Brown and Repatriation Commission
[2000] AATA 1118
•19 December 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1118
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N1998/122
VETERANS' APPEALS DIVISION )
Re Leonard Keith BROWN
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs M T Lewis, Senior Member
Date19 December 2000
PlaceSydney
Decision The Tribunal – 1. sets aside the decision under review, being a decision of a delegate of the Repatriation Commission ("the Respondent") dated 25 May 1995; and 2 in substitution therefor decides that the condition of malignant neoplasm of the prostate suffered by Leonard Brown ("the Applicant") is a war-caused condition pursuant to s9 of the Veterans' Entitlements Act 1986 with effect on and from 2 August 1997; and 3. remits the matter to the Respondent to assess the rate of pension payable to the Applicant in respect of all his war-caused disabilities.
..............................................
M T Lewis
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – entitlement – whether malignant neoplasm of prostate war-caused – operational service – Statement of Principles applied – whether reasonable hypothesis that war service increased animal fat consumption by 40 per cent for 20 years before clinical onset of condition – whether hypothesis disproved beyond reasonable doubt
STATUTORY INTERPRETATION – presumption against retrospective operation of legislation – preservation of accrued rights – Statement of Principles at time of primary decision revoked and replaced while review of decision pending – recent Statement of Principles more beneficial – whether Tribunal obliged to apply SoP in place at time of primary decision - whether Applicant could rely on recent Instrument – nature of protection afforded by s50 Acts Interpretation Act – whether accrued right of applicant required protection - whether contrary intention expressed
Veteran's Entitlements Act 1986 –ss 120(1), 120(3), 120A
Acts Interpretation Act 1901 – ss 8, 50
Statements of Principles – Instrument No95 of 1995. No 84 of 1999
Commonwealth of Australia v Verwayen (1990) 170 CLR 394
Doro v Victorian Railways Commissioners [1960] VR 84
East v Repatriation Commission (1987) 16 FCR 517
Huddleston v Commissioner of Railways (1951) SR(NSW) 226
JR Exports Pty Ltd v Australian Trade Commission (1987) 14 FCR 161
Re Olsen and Repatriation Commission [2000] AATA 909
Re Reading and Repatriation Commission [2000] AATA 841
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley (2000) 98 FCR 108
Re Ryan and Repatriation Commission [2000] AATA 849
Young v Adams [1898] AC 469
Re Zoarder and Secretary, Department of Social Security (1998) 26 AAR 342
REASONS FOR DECISION
Mrs M T Lewis, Senior Member
This is an application for review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 25 May 1995 which rejected a claim made by Leonard Keith Brown ("the Applicant") for malignant neoplasm of the prostate. The Veterans' Review Board ("the VRB") affirmed that decision on 6 February 1997. The Applicant lodged an application for review by this Tribunal on 2 February 1998, which was more than three months but less than twelve months after notification of the VRB decision. An extension of time in which to lodge the application was granted by the Tribunal.
The Tribunal had before it the documents produced by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and transcript of the first day of the Tribunal hearing on 21 August 1999 (T2). The Applicant and his wife gave oral evidence on the first day of the hearing from their home because of the poor state of health of the Applicant. Dr R Gertler gave oral evidence, called by the Applicant. The following documents were tendered as evidence on behalf of the Applicant –
Statement of the Applicant dated 1 July 1999 (exhibit A);
Extract of Monograph entitled Clinical Problems of War by Allan S Walker (exhibit B);
Report of Dr R Gertler, consultant psychiatrist, dated 24 July 2000 (exhibit C);
Reports of Ms J K Heyman, consultant dietician-nutritionist, dated 13 March 2000 (exhibit D) and 27 October 2000 (exhibitE).
The following documents were tendered as evidence on behalf of the Respondent -
Report of Dr R English AO, dietician, dated August 1998 (exhibit 1);
Report of Mr W Friderich, consultant dietician, dated 1 December 1999 with letter of instruction from the Respondent dated 18 November 1999 (exhibit 2).
legislation and applicable statement of principles
The Applicant rendered operational service in the Australian Army from 20 May 1940 to 7 April 1945. The standard of proof to be applied to that period of service is found in ss120(1) and 120(3) of the Veterans' Entitlements Act 1986 ("the Act"). This requires the Tribunal to determine, with respect to the period of the Applicant's operational service, that his malignant neoplasm of the prostate was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the condition was war-caused, if after consideration of the whole of the material, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the condition with the circumstances of the Applicant's service.
