Beale, John Elgar v Administrative Appeals Tribunal

Case •

[1998] FCA 218

•

16 MARCH 1998

FEDERAL COURT OF AUSTRALIA

VETERANS’ AFFAIRS - application for review of conduct of Administrative Appeals Tribunal - refusal by Administrative Appeals Tribunal to adjourn hearing of application for review of decision in relation to claim on Repatriation Commission for pension - existing Statement of Principles applicable to claims - separate review of Statement of Principles being conducted - whether Administrative Appeals Tribunal prevented from deciding application until review of Statement of Principles completed.

Administrative Decisions (Judicial Review) Act 1977 ss 6, 10
Veteran’ Entitlements Act 1986 (Cth) ss 120, 120A, Parts XIA, XIB
Veterans Affairs (1994-95) Budget Measures Legislation Amendment Act 1994 (Cth)

Deledio v Repatriation Commission (1997) 25 AAR 396, considered
Director General of Social Services v Chaney (1980) 47 FLR 80, referred to
McMillan v Repatriation Commission (1997) 25 AAR 123, referred to
McMillan v Repatriation Commission (Marshall J, 27 February 1998, unreported), considered
McMillan v Repatriation Commission (Northrop J,11 July 1997, unreported), discussed
Thornton v Repatriation Commission (1981) 52 FLR 285, applied
Vietnam Veterans Association of NSW v Cohen (1996) 70 FCR 419, considered

JOHN ELGAR BEALE v ADMINISTRATIVE APPEALS TRIBUNAL and REPATRIATION COMMISSION

NG 1053 of 1997

LINDGREN J
SYDNEY
16 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 1053  of   1997

BETWEEN:

JOHN ELGAR BEALE
APPLICANT

AND:

ADMINISTRATIVE APPEALS TRIBUNAL
FIRST RESPONDENT

REPATRIATION COMMISSION
SECOND RESPONDENT

JUDGE:

LINDGREN J

DATE OF ORDER:

16 MARCH 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

  1. The application be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

 NG 1053 of 1997

BETWEEN:

JOHN ELGAR BEALE
APPLICANT

AND:

ADMINISTRATIVE APPEALS TRIBUNAL
FIRST RESPONDENT

REPATRIATION COMMISSION
SECOND RESPONDENT

JUDGE:

LINDGREN J

DATE:

16  MARCH 1998

PLACE:

SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION
The applicant (“Mr Beale”) applies under s 6 of the Administrative Decisions (Judicial Review) Act 1977 (“the AD (JR) Act”) for an order of review in respect of conduct in which the first respondent (“the AAT”), constituted by Mrs M Lewis, Senior Member, proposes to engage. The application describes that conduct as the proposed hearing on 17 March 1998, by the AAT of an application by Mr Beale which is pending before it, regardless of whether the Repatriation Medical Authority (“RMA”) has completed its review of Statement of Principles No 352 of 1995. Mr Beale’s application states that he is aggrieved by this proposed conduct of the AAT because his application can succeed only if the RMA’s current review of the content of the Statement of Principles (“SoP”) to which I referred is completed and that SoP is amended prior to the hearing in a manner sought by him. It is common ground that this will not occur by 17 March. According to the evidence before me, the review by the RMA is not expected to be completed prior to mid 1998.

The grounds of Mr Beale’s application are, first, that a breach of the rules of natural justice is likely to occur in connection with the proposed conduct of the AAT for the purpose of its making its decision on his application, and, second, that the making of that decision would involve a failure by the AAT to take a relevant consideration into account in the exercise of the power conferred by the Veterans’ Entitlements Act, 1986 (Cth) (“the VE Act”) to determine pension claims. In his application to this Court, Mr Beale relies on the same “particulars” in support of both grounds. They conveniently expose, in outline, some of the background facts:

“The Applicant has sought a review by the First Respondent of a decision by the Second Respondent to refuse his claim for a pension in respect of incapacity from osteoarthrosis of the left knee and right foot.   Pursuant to s 120A(2) of the Veterans’ Entitlement Act 1986 [sic], the claim has to be dealt with in accordance with the relevant Statement of Principles prepared by the Repatriation Medical Authority.   The terms of the current Statement (Statements of Principles No. 352 of 1995) mean that the Applicant’s claim cannot succeed. As part of his claim, the Applicant asked the Specialist Medical Review Council to review the contents of the current statement. The Council recommended that the Repatriation Medical Authority reconsider that aspect of its statement that the Applicant had challenged. The Repatriation Medical Authority is in the process of conducting such a review but it is unlikely to be completed and given effect by 17 March 1998, when the Applicant’s Tribunal application is listed for hearing. On 12 November 1997, the Tribunal, in effect, directed that the hearing of the Applicant’s Tribunal application not be delayed pending the outcome of the Authority’s review. The conduct proposed by the Tribunal will deny the Applicant the opportunity to have a critical aspect of his case considered, in accordance with the scheme for determining pension claims established by the Veterans’ Entitlements Act.”

