Burge v Repatriation Commission

[2001] FMCA 74

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BURGE v REPATRIATION COMMISSION [2001] FMCA 74

VETERANS AFFAIRS – Veterans entitlement.

ADMINISTRATIVE LAW – Appeal from decision of Administrative Appeals Tribunal – consent orders – role of appellate court allowing appeal and remitting to Tribunal – no mere formality.

Minister for Immigration & Ethnic Affairs v Gungor 63 FLR 441
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) FCA 1194
Repatriation Commission v Williams (2001) FCA 1185

Administrative Appeals Tribunal Act 1975

Applicant: LESLIE BURGE

Respondent: REPATRIATION COMMISSION

File No: MZ 606 of 2001

Delivered on: 26 October 2001

Delivered at: Melbourne

Hearing Date: 12 October 2001

Judgment of: McInnis FM

REPRESENTATION

Solicitor for the Applicant: Mr D De Marchi

Solicitors for the Applicant: De Marchi & Associates

Counsel for the Respondent: Ms A McMahon

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the appeal be allowed.

2. That the application be remitted to the Administrative Appeals Tribunal for re-hearing according to law, save and except that the condition of varicose veins left leg be affirmed as not being war-caused in accordance with the decision of the Tribunal dated
   20 December 2000.

3. That the respondent pay the applicant’s costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 606 of 2001

LESLIE BURGE

Applicant

And

REPATRIATION COMMISSION

Respondent

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Administrative Appeals Tribunal constituted by Mr B H Pascoe, Senior Member, Mr I L J Campbell and Associate Professor J Maynard (“the AAT”) delivered on 20 December 2000.

2. LESLIE BURGE (“the applicant”) in a supplementary notice of appeal raises various grounds upon which the application is based in support of the application that the Tribunal has made an error of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975.  The AAT had been asked to review a decision of the Veterans Review Board (“the VRB”) dated 17 November 1998 which had affirmed a decision of the respondent of 7 July 1997 that found conditions of intra-cranial haemorrhage, mild anxiety disorder and varicose veins left leg were not war-caused.

3. Before the court the legal representatives of the applicant and the respondent indicated that the application had been settled and I was encouraged to make the following orders by consent:

“1. That the appeal be allowed.

2. That the present application be remitted to the Administrative Appeals Tribunal for re-hearing according to law, except that the condition of varicose veins left leg be affirmed as not being war-caused in accordance with the decision of the Tribunal dated

20 December 2000.

3. The respondent should pay the applicant’s reasonable costs of the application to be taxed in default of agreement.”

1. In my view, when a court is confronted with minutes of proposed orders in the form that requires both the appeal to be allowed and the matter remitted to the AAT for re-hearing according to law, then it is incumbent upon the appellant court to be satisfied that it is appropriate to make the order.  Consent to the order does not mean that the order should be automatically made by the court.  The process should not be regarded as a mere formality.

2. In the present case, I therefore requested the attendance of the legal representatives of the parties to persuade me that there is a proper basis upon which I should make the orders, allowing the appeal and remitting the matter back to the AAT.

3. It was agreed in this matter that the two issues which are the subject of the appeal being allowed relate to the finding by the AAT that the applicant would not succeed in the claim relating to the intra-cranial haemorrhage and generalised anxiety disorder.  The applicant did not pursue and indeed on the material before me could not pursue an argument that there had been an error of law in dealing with the claimed condition of varicose veins in the left leg.

4. In considering the basis upon which the appeal should be allowed and the law which may be relevant, submissions were made by both parties.  I indicated to the parties that I would need to be satisfied that there was an appropriate error of law and that in my view it is relevant and helpful in these circumstances for the appellant court to identify the error of law so that if the matter is to be remitted for re-hearing according to law then the AAT conducting the re-hearing will at least be given some guidance as to the law to be applied at the re-hearing.  To do otherwise would result in the AAT embarking upon a new hearing on all issues without the certainty of at least knowing where the Tribunal, as previously constituted, had made an error.  The Tribunal which is the subject of appeal in the present case has clearly made findings of fact which in my view do not necessarily constitute an error of law.