As the Applicant lodged a claim after 1 June 1994, pursuant to s 120A of the Act, the Tribunal is also required to apply the relevant Statement of Principles in determining this matter. The Statement of Principles concerning Malignant Neoplasm of the Prostate that was in place at the time of the primary decision is Instrument No.95 of 1995. That Statement of Principles was amended by Instrument No.191 of 1996 and the Tribunal notes that both those Statements of Principles have since been revoked by Instrument No.84 of 1999.
There is dispute between the parties as to which Statement of Principles is to be applied by this Tribunal for the purposes of the current proceedings. The Applicant did not wish to rely on his accrued right to have the matter determined pursuant to the Statement of Principles in place at the time of the primary decision. Rather, it was contended for the Applicant that Instrument No. 84 of 1999 could and was being relied upon as it was more beneficial to the Applicant. The Applicant relies on factor 5(c) which provides insofar as relevant –
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate…with the circumstances of a person's relevant service are:
…
(c) increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate;It is the Applicant's case that prior to his service, his diet typified an average diet without a lot of animal fats, but that during service he developed a habit or preference for food high in animal fat which continued until the onset of his prostate cancer. It is the Applicant's contention that the habit of taking a high fat diet after service was materially contributed to by the scrub typhus he contracted on service. This resulted in excessive weight loss and required a high fat diet to regain weight. Additionally, it was submitted that he maintained a high fat diet because of his war-caused anxiety state.
It was the Respondent's contention that on the authority of Repatriation Commission v Keeley (2000) 98 FCR 108, the Applicant must rely on Instrument No. 95 of 1995, being the Statement of Principles that was in place at the time of the primary decision. That Instrument does not contain the factor relating to high fat diet, and since the Applicant does not meet the other factors in that Instrument, it is the Respondent's case that a reasonable hypothesis has not been raised to link the Applicant's condition with the circumstances of his service.
Essentially, the success of the Applicant's claim depends on whether it is essential that the Tribunal applies the Statement of Principles that existed at the time the primary decision was made. The Tribunal will return to that issue later, in the context of the legislation and case law on point.
evidence
Applicant's health and diet prior to serviceThe Applicant said he suffered from "yellow jaundice" when aged 11 to 13 years. He was under medical supervision for two years and he said he was advised to eat glucose and avoid eating fatty foods. He said that prior to his Army service he did not change his diet after his jaundice resolved.
Prior to service, the Applicant said his breakfast comprised a bowl of porridge made on water (with ¼ cup milk) and two to three slices of toast with golden syrup but no butter. He said he was not permitted to eat butter because he had "yellow jaundice". His standard lunch was sandwiches (without butter) with German sausage and pickles. However after he contracted jaundice he was advised to eat as much lettuce with glucose as possible, and so he ate salad sandwiches. He started work at the age of 14 years, and recalled eating salad sandwiches then. He said that at about the age of 18 or 19 years he started eating corned beef sandwiches without the fat.
The Applicant said that prior to service he normally ate stew with vegetables for dinner. He said that the fat film that appeared on the surface was always scooped off because he did not like it. At other times he ate various other meat dishes including boiled corned beef, lamb and pork chops, all with vegetables. He said that he did not eat cakes or biscuits or confectionary before service.
Mrs Brown said she met the Applicant before he enlisted. She recalled eating homemade shepherds pie with the Applicant at his home. She was not aware whether he ate fatty foods before the war. She said, in response to a direct question, that when they went on picnics the Applicant ate butter on his sandwiches. She was aware that he had suffered from "yellow jaundice" as a child. The Tribunal concluded from her presentation that she had very little knowledge of the Veteran's pre-war diet.
Applicant's diet on serviceThe Applicant enlisted in the Army at the age of 20 years. He served in Australia, the Middle East and New Guinea. While on service in Australia the Applicant worked as a guard and kitchen hand. For breakfast he said he ate porridge topped with milk, and tinned herrings or jam on toast. He said by this stage he was eating butter on his toast because he "developed a liking for it" with marmalade. He also said he "developed a passion for it". He said that at first he applied minimal amounts sufficient to coat the surface of the toast, but later he applied more, equivalent to about 1½ teaspoons. He also recalled eating "bully beef" for breakfast.
For lunch, he said he ate herrings and bully beef served with mashed potato (with butter), and prior to a route march he ate stew with "plenty of bread and butter". He also recalled eating salad occasionally and tinned peaches with milk custard.