The AAT has filed a submitting appearance. As a result of cooperation by all concerned, and, in particular, as a result of the making of helpful detailed submissions in writing, the Court has been able to give Mr Beale’s application an expedited final hearing outside ordinary Court sitting hours.

PRELIMINARY MATTERS
It is convenient to dispose of three matters at the outset.
Jurisdiction
The first is a question as to the basis of the Court’s jurisdiction. Subsection 6 (1) of the AD (JR) Act provides, relevantly, that where a person proposes to engage in conduct for the purpose of making “a decision to which [the AD (JR)] Act applies,” a person who is aggrieved by the conduct may apply to the Court for an order of review in respect of the conduct on any one or more of the grounds set out in the subsection. The decision which the AAT proposes to make on 17 March on Mr Beale’s application before it will satisfy the definition of a “decision to which this Act applies” found in s 3 (1) of the AD (JR) Act, namely, relevantly, “a decision of an administrative character ... under an enactment”. But s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) will give Mr Beale a right of appeal to this Court from the AAT’s decision on a question of law. Section 10 of the AD (JR) Act provides that the rights conferred by ss 5, 6 and 7 of that Act to a person to apply to the Court in respect of a decision, conduct engaged in for the purpose of making a decision, or failure to make a decision, are in addition to, and not in derogation of, other rights of that person to seek a review of the decision, conduct or failure, but that the Court may, in its discretion, refuse to grant an application under those sections for the reason that, relevantly, adequate provision is made by any law other than the AD (JR) Act under which the applicant is entitled to seek a review of the decision, conduct or failure. On the assumption that the discretion to refuse to grant Mr Beale’s present application for relief is available to me under s 10 of the AD (JR) Act, I agree with the parties that that discretion should not be exercised: it is convenient that the issues between the parties be determined now, rather than following an inevitable dismissal on 17 March of Mr Beale’s pending application before the AAT.

McMillan v Repatriation Commission, unreported, FCA/Northrop J, 11 July 1997
The second matter to which I referred is the decision of Northrop J in McMillan v Repatriation Commission, unreported, 11 July 1997. In that case, applicants for review before the AAT had been refused an adjournment in circumstances similar to those of the present case (Re McMillan and Repatriation Commission (1997) 25 AAR 123 (Deputy President McDonald)). They purported to appeal to the Court under s 44 of the AAT Act from the AAT’s decision refusing the adjournment. Northrop J dismissed their appeals as incompetent on the ground that there was no “decision” of the AAT for the purposes of s 44. In short, his Honour so held because the decision to refuse the adjournment was not, as required by s 44, the “final” or “ultimate” decision of the AAT on the applications before it (his Honour referred to Director General of Social Services v Chaney (1980) 47 FLR 80 at 100-103 (Deane J)). His Honour’s decision presents no difficulty for Mr Beale’s present application to the Court, which seeks a review, not of a decision, but of proposed conduct.

McMillan v Repatriation Commission, unreported, FCA/Marshall J, 27 February 1998
Thirdly, there is the recent decision of Marshall J in McMillan v Repatriation Commission, unreported, 27 February 1998. The facts were those of the case of the same name which had been before Northrop J. Before Marshall J, however, the applicants sought review of the final decisions of the AAT on the applications before it. The applicants submitted before Marshall J that the AAT had erred by failing to adjourn the final hearing until the RMA had determined its review of the content of the existing relevant SoP. The argument turned on the construction of s 120A (2) of the VE Act, the terms of which are set out below. Shortly, his Honour held that that subsection did not require the second respondent (“the Commission”) or those who stood in its shoes (relevantly, the Veterans’ Review Board (“the VRB”) and the AAT) not to determine a claim for a pension, until the RMA had completed its review of the contents of an existing SoP. Having concluded that the error of law relied on by the applicants had not been committed, his Honour dismissed their appeal.

Mr Beale does not seek to re-agitate the issue decided by Marshall J. However, the fact that s 120A (2), upon its proper construction, does not apply to an investigation by way of review of the contents of an existing SoP, will be seen to have some relevance to the issues which I have to decide.