5. When invited to make submissions I further indicated to the representatives of the parties that if I were to decide not to remit all of the issues to the AAT, then I would give the appellant the opportunity of then pursuing that part of the application which has not been found to be subject to an error of law and further submissions could then be made.

6. It is appropriate to consider submissions as to the error of law and indeed provide either reasons for decision in a formal sense or, at the very least, provide the AAT with a transcript of the exchange which occurred in court in order to understand the nature of the error of law and the law to be applied upon the re-hearing.

7. I am mindful of the fact in appeals of this kind there is clear authority for the proposition that the court has an obligation to identify the question of law and endeavour to correct that error of law on appeal.  Thereafter the court should make orders which may be appropriate in the discharge of judicial function and exercise of judicial power of the Commonwealth.  I refer in particular to the decision in Minister for Immigration & Ethnic Affairs v. Gungor 63 FLR 441 and the judgment of Sheppard J when responding to a contention by the respondent concerning the court’s role on an appeal under s 44 of the Administrative Appeals Tribunal Act, His Honour stated at page 454,:

   “Dealing with the powers of this court on this appeal, it is not correct to see our powers as unlimited.  The powers as stated are subject to restrictions, which restrictions are readily apparent if compared with the powers on review of the Tribunal, admittedly acting administratively, and the powers of this Court in other jurisdictions, both original and appellate.  The relevant portions of s 44 of the AAT Act are as follows:

   (1)  A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

   (2) …

   (3) …

   (4) The Federal Court of Australia shall hear and determine the appeal and make such order as it thinks appropriate by reason of its decision.

   (5) Without limiting by implication the generality of subsection (4) the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence by the Tribunal in accordance with the directions of the court.  (The emphasis is mine.) 

   It is in my opinion not correct to say that this court is by these provisions given wide powers to make such order as it thinks fit.  Implicit in its powers are a number of restrictions.  The appeal is expressly limited to error of law, which alleged error is the sole matter before this Court and is the only subject matter of any order made consequent on the appeal.  The order which this court can make after hearing the appeal is also similarly restricted to an order which is appropriate by reason of its decision.  It follows that the only order which can be properly made is one the propriety of which is circumscribed by and necessary to reflect this Court’s view on the alleged or found error of law.  To go further I would see as amounting to exceeding the jurisdiction of this Court under this section.  A power to make ‘such order as it thinks appropriate by reason of its decision’ is much more restrictive than a power ‘to make such orders as it sees fit’, or a power ‘to make a decision in substitution for the decision’ the subject of the appeal.  Section 44(5) confirms, though it states that it does not purport to limit, this as an appropriate reading of the power in s 44(4) when it limits its statement of the express power of the Court when setting aside a decision to the making of an order remitting the case to be heard again.  Having set aside a decision, it has no express power to substitute what it sees as the correct decision unless such is the appropriate order by reason of its decision on the point of law in the context of the particular proceedings.”

8. In the same judgment His Honour further states:

   “The error of law alleged has to be isolated out, a decision made on this question of law, and such order made and directions given as are appropriate only to the decision of this question of law, and not to the decision under review by the Tribunal.”

9. With respect I would agree with the comments made by His Honour, Sheppard J, in the Gungor case and in my view those comments are equally applicable to the court’s consideration of a consent order whereby the parties seek to have the appeal allowed and the matter remitted to the AAT. I can see no reason why the appellate court should not act in accordance with the powers provided in s 44 of the AAT Act and specifically cannot see any reason why the court should fail to discharge its duty to ensure that the area of law alleged has been isolated that the decision is made on the question of law and thereby make such orders and directions as are appropriate to the decision on the question of law.

10. The parties before the court should clearly indicate the basis upon which it is suggested there has been an error of law to enable this court to provide reasons which can then be referred to the AAT.