The Applicant said the standard dinner in Australian camps comprised lamb chops, stew or bully beef. He said the stew contained fatty meat. He said he started eating the fat on meat while he was training, soon after enlistment, because he "started to develop a liking for it"; he said "the fat started to taste good". The Applicant was on guard duty every second night, when he had tea and biscuits. A tin mug of tea with milk was the standard drink served with all Army meals. The Applicant said he received and ate additional rations of bread and butter, custard, peaches and cheese at least every second day when he worked in the kitchen.
The Applicant spent approximately two years in the Middle East. He travelled to and from Australia to the Middle East by ship and ate food prepared by the ship's crew, which was mainly stew. His first camp was in mess tents at Deir Sumeid for a few months. He worked as a driver and helped cook for the gun crew who considered his cooking too fatty. He recalled occasionally cooking a meal in butter with biscuits and bully beef accompanied with an egg. Otherwise, the meals were similar to the ones he ate in the Army in Australia.
The Applicant was then sent to Mersa Matruh where he camped in "dugouts". They received English food rations for two people once a day that consisted mainly of tinned meals of bully beef, English sausages, cheese, butter, biscuits, and ½ doz. cans of condensed milk. Occasionally he had tinned fruit.
The Applicant served in New Guinea from April to September 1943. He was then repatriated to Australia after having contracted scrub typhus and malaria. His diet in New Guinea consisted mainly of Australian rations of tinned bully beef, meat and vegetables. He said the rations were fatty. He recalled eating tinned chicken and ice-cream two to three times a week from the Americans also stationed there.
On return to Australia the Applicant was hospitalised for some time. (Service documents indicate that he was evacuated with scrub typhus on 14 September 1943 and discharged from hospital on leave on 28 March 1944. During that time on 19 February 1944he was married. He was readmitted to hospital with pneumonia on 1 May 1944 and did not return to his Unit until 7 June 1944). The Applicant could not recall the type of food he ate in hospital, although he did remember being given eggnog to drink "to fatten me up a bit" as he had lost a lot of weight. On discharge from hospital he said he went back to "ordinary Army food".
Applicant's diet post-serviceAfter the Applicant married he and his wife lived with his in-laws for about two years. During that time, he was fed bacon, pork sausages and dumplings, corned beef, lamb and pork chops, and fried bread dumplings. This evidence is consistent with the Applicant's statement dated 1 July 1999 (exhibit 1). He said he was given these foods so that he could put on weight. He noted that at the time the civilian population was still subject to food rationing.
The Applicant said he has "looked for fatty foods ever since" he was discharged from the Army. His diet soon after his discharge was cornflakes (with milk) and 2 slices of grilled cheese on toast for breakfast. He had biscuits and a cream cake for morning tea, and lunch consisted of sandwiches (with butter) with cheese and various cold meats, including silverside and German sausage. He had a biscuit and a cup of tea with milk for afternoon tea. Dinner normally consisted of barbecued/grilled steak with fatty pork sausages and fried pork chops. He also ate apple pie and ice-cream for dessert on occasions. Sometimes he bought fish and chips to eat.
Mrs Brown said that ever since the Applicant left the Army she usually prepared fried foods and baked dinners. He also ate fried bacon and chips.
medical evidenceDr Gertler is the director of an eating disorder clinic at Royal Prince Alfred Hospital. He prepared a report dated 24 July 2000 (exhibit C), outlining the following history obtained from the Applicant about his lifetime eating habits -
Prior to serving in the Army Mr Brown's diet had been very low in animal fat content. This had occurred on the basis of childhood factors notably a less than affluent upbringing and the development at the age of eleven, of yellow jaundice or what is now termed infectious hepatitis. He was advised, particularly after the development of the jaundice, that he should have as little fat in his diet as possible, and even after some two years when the jaundice had cleared completely, Mr Brown continued to avoid animal fat in his diet and to have a preference for salads and similar foods. When he entered the army service in 1940, Mr Brown was subjected to a much higher animal fat content diet than he was used to. Initially he can recall suffering from diarrhoea for some months but gradually this settled and he became used to the diet, in fact preferring it to a diet high in sweet food.
During his period of service as well, Mr Brown was subjected to life-threatening situations and became anxious. He found that eating food high in animal fat content would help with his anxiety.
Following his severe illness and subsequent discharge from the Army in 1945 Mr Brown was encouraged to eat a high fat content diet in order to put on weight. This was reinforced by his treating doctors at the time and continued by his mother-in-law, with whom he and his wife first lived after he had left the Army.
