Collins and Repatriation Commission
[2001] AATA 744
•27 August 2001
CATCHWORDS – VETERANS' AFFAIRS
Acts Interpretation Act 1901 – ss 46A, 48, 48A, 48B, 49, 50
Veterans' Entitlements Act 1986 – ss 5AB, 5D, 9, 13, 14, 17, 18, 19, 20, 120, 120A, , 135, 157, 175, 177, 196, 196B, 196C, 196D, 196E, 196F, 196G, 196W, 196Y, 196Z
Benjamin v Repatriation Commission [2001] FCA 317
Budworth v Repatriation Commission [2001] FCA 317
Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) 109 ALR 30; (1992) 66 ALJR 753; (1992) 29 ALD 1; (1992) 16 AAR 1
Byrnes v Repatriation Commission (1993) 177 CLR 564; (1993) 116 ALR 210; (1993) 67 ALJR 805; (1993) 30 ALD 1; (1993) 18 AAR 1
Cowie v Repatriation Commission [1999] AATA 334 (Unreported) Deputy President Forgie, Brigadier Brumfield and Dr Morley (Members), 19 May 1999
Deledio v Repatriation Commission (1997) 47 ALD 261; (1997) 25 AAR 396
Meehan v Repatriation Commission [2001] FCA 597, (Unreported, Wilcox J, 25 May, 2001)
Merrell and Repatriation Commission [2001] AATA 413 (Unreported, Deputy President Forgie, 17 May, 2001)
Ogston and Repatriation Commission (1999) 86 FCR 578; (1999) 56 ALD 789; (1999) 29 AAR 89
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Repatriation Commission v Keeley (2000) 98 FCR 108; (2000) 60 ALD 401; (2000) 31 AAR 150
Repatriation Commission v Thompson [2001] FCR 341 (Unreported, Drummond, Whitlam and Emmett JJ, 2 April 2001)
DECISION AND REASONS FOR DECISION [2001] AATA 744
ADMINISTRATIVE APPEALS TRIUBNAL )
) Q2000/856
GENERAL ADMINISTRATIVE DIVISION )
Re JOHN COLLINS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss S A Forgie (Deputy President)
Date 27 August, 2001
Place Brisbane
DecisionI remit the matter to the Commission to determine the applicant's claim in accordance with these reasons.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 15 September, 2000, the applicant, Mr John George Collins, applied for review of three decisions. The first of those decisions was a decision that had been substituted by the Veterans' Review Board ("VRB") on 5 March, 1999 in place of a decision of the respondent, the Repatriation Commission ("the Commission") dated 21 April, 1997. The decision substituted by the VRB accepted Mr Collins' claim that his condition of polycythaemia vera was war-caused within the meaning of s. 9 of the Veterans' Entitlements Act 1986 ("the Act"), found that the Commission was liable to pay pension for any incapacity arising from that condition from and including 23 July, 1996 and remitted the matter to the Commission to assess the rate of that pension.
The remaining two decisions of which Mr Collins sought review had been made by the Commission on 26 November, 1999 and 16 May, 2000 respectively and had been affirmed by a decision of the VRB dated 31 July, 2000. The earlier decision increased Mr Collins' pension to the Extreme Disablement Adjustment Rate ("EDA") with effect from 16 April, 1999. The later decision refused Mr Collins' claim that his condition of polycythaemia vera was war-caused within the meaning of the Act. A majority of the VRB (Ms Cowdroy and Mr Hamwood) affirmed both decisions. The minority (Mr Logue) agreed with the majority in affirming the assessment decision but disagreed regarding Mr Collins' claim for polychythemia vera.
At the hearing, Mr Collins was represented by Mr Matthews of counsel and the Commission by Mr Hanks QC with Miss Ford of counsel. No evidence was given at the hearing as it was concerned with a preliminary issue.