LEGISLATIVE SCHEME
Section 120 of the VE Act addresses the standard of proof to be met in respect of, relevantly, a claim under Part II of that Act for a pension, in respect of, relevantly, a veteran’s incapacity from injury or disease where the claim relates to operational service rendered by the veteran. The section provides that in such a case, the Commission must determine that the injury or disease was war-caused, unless it is satisfied “beyond reasonable doubt” that there is no sufficient ground for making that determination. Subsection 120 (3) provides that in applying this provision, the Commission is to be so satisfied beyond reasonable doubt if, after considering the whole of the material before it, the Commission is of the opinion that such material “does not raise a reasonable hypothesis” connecting the injury or disease with the circumstances of the particular service rendered. Clearly, these provisions favour claimants.

It was thought that the provisions worked unsatisfactorily. Accordingly, the VE Act was amended by the Veterans’ Affairs (1994-1995 Budget Measures) Legislation Amendment Act 1994 (No 98 of 1994). The deficiencies which were sought to be overcome are described in the Second Reading Speech of the Minister for Veterans’ Affairs (Parl Debs, HR, 9 June 1994, at 1806-1811 - “SRS”) and the Explanatory Memorandum which accompanied the Bill for the amending Act (“Explanatory Memorandum”). They show that the amendments were made:

(a)to deal with, inter alia, the “relaxed interpretation” of the “reasonable hypothesis” test which it was thought had come to prevail, what was perceived to be a “lack of consistency in decision making”, and the “inappropriateness of laymen determining complex questions of medical causation” (SRS 1806-1807);

(b)to “ensure consistency in the determining of claims” (SRS 1807, Explanatory Memorandum 3);

(c)to overcome “the maverick and fringe claims” that were thought to have “interfered with the integrity of an extremely generous repatriation system, without having to return to a civil standard of proof for the determination of claims” (SRS 1809);

(d)“to ensure that the credibility of the repatriation system is maintained and that medical opinions supported by little or no medical-scientific evidence do not prevail over the carefully developed mass of medical-scientific opinion” (SRS 1809);

(e)to ensure that hypotheses are not found “reasonable” unless “based on sound evidence from the field of medical science” (Explanatory Memorandum 3);

(f)to ensure that “an opinion held by a single medical practitioner, however eminent, that does not have sound medical-scientific support, will no longer be sufficient as the basis of a reasonable hypothesis” (Explanatory Memorandum 3);

(g)to remove from delegates of the Commission, or, at the review stage, lawyers or lay persons, “purely medical causation issues”(Explanatory Memorandum 3); and

(h)to make an expert medical authority, the RMA, the authority for the resolution of technical medical-scientific issues and thereby to ensure consistency on such issues at all levels of the system (SRS 1808).

Accordingly, the following changes, in particular, were made:

(a)Part XIA (ss 196A-196U) was introduced establishing the RMA and investing it with the functions of determining, declining to make, and reviewing SoPs that state what factors, relating to service, must exist for there to be a reasonable hypothesis of a pensionable causal connection between a particular kind of injury, disease or death on the one hand and service on the other (s 196B);

(b)Part XIB (ss 196V-196ZP) was introduced establishing a Specialist Medical Review Council (“SMRC”) with functions of review of the RMA’s work (s 196W);

(c)Section 180A permits the Commission to make a determination that overrides, in a way favourable to claimants, a decision of the RMA;

(d)Subsections 120A (2) and 120B (2) prohibit the Commission from determining a claim if the RMA has given notice under s 196G of its intention to carry out an investigation in respect of a particular kind of injury, disease or death, but has not yet determined an SoP or declared that it does not propose to make one;

(e)Subsections 120A (3) and 120B (3) make a relevant SoP (or a determination by the Commission under ss 180A (2) or (3) respectively) the exclusive basis for deciding whether a particular kind of disease, injury or death is causally related to service;

(f)Subsections 120A (4) and 120B (4) provide that ss 120A (3) and 120B (3) do not apply where the RMA has neither determined an SoP nor declared that it does not propose to make an SoP in respect of a particular kind of injury, disease or death.

Against the above background, it is appropriate to note some of these provisions in more detail. Subsections 120A (1) and 120B (1) provide that ss 120A and 120B apply to, relevantly, claims made on or after 1 June 1994, under, relevantly, Part II, that relate to operational service rendered by a veteran. Section 120A (2) is as follows:

“(2)  If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a)has determined a Statement of Principles under subsection 196B (2) [in s 120B (2), the reference is to s 196B (3)] in respect of that kind of injury, disease or death; or

(b)has declared that it does not propose to make such a Statement of Principles.”