His preference for fatty food continued unabated for many years. Even now, he continues to have a preference for fatty food though he does try and eat a more healthy diet.Dr Gertler considered that the Applicant's level of animal fat consumption increased by more than 40 percent during his war service compared with the level prior to service, and that after service it has remained at a consistent level for a period in excess of 20 years.
Dr Gertler considered that it was reasonable to suggest that the Applicant's diet during service contributed to his food preference post-service and he noted that the Applicant's anxiety condition also contributed to his food preference post-service. In his oral evidence, Dr Gertler explained that it was quite common for persons who suffered from an anxiety state to deal with that condition by way of eating, either in the form of overeating, binge eating or even not eating at all, depending on the level of anxiety. He noted that although anxious people tended to eat sweet rather than fatty foods it was nonetheless possible to prefer fatty foods, as done by the Applicant. He explained that a psychological reinforcement existed in the connection between the Applicant eating fatty foods and his anxiety.
Dr Gertler acknowledged that if the high animal fat diet reduced the effects of anxiety for the Applicant, his anxiety would have been under control as long as there were no other factors influencing the levels of his anxiety. He also acknowledged that the Applicant's job as a courier at Telecom would have controlled his weight.
On the basis of documentary evidence provided by the Respondent to Mr Friderich, consultant dietician, he provided a report dated 1 December 1999 (exhibit 2) in which he noted that the Applicant's diet prior to service correlated with his weight and stated low calorie intake. However he considered that the diet reported by the Applicant was an "underestimation" because of the significant difference between the reported intake and the estimated dietary requirement. Mr Friderich noted that the Applicant suffered from haemorrhoids, indicating that his diet lacked fibre. However he noted that this did not correlate with the reported diet following Army service, when the Applicant's fibre intake of 26g per day based on the history he gave was only 4g lower than the recommended intake. Mr Friderich considered that the high reported fibre intake might indicate an overestimation of total food intake, and that could account for the difference between reported energy intake and estimated requirements. He opined that a low fibre intake might indicate a poorly balanced diet.
Mr Friderich then said –
Based on a prudent diet, the recommended total fat intake is 30 grams per day. Saturated fat intake should be limited to less than 10 grams per day. The expected weight gain experienced by an average 70 kg male in increasing saturated fat consumption to 70 grams per day (as per Statement of Principles 84 of 1999), whilst not altering other nutrients in the diet or physical activity, would be 1.5 kg per week, or 78 kg per year. This assumes that the diet consumed prior to changing the saturated fat content of the diet met all energy requirements.
Based on Mr Brown's alleged increased fat consumption, he would meet the requirements of the Statement of Principles concerning Malignant Neoplasm of the Prostate 5(c) if he had followed the alleged diet for 20 years ….
Mr Friderich concluded –
From the diet history provided by Mr Brown, it does appear that fat intake increased during military service. However, the extent of the increase following military service appears to be an overestimation based on the increased energy content of the diet. There was also no measured weight gain over the period of increased calorie ingestion. The weight gain experienced does not correlate with the expected weight gain Mr Brown should have experienced if the reported diet was followed.
Ms Heyman, consultant dietician-nutritionist, in her report of 27 October 2000 (exhibit E), analysed information she obtained from the Applicant about the animal fat content of his diet. This information had been consistent with his oral evidence. She estimated the Applicant's total energy intake (in kcals) and compared her results with those obtained by Mr Friderich (exhibit 2), viz. –
Diet Heyman calculations Friderich calculations
Childhood/Pre-service diet 2,156 1,460
Service Diet N/A 2,936
Discharge Diet 2,300 3,031
Current Diet 1,755 N/A
Ms Heyman commented that the difference in the respective calculations were due to; differing amounts of information available regarding the Applicant's eating pattern; the methods employed and assumptions made. She highlighted that her results considered 'total animal fat intake' while Mr Friderich's calculations took into account only 'saturated fat'. However both had agreed on the increased trend in fat consumption over time in the Applicant's diet, viz. low fat diet in childhood, high fat diet during Army service and current diet which continues to be high in fat but not to the level it was during the Army.
