to a service[perso]n’s period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred. Denning J has said that the service ‘must be a cause as distinct from being part of the circumstances in or on which the cause operates’. See Marshall v Minister of Pensions (1948) 1 KB 106 at 110; W. v Minister of Pensions (1946) 2 All ER 501 at 502; Minister of Pensions v Chennell (1947) 1 KB 250 at 256. …

8. If the circumstances of eligible … service provide an operative cause contributing to the service[perso]n’s … disease, it matters not that the relevant circumstances … could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible … service contributed causally to the injury or disease.”

35.    The motor vehicle accidents, on the Applicant’s evidence, as referred to above, have a temporal connection with the eligible service of the Applicant. Having regard to the Applicant’s evidence, the defence service was the setting in which the Applicant had the motor vehicle accidents and not, on the Applicant’s evidence, the cause of them. It is found that there is some connection with the Applicant’s relevant service, but the injury suffered or a disease contracted was not therefore defence-caused on the balance of probabilities.

25    Before the tribunal, Mr Boys also applied for assessment of his pension at the special rate.

26    The criteria for assessment of a pension at the special rate are defined in s 24 of the VE Act, and relevantly included a requirement in s 24(1)(c) that “the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity”.

27    Because the tribunal had concluded that Mr Boys’ cervical spondylosis was not “defence-caused”, it concluded that Mr Boys “was not, by reason of incapacity from the defence-caused injury or defence-caused disease, or both, alone, prevented from continuing to undertake the remunerative work that [he] was undertaking when he last worked as a builder”. It reasoned as follows (footnotes omitted):

39.    The Respondent submits that from the “commencement of the assessment period the Applicant was suffering and continues to suffer from a number of non-service related disabilities, including cervical spondylosis, frontal lobe dysfunction, asthma, bilateral knee problems and sleep apnoea”, therefore in contradiction to s 24(1)(c) of the Act.

…

41.    “The relevant ‘remunerative work that the Applicant was undertaking’ within the meaning of section 24(1)(c) of the Act” was as a builder, in a management and administrative sense, as referred to above. The Applicant stated that in the late 2000’s that his workload reduced to 7 to 10 hours per week in the building business.

42.    As stated in Cavell v Repatriation Commission [(1988) 9 AAR 534]: “… anything that plays a part in excluding [the Applicant] from work is sufficient to prevent applicability of s 24(1)(c)”.

43.    The Applicant stated that if it were not for his back, neck, alcohol abuse, alcohol induced mood disorder and adjustment disorder, he would still be operating the building business.

44.    The Applicant stated that his sleep apnoea condition is controlled by a CPAP machine, so the Applicant is sleeping all night, constantly. The Applicant’s asthma, he stated, was under control, in that he had used medication only once in 2019 up to the date of the hearing. The Applicant stated that he does not consider that he has any issue, from his lay opinion, in terms of having any type of frontal lobe issue. The Applicant stated that he has no problems with his right knee, further to the removal of a piece of cartilage a few years ago. The Applicant stated that he has no problems with his left knee. The Applicant referred to having severe cellulitis in his right lower leg, which required hospitalisation for 6 days, before ‘clearing up’.

45.    Both limbs of section 24(1)(c) are to be satisfied. The second limb of section 24(1)(c) is to be read with section 24(2)(a) of the Act. The Applicant stated that he has not received any salary from the business for about the three years leading into the hearing, from about 2016. The Applicant stated that since 2016 he has been “approached” as to new building work and has ‘knocked them back’ or ‘passed them on’ to others.

46.    As found above, the cervical spondylosis was not defence-caused on the balance of probabilities. The Applicant stated that with the exception of cervical spondylosis, he would still be operating the business. It is therefore found, having regard to the evidence of the Applicant, that the Applicant during the assessment period was not, by reason of incapacity from the defence-caused injury or defence-caused disease, or both, alone, prevented from continuing to undertake the remunerative work that the Applicant was undertaking when he last worked as a builder.

47.    Section 24 of the Act therefore does not apply, in that the Applicant states he is not able to work by reason of the cervical spondylosis, which is not an incapacity from defence-caused injury or defence-caused disease, or both, alone, preventing him from continuing to undertake remunerative work that the Applicant was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account, that the Applicant would not be suffering if the Applicant were free of that incapacity.

The Notice of Appeal

28    On appeal, Mr Boys relied on the following grounds (numbered 5 and 4 respectively in the Notice of Appeal):

5.    The tribunal erred by not applying the correct procedure in determining whether a condition claimed was service related. It relied on incorrect law in formulating its decision.