Section 196G occurs in Part IIA. Before coming to that section, I will describe certain other relevant provisions of that Part. Section 196A establishes the RMA. Section 196B sets out its functions. Importantly, the various subsections of s 196B are divided into three groups. First, subs (2) and (3) provide for the initial determinations of SoPs. Second, subss (4)-(6) provide for the carrying out of investigations by the RMA. Third, subss (7)-(14) relate to subsequent investigation and review of previous determinations concerning SoPs.

Subsection 196B (7) provides that if the RMA is asked under s 196E to review the contents of an SoP or thinks that there are grounds for such a review, or is directed by the SMRC under s 196W (7) to carry out an investigation in respect of a particular kind of injury, disease or death, the RMA must, except in one case not presently relevant, carry out an investigation. Subsection 196B (8) provides that if, thereafter, the RMA is of the view that there is a new body of sound medical-scientific evidence available, that, together with that previously considered by the RMA, justifies the making of an SoP or an amendment of the SoP already determined, the RMA must determine that SoP, or make a determination amending that existing SoP, or revoke the existing SoP and determine a new one.

Section 196E assumes significance in the present case and is as follows:

“196E. (1)  Any of the following:
(a)      the Commission;
(b)      a person eligible to make a claim for a pension under Part II or IV;

(c)an organisation representing veterans, Australian mariners, members of the Forces, members of the Peacekeeping Forces or their dependants;

may ask the Repatriation Medical Authority:

(d)to carry out an investigation under subsection 196B (4) in respect of a particular kind of injury, disease or death; or

(e)to review a decision of the Authority under subsection 196B (6) not to make a Statement of Principles in respect of a particular kind of injury, disease or death; or

(f)to review the contents of a Statement of Principles in force under this Part.

(2)      The request must:
(a)      be in a form approved by the Authority; and
(b)      must be lodged at an office of the Department.

(3)      The Secretary must send the request to the Repatriation Medical Authority within 28 days.” (emphasis supplied)

Mr Beale is a person eligible to make a claim for a pension under Part II. He has therefore been entitled, at all material times, to make a request of the RMA of a kind referred to in s 196E (1) (f), whereupon the RMA is required by s 196B to carry out an investigation.

Section 196G, referred to earlier, provides that as soon as practicable after the RMA has received a request under s 196E to carry out an investigation or to review a decision of the RMA not to make an SoP or to review the contents of an existing SoP, or, in the alternative, has decided on its own initiative to carry out such an investigation or such a review, the RMA must publish in the Gazette a notice of its intention, calling for submissions.

Within Part XIB (ss 196V-196ZP), only s 196Y need be noted at this stage. Section 196Y is generally similar to s 196E set out above, but gives a right of request of the SMRC rather than of the RMA. Section 196Y is as follows:

196Y.  (1)   Subject to subsection (2), any of the following:
(a)      the Commission ;
(b)      a person eligible to make a claim for a pension under Part II or IV;

(c)an organisation representing veterans, Australian mariners, members of the Forces, members of Peacekeeping Forces or their dependants;

may ask the Review Council to review:

(d)the contents of a Statement of Principles in force under Part XIA;  or

(e)a decision of the Repatriation Medical Authority not to make a Statement of Principles in respect of a particular kind of injury , disease or death.

(2)      The request must be made:

(a)in the case of a request to review the contents of a Statement of Principles - within 3 months after the Statement of Principles was made, amended or last amended; or

(b)if paragraph (a) does not apply - within 3 months after the decision of the Authority.

(3)   A request must:

(a)be in a form approved by the Review Council ; and

(b)      state the grounds on which the review is sought; and
(c)       be lodged at an office of the Department.

(4)The Secretary must send the request to the Review Council, and notify the Repatriation Medical Authority of the request, within 28 days.”

FACTUAL BACKGROUND
By claim dated 19 December 1994, Mr Beale claimed a pension and other benefits under the VE Act in respect of problems with his knees and right foot. On 26 April 1995, the Commission found that he was suffering from osteoarthrosis of the left and right knees and right foot, but rejected his claims. On 31 October, the VRB granted a pension for osteoarthrosis of the right knee, but affirmed the Commission’s other decisions. On 4 December 1995, Mr Beale applied for a review by the AAT of the VRB’s decision.

Mr Beale’s service was “operational service” under s 6 (1) (a) and (d) of the VE Act. Accordingly, the success of Mr Beale’s claim depended on whether there was a reasonable hypothesis connecting his osteoarthrosis of the left knee and right foot with the circumstances of his particular service (s 120 (3) of the VE Act). His claim was based on the hypothesis that chronic loadings on those joints during his army service from 6 January 1944 to 16 December 1946 (just under the three years) contributed to the onset or severity of those problems.