Ms Heyman in her earlier report of 13 March 2000 (exhibit D) noted that the Applicant's animal fat intake prior to enlistment was at 39.55g per day. During service he had 100.5g animal fat per day at Ingleburn, 117g animal fat per day in the Middle East and 113.2g animal fat per day in New Guinea. This was an increase of 217 percent on his pre-service diet. His animal fat intake on discharge was between 96.8 to 106.37g per day and his current diet remains at about 95.71g animal fat per day. Ms Heyman noted that the Applicant's animal fat intake was approximately 17 percent of total energy in childhood, 42 percent of total energy on discharge and about 44 percent of total energy in his current diet. His total fat intake would have been slightly higher as even in childhood he would have consumed a small amount of fat.
The following record (exhibit 2) of the Applicant's weight between 1940 and 1999 has been extracted from files held by the Respondent –
Date Age Weight (kg)
20.08.40 (T3) 20 57
07.12.44 25 62
11.11.48 29 63.5
04.08.52 32 63.5
30.11.64 45 67
22.12.64 45 65.5
06.05.80 68 68
10.10.80 68 67
08.02.95 75 70
03.05.95 75 63.5
03.02.99 79 61.6
Ms Heyman disagreed with Mr Friderich's opinion that the Applicant's weight gain did not correlate with that expected on the basis of the diet that he alleged. Dr Gertler also disagreed on this issue. Similarly, Dr Gertler considered that Mr Friderich's opinion that the Applicant should have continued to gain weight at a fairly high level for an indefinite period while he ate fatty foods, did not take into consideration such factors as the genetics and physical activity. Dr Gertler was of the view that the Applicant's "set point" (mechanism whereby the body maintains a fairly stable weight over a long period) of approximately 10 stone was largely determined by genetics, so that it was possible for his weight to stay relatively static despite excessive calorie intake.
submissions
Which Statement of Principles to be applied?The Applicant relied upon Re Olsen and Repatriation Commission [2000] AATA 909, and Re Zoarder and Secretary, Department of Social Security (1998) 26 AAR 342. It was submitted for the Applicant that the most recent Statement of Principles, being more beneficial to the Applicant, was the Instrument to be applied by the Tribunal. This would be rather than those in place at the time of the primary decision.
It was submitted that s8 (and s50) of the Acts Interpretation Act 1901 ("the Interpretation Act") was not intended to protect any alleged "right" that the Respondent had to have the Statement of Principles applied that was in force at the date of the primary decision; Re Zoarder (supra). The Tribunal was referred to a decision of the Full Court of the New South Wales Supreme Court in Huddleston v Commissioner of Railways (1951) SR(NSW) 226 and to a decision of a single judge of the Victorian Supreme Court in Doro v Victorian Railways Commissioners [1960] VR 84. Both of them, it was submitted for the Applicant, refused to characterise former statutory limitations on the extent of damages recoverable against a government agency which were raised during the course of pending legal proceedings as "rights" to which provisions of the equivalent State interpretations legislation applied. It was submitted that all three cases were analogous and accordingly the reasoning in those decisions should be applied to the Applicant's case.
In any event, it was submitted that s50 (and s8) of the Interpretation Act was a presumption, and not a rule of interpretation, that depended on the context of the legislation; Doro v Victorian Railways Commissioners (supra). It was submitted that such a presumption was based on concepts of "justice" and "fairness"; that it would "shock our sense of justice" (Young v Adams [1898] AC 469 at 476 per Lord Watson) for a party to be deprived of the benefit of a vested right during pending legal proceedings; JR Exports Pty Ltd v Australian Trade Commission (1987) 14 FCR 161 at 163. Counsel for the Applicant highlighted that the emphasis on "fairness" was also referred to in the Full Federal Court decision in Repatriation Commission v Keeley (2000) 98 FCR 108 where it was noted (at 123) –
With regard to beneficial legislation such as the Act, it may be assumed that a construction of substantive provisions least likely to work or cause unfairness in result is to be preferred.
It was submitted that the current litigation concerned the enforcement of a public right in legislation that was intended to be interpreted beneficially so as to entitle the Applicant to rely upon the more favourable Statement of Principles.
The Respondent submitted that Keeley (supra) supported the proposition that the Statement of Principles to be applied by the Tribunal, was that in force at the date of the primary decision. The Respondent submitted that s8 of the Interpretation Act preserved the rights, privileges, obligations or liabilities acquired, accrued or incurred under any Act so repealed, unless there is a contrary intention displacing those circumstances. Where a later Statement of Principles was enacted and it did not indicate a contrary intention to displace the earlier Statement of Principles for the purpose of determining the Applicant's claim, it was submitted the later Instrument was irrelevant to the application. It was submitted that this contention was supported by s196B(13) of the Act which stated that a Statement of Principles had a prospective operation from the date of gazettal.