THE ISSUE
The issue in this case revolved around the proper interpretation of Statement of Principle 78 of 1999 ("SoP 78') and whether its effect is to narrow the bases upon which Mr Collins may otherwise establish that he is suffering from a war-caused injury or disease. In particular, the issue is whether its effect is that the material must point to Mr Collins' having an inability to obtain appropriate clinical management for a condition of polycythaemia vera, which he suffered or contracted before or during (but not arising out of) his operational service where his inability materially contributed to, or aggravated, his polycythaemia vera. The precise nature of Mr Collins' hypothesis and the reasonableness of that hypothesis was not canvassed at the hearing as the hearing was confined to the construction of SoP 78.
BACKGROUND
On the basis of the material lodged in the Tribunal pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents"), I will set out the history of the claims made by Mr Collins in relation to polycythaemia vera.
Mr Collins first lodged a claim for that condition on 9 June, 1988 when he described it as "Blood malignancy; diagnosed as Polycythaemia Rubra Vera" (T documents, page 8). In a decision dated 22 September, 1988, the Commission did not accept that condition as war-caused (T documents, pages 14-16). On reviewing the Commission's decision on 18 July, 1989, the VRB first adjourned its consideration to enable further investigations to be carried out in terms of a letter it wrote to the Department of Veterans' Affairs ("the Department") (T documents, pages 18-24). Various medical reports were obtained after the date of the VRB's decision. From the T documents, they appear to have been obtained from Dr Cameron Stewart, Clinical Haematologist, on 4 October, 1989 (T documents, pages 26-28) and Dr Ian Bunce, Clinical Haematologist, on 21 December, 1990 and 12 March, 1991 (T documents, pages 29-31).
Mr Collins lodged a further claim for polycythaemia rubra vera on 21 May, 1995 (T documents, pages 33-34). From the material in the T documents, that claim does not seem to have been determined by the Commission.
That claim was followed by another claim lodged by Mr Collins on 28 August, 1995 (T documents, pages 35-40). That claim was rejected by the Commission on 25 September, 1995 (T documents, pages 41-43). Mr Collins applied to the VRB for review of that decision and further medical material was submitted in support of his claim (T documents, pages 44-52). On 5 March, 1996, the VRB affirmed the Commission's decision (T documents, pages 53-55). Mr Collins lodged an application in this Tribunal to review the Commission's decision as affirmed by the VRB (T documents, pages 56-57). The Tribunal dismissed that application by consent of the parties on 21 April, 1997 (T documents, page 64).
Although there is no copy of it in the T documents, it appears that Mr Collins had lodged a further claim for a number of conditions, including polycythaemia vera, on 23 October, 1996. That appears in the record of the Commission's decision refusing his claim for polycythaemia but accepting it in relation to the remaining three conditions (T documents, pages 58-63). The Commission's decision was dated 21 April, 1997. Mr Collins wrote to the Department indicating that he wished to apply to the VRB for review of the Commission's decision in so far as it rejected his claim for polycythaemia vera (T documents, page 65). On 23 April, 1998, the Board decided to adjourn its consideration of the application so that it could undertake further research and consideration. On resuming its consideration on 5 March, 1999, it made the decision referred to in the opening paragraph of these reasons (T documents, pages 85-101).
As the VRB had remitted the matter for the assessment of the appropriate rate of pension, the Commission determined on 26 November, 1999 that it should be assessed at the EDA rate with effect from 16 April, 1999. The assessment covered the conditions of polycythaemia vera and those of cervical spondylosis, chronic bronchitis and emphysema accepted earlier by the Commission in another decision dated 27 September, 1999. Mr Collins applied to the VRB for review of that decision on 10 December, 1999. The VRB affirmed the Commission's decision on 31 July, 2000 (T documents, pages 168-181).
In the meantime, the Commission had sought review of the decision as substituted by the VRB on 5 March, 1999. On 21 March, 2000, the Tribunal set aside that part of the decision relating to polycythaemia vera on the basis that the claim made by Mr Collins on 18 December, 1996 was not a valid claim as s. 14(5) of the Act prohibited its being made while his earlier claim made on 28 August, 1995 had not been finally determined (T documents, pages 110-113). The earlier claim had not been finally determined until 21 April, 1997 when his application in this Tribunal had been dismissed by consent (see paragraph 8 above).