Because Mr Beale’s claim was made after 1 June 1994, an hypothesis connecting his osteoarthrosis with the circumstances of his particular service is reasonable only if there is in force an SoP that upholds the hypothesis (s 120A (3)).

The RMA has made three SoPs relevant to Mr Beale’s case:

Statement of Principles Concerning Osteoarthrosis (Instrument number 71 of 1995) dated 20 February 1995;

Amendment of Statement of Principles Concerning Osteoarthrosis (Instrument number 336 of 1995) dated 29 August 1995; and

Amendment of Statement of Principles Concerning Osteoarthrosis (Instrument number 352 of 1995).

As a result of the latter amending Instrument, the relevant SoP as amended includes, relevantly, par 1 (b) (vii) to the effect that for his localised osteoarthrosis (of a weight-bearing joint of the lower limb), Mr Beale must establish that he was occupationally required to undertake continuous heavy physical activity for at least ten years before the clinical onset of the osteoarthrosis. Mr Beale’s service of just under three years falls far short of this period. It is for this reason that he accepts that he must fail before the AAT on 17 March, if his pending application to the AAT is to be heard on that date.

However, on 4 January 1996, Mr Beale, as a person eligible to make a claim for a pension under Part II, had asked the SMRC, pursuant to s 196Y of the VE Act, to review the contents of SoP number 352/1995. His application to the SMRC for review stated the following grounds:

“I seek review of Item (b) (vii) [sic - 1 (b) (vii)] which requires that, for osteoarthrosis of a weight bearing joint of the lower limb to be accepted, the veteran is required to undertake heavy physical activity for at least ten years before clinical onset of osteoarthrosis. The ten year requirement is excessive, arbitrary, takes no account of the particular circumstances of individual veterans, and is designed to exclude claims, since very few indeed serve for ten years or more.”

Mr Beale submitted reports dated 14 June 1996 and 26 August 1996 of Professor Philip Sambrook to the SMRC. The SMRC also received written and oral submissions, including submissions on behalf of Mr Beale. I will come shortly to the SMRC’s recommendation dated 24 March 1997. But first, it is necessary to note that on 26 February 1997, the RMA gave notice in the Gazette of its intention to carry out an investigation of “osteoarthrosis and trauma to the relevant joint”. This step seems to have been the result of an unrelated request made of the RMA under s 196E.

On 24 March 1997, the SMRC recommended that the RMA reconsider the effects of repetitive micro trauma on osteoarthrosis, although the SMRC had been advised by the RMA secretariat that a reconsideration by the RMA was already under way in any event. On 14 May 1997, the SMRC wrote to the Registrar of the AAT advising that it was not possible to know when the RMA would complete its reconsideration, nor what changes, if any, to the SoP would be made. However, the SMRC asked the AAT to delay any consideration of the matter until the RMA had completed its reconsideration.

At the instance of Mr Beale, his application before the AAT was adjourned several times. Ultimately, on 12 November 1997, the AAT directed as follows:

“1.this matter shall not be delayed further while awaiting a review by the Repatriation Medical Authority of Instrument No 71 of 1995 as amended by Instrument nos 336 and 352 of 1995; and

2.the matter be listed for Callover on 19 November 1997, at which time it shall be listed for hearing at the first available date taking into account the availability of witnesses; and

3.the hearing shall not be vacated unless it can be demonstrated that there has been a significant change in circumstances from those presented to the Tribunal at this Directions Hearing and which were taken into account in these Reasons for Direction such that it is determined by the Presiding Member to justify varying the Direction as stated.”

At the callover on 19 November, the AAT fixed Mr Beale’s application for hearing on 17 March 1998.

Senior Member Lewis gave reasons on 12 November 1997 for the making of the directions set out above. I find it convenient to set out the following extracts from those Reasons for Decision:

“8.  The Tribunal [in] Re McMillan in refusing adjournments, held that the legislation did not contemplate there being indefinite adjournments pending the review of an initial decision by the RMA.   In that matter Deputy President McDonald said -

The Tribunal is satisfied that in its content and form the legislation does not contemplate there being indefinite adjournments pending the review of an initial decision by the RMA as to whether or not it will grant a SoPs.   Given that in carrying out a review, both the RMA and/or the SMRC are involved in a legislative function, the case law does not support the applicants’ contention that an adjournment should be granted.   Despite the beneficial nature of the legislation, in this case, there must, as always, be limitations on the rights conferred.   It would, in the view of the Tribunal, be extending those rights to a greater degree than is contemplated by the Act or by the decided cases if the adjournments were to be granted upon request.   There may be specific cases where it is appropriate to grant adjournments.   Each case would depend on its particular circumstances.   There is, however, nothing suggested in the circumstances of any of the cases before the Tribunal which would give rise to such a consideration being undertaken. (emphasis added)

9.        ...