It was submitted that the right which accrued to the Applicant was the right to have the reviewable decision reviewed according to the law as it stood when the right accrued, and unless a contrary intention was disclosed it was to be presumed that accrued rights were to be determined as such; Re Ryan and Repatriation Commission [2000] AATA 849. Similarly, it was submitted that unless a contrary intention was disclosed, s8 of the Interpretation Act, along with preserving the rights of the Applicant, also protected the obligations or liabilities acquired by the Respondent under any repealed legislation; Re Reading and Repatriation Commission [2000] AATA 841. It was submitted for the Respondent that the notion of beneficial legislation was relevant only where legal rights and obligations were determined according to the law.
It was submitted for the Applicant that if the application of the Statement of Principles in force at the date of the primary decision was a "right" vested in the Applicant, then he could waive that right; Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 425 per Brennan J, 468-9 per Toohey J, 482-3 and 486-7 per Gaudron J. It was the Respondent's submission that the waiver of an accrued right by the Applicant was insufficient to displace the obligation of the Respondent to review the decision in light of the law as it stood at the time of the primary decision.
Service ConnectionIt was submitted for the Applicant that there was an increase in animal fat consumption on service of the requisite amount in accordance with the Statement of Principles, when compared with the Applicant's pre-service diet. This was also conceded for the Respondent.
On the evidence of Dr Gertler, it was submitted for the Applicant that his accepted disability of an anxiety state sustained his high intake of animal fat after service and therefore the service connection with his condition was established.
The Applicant's high level of post-service animal fat intake was doubted by the Respondent's representative. It was submitted that there was a multitude of factors besides anxiety that explained why the Applicant continued to eat the foods that he did. One fact was that after he left the Army he was able to afford to eat the foods to which he had become accustomed on service as he enjoyed a slightly higher socioeconomic status than he had prior to the war. It was submitted for the Respondent that a personal preference for fatty foods after service, to continue the habit, was not sufficient to relate the habit to service.
Therefore, in the event that the Tribunal found that the more recent Statement of Principles was to be applied, it was submitted for the Respondent that the Applicant's hypothesis was dispelled beyond reasonable doubt and therefore he did not satisfy step 4 of the test in Repatriation Commission v Deledio (1998) 83 FCR 82 (at 97, 98).
consideration of evidence and findings of fact
The applicable Statement of PrinciplesThe Tribunal notes the absence of the factor, in Instrument No.95 of 1995, on which the Applicant seeks to rely, that is, "increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate". Instrument No.95 of 1995 was the Statement of Principles in place at the time of the primary decision. The relevant factor was inserted by amendment in Instrument No.191 of 1996 that was gazetted on 18 December 1996, being after the date of the primary decision. Those Statements of Principles were subsequently revoked and replaced by Instrument No.84 of 1999. Factor 5(c), introduced in Instrument No.191 of 1996, was retained in the new Statement of Principles.
The Tribunal agrees that the material before it does not point to the existence of any other factors in the earlier Statement of Principles. Therefore the issue of what Statement of Principles to be applied by the Tribunal is a hurdle in this matter.
Section 50 of the Interpretation Act is relevant when considering which Statement of Principles applies. That section provides –
50.Effect of Repeal of Regulations
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 affecting the repeal;
(a)effect any right, privilege, obligation or liability aquired, accrued or incurred under any Regulations so repealed; or
(b)affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any Regulations so repealed; or
(c)affect any investigation, legal procedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;
and any such investigation, legal proceeding or remedyt may be instituted, continued or enforced, and any such penalty, forfeiture, or punishment may be imposed, as if the repealing Act or Regulations had not been passed or made.
The Tribunal relies on the decision of Mathews J sitting as President of the Tribunal in Re Zoarder (supra) in the interpretation of s50 of the Interpretation Act; see also the Tribunal's decision Re Olsen (supra). The Tribunal, with respect, agrees with Mathews J's conclusions on the nature of protection afforded by s8 (which is a provision in almost identical terms to s50 but with respect to the repeal of an Act) of the Interpretation Act Re Zoarder (at 350), viz-
The "rights" which s8(c) is designed to preserve are rights, albeit conditional or inchoate ones, which would otherwise be lost upon the repeal of the legislation in question. In other words, the section applies where the change in the law would otherwise deprive a claimant of rights already accrued. It operates to prevent a claimant being unfairly disadvantaged by changes in the law between the making of a claim and the time of its determination: Re Reilly and Secretary, Department of Social Security (1987) 12 ALD 407 at 414;7 AAR 130 at 134. Accordingly, it will normally (if not invariably) only apply to preserve rights where the change in the law is disadvantageous to the person asserting the right. It is difficult to conceive of a situation where the law has moved from a restrictive to a less restrictive regime where the applicant could be said to have an accrued right which will require preservation under s8(c). This is precisely what has happened here. There was in my view no right of the applicants which needed protection under s8(c).