On 15 July, 1999, Mr Collins lodged a further claim in respect of degenerative change to his cervical and lumbar spines, breathlessness and a chronic cough (T documents, pages 102-107).
On 27 March, 2000, he lodged a further claim in respect of polycythaemia vera (T documents, pages 114-121). In a decision dated 16 May, 2000, the Commission refused that claim and its decision was affirmed by the VRB on 31 July, 2000 (T documents, pages 168-181).
THE LEGISLATIVE FRAMEWORK
Subject to the Act, the Commonwealth is liable to pay a pension by way of compensation to a veteran who has become incapacitated from a war-caused injury or war-caused disease. This is the effect of s. 13(1)(b) and (d). What is meant by a "war-caused injury" or a "war-caused disease" is set out in s. 9. In so far as it is relevant, that section provides:
"(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war 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;
(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e)the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the
period, or last period of eligible war service rendered by theveteran, but not while the veteran was rendering eligible war
service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
(2)For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service:
(a)if that incapacity was due to an accident – that incapacity shall be deemed to have arisen out of the injury suffered by the veteran as a result of the accident and the injury so suffered shall be deemed to be a war-caused injury suffered by the veteran; or
(b)if the incapacity was due to a disease – the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-caused disease contracted by the veteran.
(3)…
(4)…
(5)…
(6)…
(7)…"
A "disease" is defined to mean:
"(a) any physical or mental ailment, disorder or defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c)the aggravation of such an ailment, disorder, defect or morbid condition; or
(d)a temporary departure from:
(i)the normal physiological state; or
(ii)the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effects of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels)." (s. 5D(1))
An "injury" is defined in terms of a physical or mental injury but does not include a disease or the aggravation of a physical or mental injury. The expression "incapacity of a veteran from a war-caused injury or a war-caused disease" is defined. Section 5D(2) provides that, unless a contrary intention appears, it:
"… is a reference to the effects of that injury or disease and not a reference to the injury or disease itself." (s. 5D(2))
A claim for a pension is made in accordance with s. 14 of the Act. Once made, the Secretary of the Department is required to initiate an investigation into the matters to which the claim or application relates (s. 17(1)). Once that investigation is completed, the claim, together with any evidence furnished by the applicant and any evidence or documents held by the Department, is sent to the Commission (ss. 17(2) and (3)). In considering a claim, it is the Commission's duty to satisfy itself with respect to, or to determine, all matters relevant to the determination of the claim (s. 18(1)). The manner in which the Commission is to determine a claim is set out in s. 19. Where a claim is granted, there remains the question of the date from which a pension will be payable. That is the subject of s. 20 that provides, in essence, that the Commission may approve payment of a pension from and including a date not earlier than three months before the date on which the claim for a pension was received at an office of the Department.
The Commission's determination may be reviewed by the VRB (s. 135) and, if either the claimant or the Commission is dissatisfied with the VRB's decision, by the Tribunal (s. 175). Should either the VRB or the Tribunal make a decision granting a pension, the date from which that pension is payable is determined by reference to ss. 157 and 177 respectively. The effect of those sections is that the date the VRB or the Tribunal may fix must have regard to whether the claimant for the pension applied for review within the time limits specified for each review body.
Where a person has made a claim for a pension under s. 14 in respect of incapacity from a particular injury or disease or in respect of the death of a veteran but the claim has not been finally determined, that person is not empowered to make another claim in respect of that incapacity or that death (ss. 14(5) and (6)). What is meant by "finally determined" is set out in s. 14(7). It means that a decision made in respect of the claim is not subject to any form of appeal or review or, if it was so subject, the time for instituting the appeal or review has passed without its being instituted.