10.      ...

11.  The Tribunal has taken into account the delay which has occurred already in this matter where, unwittingly, the matter was delayed without objection.   The Tribunal has taken the circumstances of that delay into account.   It would be unfair to have allowed such a delay and then, at this stage, refuse a further delay if there was any reasonable indication that the RMA had received a recommendation from the SMRC which could be identified to be in the Applicant’s favour.   However, that is clearly not the case.   The following paragraphs of the SMRC decision highlight for the Tribunal that in referring the issue to the RMA there is no apparent solution to the problems which have been raised.

[Paragraphs 103-106 of the SMRC’s decision were then set out.]

12.      The Tribunal considers that there is nothing in those relevant paragraphs of the SMRC decision that gives any particular joy to the Applicant in this matter except to indicate that ‘the door is not yet locked’.   Even if it had been reasonable to allow time for the Applicant to take his application for review of the Statement of Principles to the SMRC (and the Tribunal makes no admission that this is so), having received the SMRC decision in its terms, there is no justification in that decision to allow a further delay.   Had the SMRC recommended a lessening of the ten year period of the relevant paragraph to the RMA the situation would have been quite different, for then there may have been some indication that the RMA review could have assisted his case.   Moreover, there is no clear indication that the matter will be resolved by the RMA by February/March 1998.   All that the Tribunal has before it at this stage is an informal indication provided by the RMA to the parties, being a date before which it will not be considered.

13. The Tribunal also considered the question as to what the Applicant had to lose in not being able to pursue the issues under the head of this application if eventually there was an amendment to the Statement of Principles in his favour. As it stands the Applicant stands to lose the benefit of the effective date, 21 September 1994, from which any pension is payable. The Tribunal was assured that an earnings related pension was not at issue. The Applicant has been assessed by the Veterans’ Review Board as being entitled to a continuation of payment of pension at 70 percent of the General Rate, even though its assessment in respect of his war caused conditions was at 40 percent (see Revocation of the Guide to the Assessment of Rates of Veterans’ Pensions - Instrument No. 6 of 1994). From the evidence in the T. documents and based on the VRB assessment, it is possible that even if the Applicant was to succeed in the matter under the head of this application, the margin by which his pension assessment would have to increase consequentially before it had any material effect on the rate he is receiving already is quite significant.

14.      In all the circumstances of this case, and taking into account the test of “unreasonable delay” as defined by the Federal Court in Thornton, the Tribunal refuses to allow further delay in this application proceeding to hearing.”

REASONING
Mr Beale does not seek to challenge the holding by Heerey J in Deledio v Repatriation Commission (1997) 25 AAR 396 that an SoP has no function in relation to the proof or disproof (under s 120 (1)) of the particular facts of a case and that its function is limited to “prescribing a medical-scientific standard with which a hypothesis must be consistent - so that the SoP can ‘uphold’ the hypothesis” (at 411-412). Heerey J added:

“In the words of the Minister (Hansard, 9 June 1994, p 1808) the SoPs were intended to ‘provide the template within which the individual claims will be determined’. Put another way, the SoP is a subset of proved (...) or known (...) scientific fact. Where an SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact.” (Ibid)

Mr Beale’s submissions proceed on the basis that it is not necessary for Mr Beale to challenge in this proceeding the characterisation of an SoP by Tamberlin J in Vietnam Veterans Association of NSW v Cohen (1996) 70 FCR 419 at 430-431 as “legislative”. The starting point of Mr Beale’s submission is the rights given by the VE Act to persons placed as he is to have an SoP reviewed, and the end point of his submission is that those rights would be rendered ineffective if such a person’s claim for a pension were to be determined before a pending investigation by the RMA by way of review of the contents of an existing SoP came to an end.

Mr Beale’s submission directs attention to the rights given to him by the VE Act as amended. As noted earlier, that Act gives, among others, “a person eligible to make a claim under Part II” a right to ask the RMA, relevantly, to review the contents of a SoPs in force under Part XIA (s 196E (1)). Subject to an exception not presently relevant, where such a request has been made, the RMA must carry out an investigation. If, after doing so, it is of various specified views, it must do certain things. In particular, if it is of the view that there is a new body of sound medical, scientific evidence available that, together with that previously considered by it, justifies the amendment of an SoP already determined, it must make a determination amending the existing SoP, or revoke that one and determine a new one.