The Tribunal notes the Respondent's submissions that the effect of the decision of the Full Federal Court in Keeley is that the applicable Statement of Principles is the one that was in place at the time of the primary decision. However, that decision was about the preservation of the appellant's right where a new Statement of Principles was less favourable than the one applicable at the time the primary decision was made. In the matter now before it, the earlier Statement of Principles is the less favourable Instrument. The Tribunal considers that Keeley assists the Applicant insofar as it states (at 123) 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". This pertains to a situation where the Statement of Principles in place at the time the right accrued is more beneficial than the revoking Instrument. The Tribunal also notes that the majority (Lee and Cooper JJ) in Keeley (supra) said (at 123) –
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. With regard to beneficial legislation such as the Act, it may be assumed that a construction of substantive provisions least likely to work or cause unfairness in result is to be preferred . It may be concluded that Parliament intended that the review of a decision on a claim made pursuant to a Statement more beneficial to a claimant than the terms of a Statement that replaced the former Statement after the decision had been made, is to be conducted as if the former Statement had not been revoked. Unless the Act provided otherwise, a proceeding initiated under the Act to review a decision made by the Commission was to be carried out by determining if the respondent's claim to a pension had been wrongly refused, the decision of the Commission to be replaced by the decision that should have been made by the Commission had it properly applied the law as it stood: see Esber at 440-441 per Mason CJ, Deane, Toohey, Gaudron JJ.
The Tribunal considers that in applying the abovementioned reasoning to the matter now before it, it is reasonable to conclude that where the earlier Statement of Principles is less favourable, the Applicant is not obliged to rely on his so called accrued rights. This is because that section (and s8) of the Interpretation Act applies only to preserve a right where the change in the Statement of Principles would be disadvantageous to him; Re Olsen (supra). In the words of Mathews J there is no right of the Applicant that needs protection in this case; see Re Olsen (supra).
The Tribunal notes the Respondent's submission that s8 of the Interpretation Act also preserves the obligations or liabilities of the Respondent, acquired, accrued or incurred under any repealed legislation, which is to determine a person's claim in accordance with the Statement of Principles in force on the date of the primary decision. The Tribunal rejects that submission. The Tribunal agrees the Respondent has an obligation under the legislation to determine eligibility for pension in terms of the applicable law, but that obligation is not of the nature referred to in s8(c) of the Interpretation Act; Re Zoarder (supra) at 350. As Mathews J stated, and the Tribunal, with respect, agrees, the Respondent "are public officials who are charged with the administration of the Act. They have no personal rights or obligations and are thus outside the ambit of this provision" (at 350).
For the reasons set out above, the Tribunal determines that Instrument No.84 of 1999, being the most recent relevant Statement of Principles, can be applied by the Tribunal in determining this matter.
Has a reasonable hypothesis been raised under the current Statement of Principles?In determining whether the Applicant's condition of malignant neoplasm of the prostate is causally related to his service in accordance with s120(1), 120(3) and 120A of the Act, the Tribunal must follow the steps as outlined by the Full Federal Court in Deledio (supra) at 97-8 –
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 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 ss196B(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 s120(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.
The Tribunal finds that the material before it points to an hypothesis, that the Applicant developed a habit of eating fatty foods on service which continued immediately after service as a result of the scrub typhus and poor state of health prior to and at the time of his discharge. Thereafter, until the onset of his prostate condition, on the evidence of Dr Gertler, the Applicant continued to eat fatty foods because it gave him pleasure especially in relation to his war-caused anxiety state. The Tribunal considers that the hypothesis is properly raised and is not one which is merely left open; East v Repatriation Commission (1987) 16 FCR 517.