The standard of proof which must be used in determining whether or not a veteran's death is taken to be war-caused is set out in s. 120. That section sets out two standards but, as Mr Collins had operational service, only that in s. 120(1) is relevant. That test, generally known as the reasonable hypothesis test, is stated in the following terms:
"Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination."
Section 120(3) deals with the situation in which the Commission must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining, among other matters, that the death was war-caused. It provides:
"In applying subsection (1) ... 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 the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person."
Turning to the determination of a claim for a pension, there is a difference between claims lodged before, and those lodged after, 1 June, 1994. In relation to claims made on or after 1 June, 1994, the reasonableness of any hypothesis is to be assessed by reference to SoPs. That must be done in accordance with s. 120A.
In so far as it is relevant, s. 120A(3) provides in relation to a reasonable hypothesis that:
"For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) ...;
(b)...
that upholds the hypothesis."
Section 120A(4) provides that s. 120A(3) does not apply if the Repatriation Medical Authority ("RMA") has neither determined a SOP under s. 196B(2) nor declared that it does not propose to make such a SOP in respect of the kind of injury or disease suffered by the person or death met by the person. Where, however, the RMA has given notice that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission may not determine a claim in respect of either an incapacity or death (s. 120A(2)). It may only do so when the RMA has either determined a SoP under s. 196B(2) or has declared that it does not propose to do so (ss. 120A(2)(a) and (b)).
The RMA must prepare a SOP in situations prescribed in the Act. The effect of s. 196B is that it sets out the circumstances in which the RMA must determine a SoP in relation to claims to be assessed according to ss. 120(1) and (3) on the one hand and s. 120(4) on the other. The principles with regard to the reasonable hypothesis test are:
"If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; …(b)…
(c)…
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service." (s. 196B(2) and see s. 196B(3) regarding the reasonable satisfaction test)
Section 196B(14) defines the concept of "related to service" and provides that:
"A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)it arose out of, or was attributable to, that service; or
(a)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:
(i)to a place of duty upon having ceased to perform duty; or
(ii)away from a place of duty upon having ceased to perform duty; or
(b)it was contributed to in a material degree by, or was aggravated by, that service; or
(c)in the case of a factor causing, or contributing to, an injury – it resulted from an accident that would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person's environment consequent upon his or her having rendered that service; or
(d)in the case of a factor causing, or contributing to, a disease – it would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person's environment consequent upon his or her having rendered that service; or
(e)in the case of a factor causing, or contributing to, the death of a person – it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i)but for the rendering of that service by the person; or
(ii)but for the changes in a person's environment consequent upon his or her having rendered that service."
The expression "sound medical scientific evidence" has the meaning given in s. 5AB(2)
(s. 5AB(1)):
"Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if:
(a)the information:
(i)is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or
(ii)in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and
(b)in the case of information about how that kind of injury, disease or death may be caused - meets the applicable criteria for assessing causation currently applied in the field of epidemiology." (s. 5AB(2))
How does the RMA decide whether it should come to a view about a particular kind of injury, disease or death and determine a SoP? This question may be answered by reference to ss. 196E and 196B(4). If the RMA receives a request from a person or body specified in s. 196E(1) to carry out an investigation in respect of a particular kind of injury, disease or death, it must do so (s. 196B(4)(a) and s. 196E(1)(d)). Its investigation is conducted in order to obtain information that would enable the Authority to establish how the injury may be suffered, the disease may be contracted or the death may occur and the extent, if any, to which the injury, disease or death may, in the circumstances of this case, be war-caused (s. 196B(4)(c) and (d)). Those persons or bodies entitled to make a request under s. 196E are the Commission, a person eligible to make claim for a pension under Part II or IV or any organisation representing, in the circumstances of this case, veterans or their dependants (s. 196E(1)(a), (b) and (c)). The RMA may also decide of its own initiative that a particular kind of injury, disease or death ought to be investigated to find out whether a SoP may be determined in respect of it (s. 196B(4)(b)).