4.    The tribunal failed to provide adequate and sufficient reasons for its decision as by law. It was obliged under s43(28) of the Administrative Appeals Tribunal Act 1975 (Cth) to provide adequate and sufficient reasons.

29    The Notice of Appeal also identified the following “Questions of law” and “Findings of fact that the Court is asked to make”:

Questions of law

1.    Did the Tribunal err in law in its reliance on Re Repatriation Commission v Norman Edwin Tuite [1993] FCA 39 to ascertain whether the Applicant’s cervical spondylosis injury was attributable to his defence service?

2.    Did the Tribunal err in law in failing in providing adequate and sufficient reasons for its decision?

…

Findings of fact that the Court is asked to make

 1.    That the Applicant[’s] Cervical [Spondylosis] was defence caused;

2.    That the applicant is entitled to payment of pension and that the matter be remitted to the Repatriation Commission for determination [of] the appropriate rate of pension.

30    The respondent conceded error on the part of the tribunal, but made the point that the true errors (detailed below) were not adequately captured by those “questions of law” and the grounds of appeal. In the view I take about the materiality point, nothing turns on that.

The tribunal’s errors

31    As Ms Zoe Maud, who appeared for the respondent, conceded in her helpful written submissions, “[t]he [t]ribunal’s reasons disclose a fundamental misunderstanding of [Mr Boys’] case” and “[i]n particular, [it] made the following two errors”:

19.    First, the Tribunal erroneously found that the applicant had “a dispositional [sic] joint disease in the cervical spine before the clinical onset on cervical spondylosis, as stated in factor 6(f) of the Statement of Principles”: J [32]. Factor 6(f) of SoP 66 of 2014 (which was not relevant to the applicant’s case, as explained above) and factor 6(e) of the correct SoP refer to “having a depositional joint disease in the cervical spine before the clinical onset of cervical spondylosis”. Clause 9 of both SoPs defines “a depositional joint disease” to mean “gout, calcium pyrophosphate dihydrate deposition disease (also known as pseudogout), haemochromatosis, Wilson’s disease or alkaptonuria (also known as ochronosis)”. There was no evidence whatsoever before the Tribunal that the applicant had a “depositional joint disease”, as defined in the SoP. Contrary to the Tribunal’s statement at paragraph 32 of its reasons, Professor Brazenor did not give any evidence that the Applicant had a depositional joint disease for the purpose of the SoP. The Tribunal’s finding in paragraph 32 had no foundation in the evidence. Further, the applicant at no point contended that he had a depositional joint disease prior to the clinical onset of his cervical spondylosis. The finding at paragraph 32 discloses a fundamental misconception by the Tribunal of the applicant’s case.

20.    Secondly, the applicant at no point sought to rely on the causation test stated in s 70(5)(a) of the VE Act; the applicant’s case was solely put on the basis that he suffered trauma to his cervical spine as a result of the motor vehicle accidents in the 1980s, which satisfied the causation test in s 70(5)(b) of the VE Act. The Tribunal’s reference to [Repatriation Commission v Tuite (1993) 39 FCR 540] in paragraph 34 of its reasons, and the analysis in paragraph 35, suggest that the Tribunal was applying the test of whether the motor vehicle accidents “arose out of”, or were “attributable” to the applicant’s defence service (s 70(5)(a) and more relevantly in the context of the application of a SoP, s 196B(14)(b)) rather than considering whether the accidents occurred while the applicant was travelling, while rendering service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty (s 70(5)(b) and s 196B(14)(c)).

21.    It is an error of law for the Tribunal to make findings of fact that were not open on the evidence, or to fail to consider the way in which the applicant’s case was put. Because of those errors, it is irrelevant to enquire whether the Tribunal misapplied the causation test in s 70(5)(a) and 196B(14)(b), because the applicant’s case was not put on the basis that the motor vehicle accidents in the 1980s were connected to the applicant’s service because they “arose out of” or were “attributable” to that service. If that enquiry had been relevant, the Tribunal’s conclusion would have been unsurprising, given the applicant’s evidence regarding the circumstances in which the accidents occurred (J [12, [13] and [15]]. The Tribunal’s application of the test stated in s 70(5)(a) is not inconsistent with Roncevich [v Repatriation Commission (2005) 222 CLR 115].

    …

26.    Although … the more fundamental issue with the Tribunal’s reasons is that they reveal a number of misconceptions about the applicant’s case, the respondent also accepts that the Tribunal’s reasons on the issue of whether the applicant’s cervical spondylosis was defence-caused were inadequate. There were insufficient findings made about the circumstances of the three accidents to explain the Tribunal’s conclusion in paragraph 35.