Within three months after the RMA has made, amended or last amended an SoP, a claimant for a pension is entitled to ask the SMRC to review the contents of the SoP (s 196Y (1)). Where such a request is made, and the period within which the SoP may be disallowed under s 48 of the Acts Interpretation Act 1901 has ended without its being disallowed, the SMRC must carry out a review of all the information that was available to the RMA (s 196W (2), (3)). If, after carrying out the review, the SMRC is of a certain view, it must make a declaration in writing stating its views, setting out the evidence in support, and directing the RMA to amend the SoP or to determine one, as the case may be, in accordance with the SMRC’s directions, or remitting the matter for reconsideration in accordance with any directions or recommendations of the SMRC (s 196W (4)).

Parts IIA and IIB of the VE Act give other rights to such claimants as Mr Beale, depending on the nature of the status quo ante, the nature of the request made, and the nature of any existing decision of the RMA which the claimant seeks to overcome.

The following paragraphs of the submissions of Mr Colborne, counsel for Mr Beale, express succinctly his client’s case:

19.It is implicit in the legislative scheme, introduced in 1994, that the Repatriation Commission, and the bodies that stand in its shoes, cannot determine a claim when an issue on which it turns is before the Repatriation Medical Authority or Specialist Medical Review Council.   This is because -

(a)the determination of claims now depends on findings by 2 separate review systems;

(b)claimants have been given comprehensive rights of review in respect of the findings made in each system;

(c)a claimant’s right to a review of a Statement of Principles can only have substance in the context of a claim for a  pension;

(d)the findings of the Repatriation Commission, and the bodies that stand in its shoes, must be in accordance with the relevant Statement of Principles.

20.If the Repatriation Commission proceeds to make a decision, when a claimant’s case depended on the outcome of an outstanding review by the Authority or Council, then the utility of a claimant’s rights to have a Statement of Principles reviewed would be destroyed or would operate capriciously.  It would depend on whether the review was completed before the Commission made its decision.  Parliament cannot have intended such a result.

21.Eligibility for pension and other benefits often depends on the date of lodgment of a claim.  In particular, eligibility for the Special Rate and Intermediate Rate pensions can depend on whether the claimant still satisfies the criteria at the date of application.  It would be absurd if a claimant was denied eligibility for one of the higher rates of pension merely because the Commission made a decision before a review of a Statement of Principles was completed.

22.I could find nothing in the Second Reading Speech or Explanatory Memorandum that deals with how, if at all, the 2 independent review systems should synchronise their operations to ensure all the issues raised by a claim are addressed and determined.  The only legislative indication is provided by s.120A(2) and 120B(2).  They prevent the Commission from determining a claim where the Repatriation Medical Authority has commenced an investigation but not determined a Statement of Principles under s 196(A)(2) or 196B(2) or declared that it did not propose to make one.   Sections 196A(2) or 196B(2) refer to the initial investigation of a particular kind of injury, disease or death.

23.The absence of any statutory reference to what the Commission should do when a Statement of Principles is being reviewed merely means that the issue has been left to be determined in accordance with the requirements of the legislative scheme.  There are obvious reasons why there is no blanket statutory prohibition on deciding claims when a review of the relevant Statement of Principles is in progress.  The review may be confined to an issue that is not in dispute, the claim may be bound to fail, regardless of any amendment to the Statement of Principles, or the claimant may elect to have the matter dealt with on the existing Statement of Principles.”

Notwithstanding the attractive manner in which counsel put Mr Beale’s case, I do not accept the submission.

In my opinion, it is not implicit in the rights given to Mr Beale in Parts IIA and IIB that he is entitled to have the benefit both of the earlier date of receipt by the Department of his claim for a pension and of the ultimate result of a request made by him in exercise of the rights given to him by the newly introduced Parts IIA and IIB. Another way of expressing the position is to say that he is able to exercise fully the rights given to him by Parts IIA and IIB without having made a claim under Part II: the right to claim a pension under Part II and the rights of request and their sequelae under Parts IIA and IIB are independent of each other. In particular, it is possible for Mr Beale to exercise his rights under Parts IIA and IIB and to defer making a claim for a pension under Part II until after the result is known.

The legislative nature of an SoP and the express provisions of ss 120A (2) and 120B (2) go far to confirm that those rights are not intended to lead to the general result that a claim for a pension is not to be determined by the Commission or those standing in its shoes until a pending request for review of the contents of an SoP has been resolved. By providing that once the RMA has given notice under s 196G of its intention to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission must not determine a relevant claim until either the RMA has determined an SoP in respect of an injury, disease or death of the relevant kind or declared that it does not propose to do so, ss 120A (2) and 120B (2) recognise that where an initial SoP has already been determined, the Commission and those who stand in its shoes are not to refrain from determining a relevant claim merely because an investigation by way of review of the contents of an already existing SoP has been requested by a claimant or is otherwise pending.