Whether the investigation arises as a result of a request or on its own initiative, the RMA must publish a notice in the Government Gazette that it intends to carry out that investigation and inviting interested persons or organisations authorised to make written submissions under s. 196F(1) to do so (s. 196G(1)). If, after carrying out an investigation, it is of the view that there is sound medical-scientific evidence indicating that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the Authority must determine a SoP in respect of that kind of an injury, disease or death as soon as practicable.(s. 196B(5)). If that evidence is insufficient to allow it to do so, the RMA must state in writing that it does not propose to make a SoP and give reasons for its decision (s. 196B(6)).
A SoP may be reviewed by the RMA in certain circumstances as may a decision that it does not propose to make a SoP. A person or body specified in s. 196E may ask it to do so or the RMA may do so if it thinks that there are grounds for such a review. It may also be directed by the Specialist Medical Review Council ("Review Council") under s. 196W(7) to do so (s. 196B(7)). If it decides of its own accord or receives a request or direction, the Authority must, subject to certain provisos set out in s. 196C(4) in relation to a request from a person or body specified in s. 196E, carry out an investigation to find out if there is new information. That new information must, in the circumstances of this case, relate to how the injury may be suffered, the disease may be contracted or the death may occur, or the extent to which the disease, injury or death may be war-caused (s. 196B(7)(d) and (e)).
If, after the investigation, the RMA is of the view that there is a new body of sound medical-scientific evidence that, together with that body of evidence it had previously considered, justifies the making of a SoP, or an amendment of a SoP, the Authority must determine a SoP, amend a SoP or revoke the SoP and determine a new SoP in respect of the particular kind of injury, disease or death under consideration (s. 196B(8)). Should the RMA be of the view after the investigation, that there is no such new body of sound medical-scientific evidence, or that the new evidence available is insufficient to justify the making of a SoP or amending a SoP, it must make a written declaration, supported by reasons, that it does not propose to make a SoP or amend an existing SoP (s. 196B(9)).
If the Review Council directs the RMA to make a SoP or amend a SoP, it must do so (ss. 196(10), (11) and (12)). Those persons who may request the RMA to make a SoP may also request the Review Council to review the contents of a SoP or the RMA's decision to determine not to make a SoP (s. 196Y) or to review the RMA's decision not to carry out an investigation (s. 196Z).
Once made, a SoP is a disallowable instrument for the purposes of s. 46A of the Acts Interpretation Act 1901 ("AI Act") (s. 196D). Section 46A provides that ss. 48, 48A, 48B, 49 and 50 apply in relation to the instrument as if, among other matters, references to regulations were references to the instrument, references to a regulation were references to a provision of the instrument and references to repeal were references to revocation (ss. 46A(1)(a)(i), (ii) and (iii)). Only s. 50 of the AI Act is relevant in the context of this case. It provides that:
"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 effecting the repeal:
(a)affect any right, privilege, obligation or liability acquired, 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 proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;
and any such investigation, legal proceeding or remedy 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 authorities regarding the application of the reasonable hypothesis test
The manner in which the provisions of ss. 120(1) and (3) inter-related prior to the introduction of SoPs was considered by the High Court in the cases of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564. In Byrnes, Mason CJ, Gaudron and McHugh JJ summarised the approach to be adopted in applying those sub-sections:
"The position may be summarized as follows:
(1) First, sub-s(3) of s120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s (1) of s120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis." (page 571)
The SoPs were introduced after the High Court's judgement had been handed down. The manner in which ss. 120(1) and (3) inter-relate with the provisions of a SOP was considered by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261. An appeal from his judgement was dismissed by the Full Court of the Federal Court (Repatriation Commission v Deledio (1998) 83 FCR 82, Beaumont, Hill and O'Connor JJ). After considering the structure of the Act and its various amendments and the judgements of the High Court in Bushell v Repatriation Commission and Byrnes v Repatriation Commission, his Honour concluded:
"Therefore when s 196B(2) says a factor 'must ... exist' and 'must be related to service', it is not interfering with the functions of ss 120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii)(since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
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. For example, in the present case the factors in the SoP include 70 gm/day consumption for at least 20 years. As it happens there was no dispute in the present case that the veteran's intake in fact was of this order. But if the commission were to deny this, then s 120(1) requires the commission to prove beyond reasonable doubt that the veteran's intake was in fact less than the SoP level. Put another way, the SoP system does not have the effect that some of the facts relevant to a claim, viz those facts which coincide with factors set out in an SoP, have to be proved by the claimant. Such a view would be inconsistent with the retention of ss 120(1) and 120(3) in the face of the Baume committee's recommendations [in its report entitled "A Fair Go: Report on Compensation for Veterans and War Widows"]. Still less do the 1994 amendments have the effect, as happened in the present case, that the claimant has to prove all the facts raised by the hypothesis." (page 275)
In its judgement on appeal, the Full Court of the Federal Court summarised the course which must be followed in cases involving a SOP. It said:
"… we would restate 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:
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 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 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.
