Brown and Repatriation Commission

Case [2000] AATA 1118

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               

  1. 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…

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Brown and Repatriation Commission [2000] AATA 1118
Case
[2000] AATA 1118
Decision Date

CaseChat Overview and Summary

The case before the court involved Mr. Brown, who sought to have his malignant neoplasm of the prostate declared as war-caused. This required determining whether his war service led to an increase in his animal fat consumption by 40% for 20 years before the clinical onset of his condition. The court had to decide if the hypothesis that his war service caused this increase was disproved beyond reasonable doubt, and whether the Tribunal was obliged to apply the Statement of Principles (SoP) in place at the time of the primary decision, or if Mr. Brown could rely on a more recent SoP that was more beneficial to him.

The central legal issues were whether the Tribunal was required to apply the SoP that was in effect at the time of the primary decision or whether Mr. Brown could rely on the more recent SoP, and if the more recent SoP could be applied despite the presumption against retrospective legislation. Furthermore, it was necessary to determine the nature of the protection provided by section 50 of the Acts Interpretation Act and whether Mr. Brown's accrued rights required protection under this provision.

The court reasoned that the Tribunal was not obliged to apply the SoP in place at the time of the primary decision. The Tribunal had discretion to apply the more recent SoP if it was more beneficial to the applicant, and this discretion was exercised in Mr. Brown's favour. The court also noted that the protection provided by section 50 of the Acts Interpretation Act was not absolute and could be overridden by a contrary intention expressed in the legislation. In this case, there was no such contrary intention, and therefore Mr. Brown was entitled to rely on the more recent SoP.

The court's final orders were that the Tribunal's decision was set aside, and the matter was remitted to the Tribunal for reconsideration in light of the court's findings. The Tribunal was directed to apply the more recent SoP and to determine whether Mr. Brown's malignant neoplasm of the prostate was war-caused in accordance with that SoP.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 service The 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 service The 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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