The Tribunal finds the Applicant's hypothesis meets factor 5(c) of Instrument No.84 of 1999. On the evidence of Ms Heyman the Applicant's animal fat intake prior to joining the Army was at 39.55g per day. During service he had 100.5g animal fat per day at Ingleburn, 117g animal fat per day in the Middle East and 113.2g animal fat per day in New Guinea. This represents an increase of 217 per cent when compared with his pre-service diet. His animal fat intake on discharge was between 96.8 and 106.37g per day and his current diet remains at about 95.71g animal fat per day. The Tribunal finds the Applicant meets the template of the relevant Statement of Principles, and therefore the hypothesis is reasonable.
Moving to the last step of the Deledio test, the Tribunal finds the hypothesis has not been disproved beyond reasonable doubt. The Tribunal finds that the Applicant was credible and the dietary history obtained by Ms Heyman and Mr Friderick was consistent with the Applicant's oral evidence and relatively consistent with each others' findings. On the Applicant's evidence, which the Tribunal accepts, his diet prior to service included only minimal fat, occasioned by an episode of "yellow jaundice" as a child when he was required to have a low fat diet. Although not required to continue this in later years before his enlistment, nevertheless he maintained a low fat diet until his enlistment.
The Tribunal accepts the submission for the Applicant that his increase in animal fat consumption on service was causally related to his service. Both dieticians came to the same conclusion about the trends in fat consumption in the Applicant's diet - low fat diet in childhood, high fat diet during his Army service, and his current diet which continues to be high in fat although not to the level it was during the Army.
The Tribunal finds that the Applicant's condition was connected to service in two respects. Firstly, he developed a "liking" for fatty foods due to the diet imposed upon him by the military. Secondly, his intake of fatty food continued immediately post-service, as a result of excessive weight loss following scrub typhus which he contracted on service. The Tribunal finds that he was advised to eat fatty foods to gain weight, and accordingly was fed foods high in animal fat by his mother-in law. On the evidence of Dr Gertler and Ms Heyman, which the Tribunal accepts, high fat diets were usually recommended to recover from illnesses such as scrub typhus.
The Tribunal finds that the Applicant's preference for fatty foods was further reinforced by his war-caused anxiety state. On the evidence of Dr Gertler, which the Tribunal accepts, a psychological association of reinforcement existed in the connection between the Applicant eating fatty foods and his anxiety. Although Dr Gertler opined that it was more common for people with anxiety to eat sweet foods, it was still possible that the Applicant developed a psychological satisfaction from eating fatty foods. The Tribunal finds that fact is more than just a "mere possibility" [Repatriation Commission v Bey(1997) 79 FCR 364] and it does not disprove the hypothesis.
The Respondent submitted that the relative stability of the Applicant's weight for some years called into question whether in fact he increased his consumption of animal fat. The Tribunal finds that the relative stability of the Applicant's weight does not disprove the hypothesis. On the evidence of Dr Gertler, which the Tribunal accepts, it was possible for weight to stay relatively the same despite excessive calorie intake.
The Respondent also submitted that there were a variety of factors that were not necessarily service related which explained why the Applicant continued to eat fatty foods, including his ability to afford those foods post-service. The Tribunal finds that it cannot be satisfied beyond reasonable doubt that that was the reason, or the only reason, why the Applicant continued his preference for fatty foods.
The Tribunal cannot be satisfied beyond reasonable doubt that the Applicant's condition of malignant neoplasm of the prostate is not a war-caused condition. The decision under review is therefore set aside. In substitution the Tribunal determines that the condition is war-caused pursuant to s9 of the Act, with effect on and from 2 August 1998, being a date not earlier than 6 months before the application for review was lodged with this Tribunal.
In setting the effective date, the Tribunal notes that the Applicant's lay representative lodged an application for review of the VRB decision to the Department of Veterans' Affairs instead of this Tribunal. That application was forwarded to the Tribunal on 2 February 1998. The Applicant was then asked to lodge a formal application for extension of time, which was done on 27 February 1998 (but dated 28 February 1998). Although the documents provided by the Respondent variously show that date of lodgement of the application with the Tribunal to be 4 March 1998 and 27 February 1998, those dates are incorrect.
There is insufficient evidence before the Tribunal to proceed to assess the rate of pension payable to the Applicant in respect of all his war-caused disabilities, and therefore the Tribunal will remit the matter to the Respondent to assess the rate of pension payable.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed: .....................................................................................
AssociateDate/s of Hearing 21 August, 1999, 19 October 2000
Date of Decision 5 December 2000
Counsel for the Applicant J.Fitzgerald
Solicitor for the Applicant Dibbs Crowther & Osborne
Counsel for the Respondent N/A
Solicitor for the Respondent R.Wallis, Dept. of Veterans' Affairs
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