(Footnotes omitted.)

32    As to the tribunal’s reasons about Mr Boys’ application for payment of his pension at the special rate, Ms Maud submitted that its reasons in that regard were adequate, contrary to Mr Boys’ contention, and coherently explained its application of the test in s 24 of the VE Act.

Consideration

33    At first blush, it might seem unusual, in circumstances where a tribunal has made errors as fundamental as those conceded by the respondent, that a court would consider doing anything other than remitting the matter for a rehearing according to law.

34    However, in this case, having heard from Ms Maud in oral argument, it is clear that because the appellant did not produce, and on appeal to this court did not seek to produce, any “imaging evidence of degenerative change” within the meaning of clause 3(b)(ii) of SoP No 67, his case, if remitted, would be doomed to fail.

35    The cases establish, and it is hardly surprising given the language of clause 3, that the existence of such evidence is a necessary factor before any finding can be made about the existence of the relevant condition. Compare, by way of example, Lees v Repatriation Commission (2002) 125 FCR 331 at 337 [16] (Heerey, Moore and Kiefel JJ); and Repatriation Commission v Gosewinckel [1999] FCA 1273; (1999) 59 ALD 690 at 704 [64] (Weinberg J).

36    By virtue of clause 6(f), the “trauma to the cervical spine” must have existed within 25 years before the clinical onset of cervical spondylosis, as defined in clause 3(b). Here, and counsel for Mr Boys did not seek to contend otherwise, the first “imaging evidence of degenerative change” was the evidence of the radio imaging brought into existence in June 2014. That was, on any view, more than 25 years since the occurrence of the three “traumas” which occurred as a result of the motor car or motor bike accidents that occurred in 1981, 1982, and 1983.

37    Given that Mr De Marchi, counsel for Mr Boys, did not say how else the case would or could be re-run below, it seems to me, for the reason I have explained, that it would be bound to fail. Accordingly, an order remitting it for rehearing would be futile.

38    Another way of putting the point is that, despite the conceded errors made by the tribunal, paragraph [30] of its reasons, set out at [24] above, contained a summary of what would be in any event the complete answer to Mr Boys’ case on any remittal.

39    Counsel for Mr Boys explained during his oral submissions that the case was run before the tribunal on the basis of evidence given by the neurosurgeon, Professor Graeme Brazenor. His written report relevantly opined as follows:

WITH RESPECT TO YOUR SPECIFIC QUESTIONS:

1.    Is it reasonable to state that the whiplash injury suffered by Mr Boys started the disease process that eventually resulted in the diagnosis of cervical spondylosis?

All three of the motor vehicle accidents are highly likely to have injured Mr Boys’ cervical spine in a significant fashion. In fact the head injury of 22 September 1983 is likely to have caused greater damage than the earlier two accidents in which whiplash symptoms were documented.

2.    Could your opinion be stated on the balance of probabilities standard of proof?

On the balance of probabilities Mr Boys had well-established symptomatic cervical spondylosis, probably before but certainly by, the medical board examination of 25 October 1985.

3.    What would be the earliest possible date that a diagnosis of cervical spondylosis could be made?

The medical board examination of 11 October 1984.

4.    Mr Boys has suffered headaches for many years which have been described as migraines. Is it possible that a more correct cause of his headaches is cervicogenic in origin?

I believe this is highly likely.

40    In the course of his cross-examination before the tribunal, Professor Brazenor gave the following evidence:

Okay. Just finally the date that you’ve given there for the date of clinical onset, would you say that that date represents perhaps the date upon which the process, relevant to eventually arriving at a diagnosis, really begins for the cervical spondylosis or ---? --- No, look ---

I mean appreciating it’s a degenerative condition? --- Sure. Firstly, I wouldn’t accept the condition to be progressive, except by multiple car accidents. That’s the first thing. But I picked 25 October [1985] because he was examined and interviewed that day by the Medical Board and I felt that their description of headaches, migraines and the history, together with what we knew of him having at least three accidents until then, I thought that was good days in which to say, well, look here’s some people who examined him at this time and I think their description is consistent with cervical spondylosis of some degree.

41    It was this evidence that Mr Boys relied on before the tribunal to support his submission, recorded at [30] of its reasons, that “13 June 2014 is the date at which the diagnosis is ‘confirmed’, submitting that that would be the ‘norm’ as to a condition described as degenerative in nature”.

42    But as the tribunal correctly went on to say, “[f]or the purposes of the Statement of Principles there is not ‘cervical spondylosis’ until 13 June 2014, in that there is not until that time … imaging evidence of degenerative change, including disc space narrowing or osteophytes, as required by sub-paragraph 3(b)(ii)”.

