Bailey v Repatriation Commission

Case [2019] FCA 1840

FEDERAL COURT OF AUSTRALIA

Bailey v Repatriation Commission [2019] FCA 1840

File number: VID 1241 of 2017
Judge: ANASTASSIOU J
Date of judgment: 11 November 2019
Catchwords:

ADMINISTRATIVE LAW – veterans’ entitlements – whether tribunal misapplied ss 120(3) of the Veterans’ Entitlement Act 1986 (Cth) (VE Act) – Tribunal erred in finding material did not point to a hypothesis by weighing evidence

ADMINISTRATIVE LAW – veterans’ entitlements – whether Tribunal misapplied ss 196B(14) of the VE Act – whether ‘but for’ and ‘operative cause’ tests sufficient in circumstances – Tribunal erred

Legislation: Veterans’ Entitlement Act 1986 (Cth), ss 5C, 6-6F, 7, 9, 13, 120, 120A, 196B   
Cases cited:

Bailey and Repatriation Commission (Veterans' entitlements) [2017] AATA 1909

Borrett v Repatriation Commission [2000] FCA 1829

Browne v Dunn (1893) 6 R 67

Bull v Repatriation Commission [2001] FCA 1832 188 ALR 756; 4 AAR 326; 66 ALD 271

Cia Compania Martiartu v Royal Exchange Assurance Corporation [1923] 1 KB 650

Collins v Administrative Appeals Tribunal (2007) 163 FCR 35; FCAFC 111; 46 AAR 56; 96 ALD 536, [48]

Dixon v Repatriation Commission [1999] FCA 582

East v Repatriation Commission (1987) FCR 517

Forrester v Repatriation Commission [2013] FCA 898

Goward v Commonwealth (1957) 97 CLR 355, 364

Kattenberg v Repatriation Commission [2002] FCA 412; (2002) 73 ALD 365

March v E & MH Stramare Pth Ltd (1991) 171 CLR 506

Military Compensation and Rehabilitation Commission v Wall [2004] FCA 1711

Military Rehabilitation & Compensation Commission v Wall [2005] FCAFC 127; 88 ALD 1

Repatriation Commission v Deledio [1988] FCA 391; 83 FCR 82

Repatriation Commission v Patterson [2006] FCAFC 165; 94 ALD 66

Repatriation Commission v Tuite [1993] FCA 43; 17 AAR 158

Rhesa Shipping Co SA v Edmunds and Another: The Popi M [1985] 2 All ER 712

Roncevich v Repatriation Commission [2005] HCATrans 208

Date of hearing: 21 March 2019
Date of last submissions: 21 March 2019
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 53
Counsel for the Applicant: Ms F. Ryan
Solicitor for the Applicant: Williams Winter Solicitors
Counsel for the Respondent: Ms Z. Maud
Solicitor for the Respondent: Australian Government Solicitor’s office

ORDERS

VID 1241 of 2017
BETWEEN:

JAMES BAILEY

Applicant
AND:

REPATRIATION COMMISSION

Respondent

JUDGE:

ANASTASSIOU J

DATE OF ORDER:

11 NOVEMBER 2019

THE COURT ORDERS THAT:

1.The application is allowed.

2.The respondent pay the applicant’s costs of and incidental to the application.

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


REASONS FOR JUDGMENT

ANASTASSIOU J:

  1. The applicant applies for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of the Veteran’s Review Board which had affirmed a decision of the respondent, the Repatriation Commission.  The subject of the Commission’s decision was a claim by the applicant that the medical condition from which he is…

Continue reading Bailey v Repatriation Commission

Sign in free to access the full text

Details
AGLC
Bailey v Repatriation Commission [2019] FCA 1840
Case
[2019] FCA 1840
Decision Date

CaseChat Overview and Summary

The case of Bailey v Repatriation Commission involved an appeal by the applicant against the decision of the Tribunal which dismissed his claim for a pension on the basis that his cirrhosis of the liver was not attributable to his war service. The applicant, a former member of the Australian Navy, had served from 1960 to 1972 and claimed that his liver condition was a result of his service, particularly the stress experienced during his deployments. The Tribunal, however, found that the applicant's excessive alcohol consumption, which was the primary cause of his cirrhosis, was not related to his war service. The legal issues before the court were whether the Tribunal had misapplied the statutory provisions in its decision and whether it had erred in its factual findings. The applicant argued that the Tribunal had incorrectly assessed the evidence at the third step of the Deledio analysis by engaging in a fact-finding exercise rather than simply determining if the evidence pointed to a hypothesis. He also contended that the Tribunal had failed to adequately consider the causal link between his post-war alcohol consumption and his service.

The court found in favour of the applicant and held that the Tribunal had indeed misapplied the statutory provisions. The court held that the Tribunal should not have engaged in a fact-finding exercise at the third step of the Deledio analysis, but should have determined whether the material before it pointed to a hypothesis connecting the disease with the service. Furthermore, the court found that the Tribunal's conclusion that the material did not point to a hypothesis was incorrect. The evidence presented by the applicant suggested that his increased alcohol consumption during his service could be linked to the stress of his operational duties, which the Tribunal had failed to properly consider. The court also found that the Tribunal had erred in limiting its consideration of the causal link to the specific circumstances outlined in section 196B(14)(f) of the Veterans’ Entitlement Act 1986 (Cth). The court concluded that the Tribunal's errors in applying the statutory provisions and in its factual findings warranted the allowance of the appeal.