11. The applicant has submitted that the error of law has occurred in the present case for reasons set out in the grounds of appeal which are contained in the supplementary notice of appeal.  For the purpose, however, of the court considering the appropriateness of minutes of consent orders, reliance was placed on Ground 4.1 which provides:

    “The Tribunal was wrong in law in failing to apply correctly ss 9, 24, 119, 120(1), (3), (6) and 120A and 196B of the Veterans Entitlements Act 1986.  In that:

    (a)it did not consider the application of s 9 of the Act and the application of its various subsections;

    (b)it did not consider the applicability of s 24 as it should have;

    (c)it failed to consider or consider adequately s 119 of the Act and the application of the section to the claim and to the interpretation of the statement of principles;

    (d)it failed to consider or consider adequately s 120(1) and (3) and the true test of a reasonable hypothesis as enunciated in the High Court decision of Bushel v Repatriation Commission;

    (e)it required the applicant to carry the onus of proof contrary to s 120(6) if it misapplied the test of ss 120A and 196B.”

12. In addition, the applicant further relied upon Ground 4.2, which provides:

    “The Tribunal was wrong in law in the application of and interpretation of the relevant Statement of Principles for cerebrovascular accident, generalized anxiety disorder and varicose veins in that

    (a)the Tribunal was entitled to use the most favourable SoP.

    (b)the Tribunal failed to apply the correct test in Deledio in interpretation of the correct SoP.”

13. When the Tribunal’s reasons were analysed before me, it was clear that certain findings of fact had been made on important issues.  In particular, the Tribunal had found that it was not satisfied that the diagnosis of cerebral ischaemia was correct and suggested that on the evidence it was a possibility.  The Tribunal stated, “Given that this is purely speculation and the contemporaneous medical records do not support such a diagnosis, the Tribunal is unable to find sufficient grounds to accept a condition of cerebral ischaemia“.  The Tribunal then went on to consider the applicability of Factor 5(j) in the relevant SoP concerning smoking and suggested that it had not been satisfied and then further analysed the issue of alcohol consumption under Factor 5(d) of the SoP that it was considering and concluded, “We are satisfied this alcohol consumption the year prior to the cerebral haemorrhage was not related to his army service even if the level of consumption was sufficient to satisfy Factor 5(d) of SoP Instrument No. 142 of 1996.”

14. It was further submitted in relation to the Statement of Principles that in the present case the Statement of Principle Instrument No. 142 of 1996 had been replaced at the time of the AAT hearing by Statement of Principle No. 52 of 1999 in relation to cerebrovascular accident.

15. The AAT was therefore said to be in error by applying the earlier Statement of Principle.  This suggested error was conceded by the respondent in the present case.  Although in the circumstances no further concession was made as to the possible outcome of applying the later SoP and nor was it conceded that indeed the outcome would be any different having regard to the fact-finding process.  It was submitted, however, by the applicant that the Tribunal had not correctly set out in making its findings the stages that should have been followed pursuant to the decision in Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio’s case”) and had applied general fact finding when it should have at least indicated the appropriate standard of proof. It was said that in dealing with the cerebrovascular accident and the Statement of Principles relating to that event that the appropriate standard of proof is beyond reasonable doubt. The applicant otherwise concedes that in dealing with the issue of a `diagnosis’, the balance of probabilities is the appropriate standard of proof. The criticism made of the Tribunal’s reasoning is that it did not set out in sufficient detail the standard of proof that it relied upon in reaching its decision on the issue of alcohol consumption and indeed did not refer to the appropriate standard of proof in reaching its decision concerning the diagnosis. The issue concerning the generalised anxiety disorder was said to be subject to criticism by the applicant in that the Tribunal again did not apply or consider applying a more recent and possibly more favourable Statement of Principles. In relation to that condition the Tribunal applied Instrument No. 48 of 1994 and it is common ground that at the time of the Tribunal’s decision there was a further Statement of Principle No.1 of 2000 which may have applied having regard to recent Federal Court authorities which were delivered after the Tribunal hearing had been conducted. I refer to Repatriation Commission v Gorton (2001) FCA 1194 delivered 29 August 2001 and Repatriation Commission v Williams (2001) FCA 1185 delivered 29 August 2001.