43    In circumstances where the appellant’s counsel did not suggest that the case could or would be run any differently were it remitted, even assuming on such a remittal that he would be permitted to run a new case (doubtful in itself), it seems to me that the respondent’s contention that it would be an exercise in futility to remit the matter for a rehearing must be accepted.

44    In his oral address, counsel for Mr Boys also submitted that the court should have regard to the “other commonly associated features” identified in clause 3(b), as follows:

If you read on after the 3(b), your Honour, it has the requirement of 1 and 2 but then it goes on. The definition doesn’t stop there. It says:

Other commonly associated features include facet joint arthritis, bone hypertrophy and spinal stenosis.

So those things are associated with it. They’re part of the definition. They don’t need to be read with imaging.

45    That submission is, with respect, without merit. Whether or not any other associated features existed (which was not clear in any event) does not affect the tribunal’s finding that, until 13 June 2014, there was no imaging evidence of degenerative change.

46    I should also say something very briefly about another point that arose during the course of argument.

47    During the course of his submissions, Mr De Marchi made a submission the substance of which was that because his client made an application to the Repatriation Commission at a time when SoP No 34 applied, he had a vested right to have his application determined according to SoP No 34, not SoP No 67, which came into effect by the time the Commission made its decision. I was referred, in particular, to Gorton v Repatriation Commission [2001] FCA 286; (2001) 63 ALD 723 (Stone J) and on appeal Repatriation Commission v Gorton (2001) 110 FCR 321 (Heerey, Emmett and Allsop JJ).

48    However, cases of that type, which deal with a situation where the question arises as to which Statement of Principles applies after the Commission has made its decision, have no bearing on this case. This case is governed by the reasoning in Repatriation Commission v Keeley (2000) 98 FCR 108 and Repatriation Commission v Thompson (2001) 107 FCR 235. As Emmett J explained in Thompson at 247 [48]–[51]:

48    The majority in Keeley’s Case formulated the question as whether a determination made by the Authority under s196B “affects” any right that has accrued under the Act: at [40]. That formulation was drawn from 50 of the Acts Interpretation Act 1901 (Cth) which provides:

“Where an Act confers power to make regulations, the repeal of any regulations which have been made under the Act shall not, unless the contrary intention appears in the Act or regulations effecting the repeal:

(a)    affect any right … accrued … under any regulations so repealed;

…”

Accordingly their Honours said (at [46]) that unless a contrary intention is clearly disclosed it is to be presumed that accrued rights are determined under the law as it stood when the right accrued. Their Honours considered that an analysis of the provisions of s120A and s196B showed that those provisions involved more than alterations of a procedural character in that they purport to define the scope of liability of the Commonwealth under the Act by, in effect, confining the claim that a claimant may present: at 122 [40].

49    Section 120A(2) provides that if the Authority has given notice under s196G that it intends to carry out an investigation in respect of a particular kind of injury or disease, the Commission is not to determine a claim in respect of the incapacity of the person from an injury or disease of that kind unless or until the Authority:

•    has determined a Statement of Principles in respect of that kind of injury or disease; or

•    has declared that it does not propose to make such a Statement of Principles.

50    The majority in Keeley’s Case accepted that the terms of s120A(2) show a clear intention by Parliament that such a Statement of Principle is to “affect” the accrued right obtained by the lodgment of a claim under the Act to have the claim decided by the Commission. By postponing a right to have a claim decided until a Statement of Principles has been determined, Parliament intended that the decision, and therefore the right to have a decision made, could be affected by a Statement of Principles and that a pending claim is to be decided by application of the Statement of Principles when determined: at 123 [44].

51    However, the majority considered that 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 …

49    Justice Emmett referred to s 120A(2), which is the provision governing operational service. Section 120B(2) governs this case because it applies to claims that relate to “eligible war service” (which is the category of service applicable to Mr Boys). It is in relevantly identical terms.

50    It follows that I am bound to reject the submission made on behalf of Mr Boys that he had an accrued right to have his application determined according to SoP No 34.

51    Little, if anything, was said on appeal about Mr Boys’ complaint that the tribunal’s reasons in relation to his application for payment of his pension at the special rate were inadequate. In my view, the tribunal’s reasons on that point (see [27] above) were adequate and no error of law is made out.

52    For those reasons, the appeal must be dismissed.

53    The parties did not mention the question of costs. I will give them seven days to file any submissions they may wish to make on that issue, if it be an issue.

Associate:

Dated:    23 March 2022