The court ordered that the application be allowed and that the respondent pay the applicant's costs of and incidental to the application. This decision was significant as it clarified the correct application of the statutory provisions in veterans’ entitlement cases and highlighted the importance of properly considering all relevant evidence in such claims.

Orders

Orders of the court

1. The application is allowed.

2. The respondent pay the applicant’s costs of and incidental to the application.

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

Background

Background to the litigation

For the reasons that follow the appeal is allowed. BACKGROUND The applicant served with the Permanent Naval Forces from 10 July 1960 until 10 July 1972. There is a discrepancy in some of the evidence about whether the applicant commenced his service on 10 June or 10 July 1960, but nothing turns on this difference. The applicant joined the Royal Australian Navy at the age of 16. He trained at HMAS Leeuwin, before being posted to HMAS Anzac. It was while on the Anzac that the applicant says he started to drink alcohol. Although he was underage at the time, there was a beer ration supplied to the crew. At this time he said he was drinking between three and four glasses of beer per day. The applicant undertook operational service on HMAS Voyager in the Malay Peninsula, Singapore, from 8 February 1963 to 1 March 1963, from 10 March 1963 to 29 March 1963 and from 15 April 1963 to 10 May 1963. He was not on board the Voyager at the time of its collision with the HMAS Sydney. However, he had friends on board who were injured or killed. The applicant claims that as a result of the distress caused by the collision, his drinking increased to around nine glasses of beer per day, and his marriage subsequently broke down. The applicant also rendered operational service on HMAS Yarra, for various periods between 31 March 1965 and 9 June 1966, during what has become known as the Indonesia-confrontation. The applicant claimed that during this confrontation he was in a state of fear of attack and witnessed the gruesome aftermath of violence at sea while involved in the recovery of bodies from the water. By this time the applicant claimed he was drinking around 15 glasses of beer per day. Following his service, the applicant remained a member of the Navy Reserve until his discharge on 30 September 1999. The applicant has two disabilities accepted under the VE Act and for which he receives a pension, namely Chronic Bronchitis and Emphysema. The legislative regime The VE Act contains a legislative regime under which veterans who are incapacitated by war-caused injury or disease are entitled to a pension: s 13(1). A “veteran” (as defined in s 5C(1) read with s 7), who contracts a disease that “arose out of, or was attributable to” (s 9(1)(b)), any “operational service” (s 7(1)(a)), is to be assessed for a pension in accordance with the standard of proof contained in ss 120 and 120A of the VE Act. The applicant was a veteran as defined and during his deployments as set out above, he was engaged in ‘operational service’ as defined in ss 6 to 6F of the VE Act. The question in this case is whether the applicant’s disease, cirrhosis of the liver, was “war-caused”. This question requires consideration of ss 120 and 120A of the VE Act. Those sections require a four step analytical process. This four step process was explained by the Full Court in Repatriation Commission v Deledio[1988] FCA 391; 83 FCR 82 (at 92):1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Tribunal again considered the applicant’s pattern of alcohol consumption, stating (at [71]):In relation to his alcohol consumption, Mr Bailey’s evidence points to an established pattern of heavy consumption prior to his operational service. This continued during the shore leave he and his shipmates were granted during HMAS Voyager’s operational tour in early 1963. The evidence points to opportunistic binge drinking with comrades before, during and after his operational tour, rather than a response to either general or specific stressors during operations. The causal link Mr Bailey seeks to make between his operational service in 1963, his increased drinking behaviour, and a diagnosis of cirrhosis three years ago, is too remote and tenuous. The evidence does not point to his war service as an operative cause of his excessive drinking, nor does it ‘forcefully point to a conclusion of a connection’. Even with an eye to the beneficial intent of the Act, it cannot be said Mr Bailey’s excessive consumption of alcohol would not have occurred but for the rendering of his operational service in 1963. The other two periods of increased alcohol consumption, which Mr Bailey says resulted from the Voyager accident and during his resettlement in Hamilton after Vietnam, are unrelated to his operational service. (emphasis added) The Tribunal concluded its consideration of the third step in the Deledio analysis at [73], stating: While it is not contested that Mr Bailey consumed the requisite quantity of alcohol, section 10 of the SoP also requires that factor to be related to his operational service. The whole of the material before me does not point to a discernible pattern of increased alcohol consumption, related to Mr Bailey coping with the general or specific stressors he relies upon during his operational service. After considering the whole of the material before me, I am satisfied beyond reasonable doubt that the facts raised by the evidence do not give rise to a reasonable hypothesis. (emphasis added) Under the heading: “Stage 4: Whether the factual evidence satisfies the standard of proof?” the Tribunal stated “[a]s no reasonable hypothesis has been raised connecting Mr Bailey’s Cirrhosis with his relevant service, it is not necessary to consider the fourth Deledio stage” (at [74]). QUESTIONS ON APPEAL AND CONTENTIONS The applicant’s amended notice of appeal contained three Grounds as follows:1.The Tribunal misapplied s 120(3) of the Act by embarking on a fact finding exercise at step 3 of the process of reasoning referred to in … Deledio.2.The Tribunal erred in finding that the material before it did not point to a hypothesis connecting the veteran’s cirrhosis of the liver with the circumstances of his service.[the amended notice of appeal deleted the previous Ground 3 and added a new Ground 4]4. The Tribunal erred by limiting its consideration of any causal link between the veteran’s post-war alcohol consumption and service to the circumstance set out at s 196B(14)(f) of the Act.Grounds 1 and 2