Boys v Repatriation Commission (Veterans' Entitlements)

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FEDERAL COURT OF AUSTRALIA

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

Appeal from: Boys and Repatriation Commission (Veterans’ Entitlements) [2020] AATA 2116
File number(s): VID 528 of 2020
Judgment of: O'CALLAGHAN J
Date of judgment: 23 March 2022
Catchwords: DEFENCE AND WAR – veterans’ affairs – appeal from decision of the Administrative Appeals Tribunal affirming decision of the Veterans’ Review Board, affirming decision of the Repatriation Commission finding that the appellant’s cervical spondylosis was not related to service and rejecting the appellant’s application for assessment of disability pension at the special rate under the Veterans’ Entitlements Act 1986 (Cth) – where respondent accepted the Administrative Appeals Tribunal made errors of law – where decision clearly correct on the material before it – appeal dismissed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Veterans’ Entitlements Act 1986 (Cth) ss 24, 24(1)(c), 68, 70, 70(1), 70(5), 70(5)(a), 70(5)(b), 120, 120(4),120A(2), 120B, 120B(2), 120B(3), 196B, 196B(3), 196B(8), 196B(14), 196B(14)(b), 196B(14)(c)

Statement of Principles concerning cervical spondylosis No. 34 of 2005 (Cth)

Statement of Principles concerning cervical spondylosis No. 66 of 2014 (Cth)

Statement of Principles concerning cervical spondylosis No. 67 of 2014 (Cth) cll 3, 3(b), 3(b)(ii), 6, 6(f)
Cases cited:

Gorton v Repatriation Commission [2001] FCA 286; (2001) 63 ALD 723

Hill v Repatriation Commission [2005] FCAFC 23; (2005) 218 ALR 251

Lees vRepatriation Commission (2002) 125 FCR 331

Repatriation Commission v Gorton (2001) 110 FCR 321

Repatriation Commission v Gosewinckel [1999] FCA 1273; (1999) 59 ALD 690

Repatriation Commission v Keeley (2000) 98 FCR 108

Repatriation Commission v Thompson (2001) 107 FCR 235
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 53
Date of hearing: 7 March 2022
Solicitor for the Appellant: Mr D De Marchi of De Marchi & Associates
Counsel for the Respondent: Ms ZE Maud
Solicitor for the Respondent: Moray & Agnew

ORDERS

VID 528 of 2020
BETWEEN:

DALE BOYS
Appellant
AND:

REPATRIATION COMMISSION (VETERANS' ENTITLEMENTS)
Respondent

ORDER MADE BY:

O'CALLAGHAN J

DATE OF ORDER:

23 MARCH 2022

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…

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Details
Case
[2022] FCA 257
Decision Date

CaseChat Overview and Summary

The appellant, Mr Boys, challenged the decision of the Administrative Appeals Tribunal (AAT) which affirmed the decision of the Veterans’ Review Board, which in turn affirmed the decision of the Repatriation Commission. The dispute was centred on whether Mr Boys’ cervical spondylosis was related to his service, thereby justifying an assessment of his disability pension at the special rate under the Veterans’ Entitlements Act 1986 (Cth). The Repatriation Commission had decided that the condition was not related to service, and therefore Mr Boys was not eligible for a disability pension at the special rate.

The central legal issue was whether the appellant’s cervical spondylosis was related to his service, as defined in section 196B(14) of the Veterans’ Entitlements Act 1986 (Cth). Specifically, it was necessary to determine whether the condition arose out of or was attributable to his service, or if it resulted from an accident that occurred while he was travelling to or from a place of duty. The tribunal's decision hinged on whether the condition was linked to the three motor accidents Mr Boys experienced during his service, which were known to have affected his neck.

The Federal Court found that while the tribunal had indeed made fundamental errors in applying the correct Statement of Principles, the appellant’s case would inevitably fail if remitted for rehearing. The court noted that Mr Boys did not provide any imaging evidence of degenerative change within the meaning of clause 3(b)(ii) of the relevant Statement of Principles, which was a necessary condition for making any finding about the existence of the relevant condition. Given that the first imaging evidence of degenerative change was produced in June 2014, and the motor accidents occurred in 1981, 1982, and 1983, the condition could not have been related to the service. Therefore, despite the tribunal's errors, the outcome would remain unchanged on a rehearing.

The court dismissed the appeal and ordered the parties to file any written submissions on the question of costs within seven days.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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 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. 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. 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 vRepatriation 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). 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. 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. 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. 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.