16. The failure to follow the steps set out in Deledio’s case were also relied upon in relation to the generalised anxiety disorder finding and again criticism was made of the failure to refer to the appropriate standard of proof in reaching a decision about the diagnosis.  It was noted the Tribunal stated, “Even if we could be persuaded that a diagnosis of generalised anxiety disorder can be made out, and we are not, even Dr Cole has difficulty in attributing a clinical onset of the disorder within two years of any stressful event during service.  As a consequence it is clear that Mr Burge does not satisfy the SoP.”  It was suggested that the appropriate standard of proof was beyond reasonable doubt, though again conceded by the applicant that if it is only a diagnosis then in issue, the balance of probabilities is the appropriate standard of proof.

17. For its part the respondent indicated that the error of law could be found simply in the failure of the Tribunal to apply the more recent and potentially at least more favourable Statements of Principles in relation to both the cerebrovascular accident and generalised anxiety disorder.  The respondent does not concede that the outcome would necessarily be different and argued that the appropriate standard of proof in the findings by the Tribunal of the acceptability or otherwise of the diagnosis would be on the balance of probabilities and not beyond reasonable doubt on a reverse onus basis.  The respondent was prepared to concede that of all the grounds of appeal, the only sections which might have some basis upon which an error of law could be asserted would therefore be s 120(1) or (3) or 120A.  The other provisions are machinery provisions and/or irrelevant to the present application.

18. It was of concern to me that the acceptance of the Minutes of Proposed Orders by Consent may be unwise in circumstances where at least on my reading of the Tribunal’s reasons it had rejected the diagnosis of cerebral haemorrhage and indeed rejected the diagnosis of generalised anxiety disorder.  My only concern was whether the Tribunal had at least turned its mind to the correct Statement of Principles and/or referred in clear terms to compliance with the steps set out in Deledio’s case which  at pp 97-98 provide as follows: “At the risk of being repetitious we would re-state the course which the Tribunal is to take in a case, such as the present, (that is one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:

    “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.

    1.    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.

    2.    If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.  It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP.  The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service [as required by ss 196B(2)(d) and (e)].  If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.

    3.    The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury.  If not so satisfied, the claim must succeed.  If the Tribunal is so satisfied, the claim must fail.  It is only at this stage of the process that the Tribunal will be required to find facts from the material before it.  In so doing, no question of onus of proof or the application of any presumption will be involved.”

1. I was also referred to the decision of the court in Deledio where it approved the statement of the Learned Primary Judge Heerey J who had stated, “At no stage is there an onus of proof on the claimant.  If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact”.  It is submitted and I accept that the tribunal failed with sufficient precision to identify this standard of proof in relation to the issues in dispute arising from components of the relevant SoP.

2. In my view there is sufficient material before me to suggest that the errors occurred in that limited sense namely:

   a)the failure to set out properly the steps to be followed arising from Deledio’s case;

   b)the failure to set out the appropriate standard of proof which in the case of the diagnosis is on the balance of probabilities and in the case of determining whether the facts at least point to a reasonable hypothesis in a Statement of Principles it is a reverse onus beyond reasonable doubt standard of proof;

   c)Failure to consider applying the more recent and potentially more favourable Statements of Principles.

3. It is on those three grounds I am satisfied that it is appropriate to remit the matter to the Tribunal for further hearing and note that the appeal against the finding in relation to the varicose veins to the left leg is not pursued.  That should of course be a matter that is not pursued before the Tribunal at the re-hearing as it has now been abandoned in my view by the concession implicit in the Minutes of Proposed Orders before this court.  I am not satisfied that the other grounds of appeal referred to in the supplementary Notice of Appeal have been established and in particular I am satisfied no error of law has occurred in relation to s 9, 24, 119 and 196B of the Veterans Entitlement Act 1986.  I accept as submitted by the respondent that these are procedural provisions and in the case of s 9 provision which merely requires the tribunal to apply the matters set out in s 120 of the Act and that no error of law has been established in relation to those provisions.

4. Accordingly in my view the appropriate orders that the court should make in this matter are:

   (1)That the appeal be allowed.

   (2)That the application be remitted to the Administrative Appeals Tribunal for re-hearing according to law, save and except that the condition of varicose veins left leg be affirmed as not being war-caused in accordance with the decision of the Tribunal dated 20 December 2000.

   (3)That the respondent pay the applicant’s costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date:    26 October 2001