The view to which I have come is strongly supported by the following extract from the Explanatory Memorandum:

“New subsection 120A(2) provides that if the Repatriation Medical Authority has given notice that it intends to investigate a type of injury, disease or death, the Commission is not to determine a claim in respect of an injury, disease or death of that kind, unless the Authority has already made a Statement of Principles in respect of that kind of injury, disease or death, or the Authority has declared that it does not propose to make such a Statement of Principles, or until the Authority makes a Statement of Principles in respect of that kind of injury, disease or death, or the Authority has declared that it does not propose to make such a Statement of Principles.

New subsection 120A(3) provides that an hypothesis will be reasonable only if it is upheld by a Statement of Principles determined by the Authority under new subsection 196B(2) or a determination of the Commission under new subsection 180A(2).  In other words, an hypothesis will be reasonable only if there is a Statement of Principles (or determination) relating to the relevant type of injury, disease or death, and the hypothesis contains at least the minimum factors stated to be required to exist and to be related to the person’s service by a Statement of Principles (or determination) for that type of injury, disease or death.

Where the operation of the new subsection 120A(2) does not prevent the Commission from determining a claim, new subsection 120A(4) will enable the Commission to determine a claim where the Authority has neither determined a Statement of Principles nor declared that it does not propose to do so in respect of a kind of injury, disease or death relevant to the claim.  Only in such circumstances, will new subsection 120A(3) not apply.”

The words emphasised in the first paragraph set out above make it clear that where the RMA “has already made a Statement of Principles”, the Commission and those standing in its shoes are to be at liberty to determine a relevant claim.

In these circumstances, it will not be procedural unfairness or a failure to take into account a relevant consideration, for the AAT to determine Mr Beale’s application before it on 17 March 1998 on the footing of the three existing SoPs mentioned earlier, and, in particular, Statement of Principles number 352 of 1995. It cannot be a procedural unfairness or a failure to take into account a relevant consideration for a decision maker to decide a matter by reference to the legislation incorporating the relevant SoP as it stands at the time.

Mr Beale’s submissions also suggest an attack on the AAT’s exercise of discretion , by reason of its having taken into account two irrelevant considerations: first, the SMRC’s reasons for making a recommendation to the RMA that it review the relevant SoP, which the AAT said contained “nothing ... that gives any particular joy to the Applicant”; and second, “what the Applicant had to lose in not being able to pursue the issues under the head of this application if eventually there was an amendment to the Statement of Principles”. In relation to the latter, the AAT said, “it is possible that even if the Applicant was to succeed in the matter under the head of this application, the margin by which his pension assessment would have to increase consequentially before it had any material effect on the rate he is receiving already is quite significant”.

The Commission submits that these considerations were relevant to the exercise of the AAT’s discretion. In relation to the former, it submits:

“The prospects of an early and favourable outcome of the RMA’s review would be relevant to the exercise of its discretion further to adjourn the hearing of the application for review. The reasons of the SMRC were properly seen as providing some indication of those prospects”.

In relation to the second consideration, the Commission submits that the likely practical effect on the Applicant of the AAT’s refusal of an adjournment was also a relevant consideration.

I have already held that the VE Act did not expressly or impliedly require the AAT to adjourn the hearing of Mr Beale’s application until the RMA’s review was complete. Further, in my opinion Senior Member Lewis’s discretion under s 33(1)(a) of the AAT Act is not shown to have miscarried. Mr Beale’s notice of appeal was received by the AAT on 4 December 1995. Hence, by the time the matter came before Senior Member Lewis, it had been on foot for nearly 2 years. Without more, that would appear to constitute unreasonable delay within the meaning of that term as explained by Fisher J in Thornton v Repatriation Commission (1981) 52 FLR 285. In those circumstances, the prospects of a favourable outcome for Mr Beale and the effect on him of a refusal to grant an adjournment were considerations relevant to be taken into account on his application for adjournment.

CONCLUSION
The application should be dismissed with costs.

I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren

Associate:

Dated:             16 March 1998

Counsel for the Applicant: Mr C Colborne
Solicitor for the Applicant: Legal Aid Commission of New South Wales
Counsel for the Respondent: Mr P Hanks
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 6 March 1998
Date of Judgment: 16 March 1998
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Cases Citing This Decision

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Trezona v Australian Securities & Investments Commission [2004] FCA 1389