4.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." (pages 97-98)
The Statements of Principle
The first SoP determined by the RMA in relation to polycythaemia vera in relation to operational service was SoP 67 of 1995 ("SoP 67"), which took effect from 20 February, 1995. That SoP was revoked and replaced by SoP 78 with effect from 28 October, 1999. Consequently, SoP 78 was that in effect when the Commission made its decision on 16 May, 2000. For the reasons I gave in Merrell and Repatriation Commission [2001] AATA 413 (unreported, 17 May, 2001), I have concluded that the judgements of the Full Court of the Federal Court require me to review the Commission's decision according to SoP 78 on the basis that it was in effect at the date of its decision.
SoP 78 states that it is about polycythaemia vera and death from polycythaemia vera. In clause 2(b), it specifies that polycythaemia vera is also known as polycythaemia rubra vera and that, for the purposes of the SoP, it means:
"… a chronic myeloproliferative disorder, characterised by abnormal proliferation of haematopoietic bone marrow elements, resulting in an absolute increase in red cell mass, an excess of platelets and white blood cells, and splenomegaly, attracting ICD-10-AM code D45. This definition excludes relative polysythaemia and polycythaemia resulting from hypoxaemia."
The RMA goes on to state in SoP 78 that it is of the view that there is sound medical-scientific evidence that indicates that polycythaemia vera and death from polycythaemia vera can be related to relevant service rendered by veterans (clause 3). In the circumstances of this case, "relevant service" means operational service (clause 8). Clause 5 provides:
"The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting polycythaemia vera or death from polycythaemia vera with the circumstances of a person's relevant service is:
(a)inability to obtain appropriate clinical management for polycythaemia vera."
Clause 6 is also relevant when it provides that:
"Paragraph 5(a) applies only to material contribution to, or aggravation of polycythaemia vera where the person's polycythaemia vera was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph … 9(1)(e) … of the Act refers."
Clause 4 provides that, subject to clause 6, the factor in clause 5 must be related to any relevant service rendered by the person.
THE SUBMISSIONS
In the first instance, Mr Matthews' submissions focused on the language used in clauses 5 and 6 of SoP 78 and, in particular, on what he saw as an internal contradiction in the drafting of clause 6. The word "during", he submitted, suggested a temporal connection between a veteran's suffering polycythaemia vera and his or her relevant service whereas the words "but not arising out of" contradicted any such suggestion. This leads to the conclusion that the SoP contemplates that a veteran's polycythaemia vera may have been contracted or suffered during his or her service but could not, and would not, arise directly out of his or her relevant service. Clause 6 limits the factor to that service related to a material contribution to, or to an aggravation of, the veteran's polycythaemia vera.
Mr Matthews submitted that, in stipulating in clause 5 the factor that must "as a minimum" exist before it can be said that a reasonable hypothesis has been raised, SoP 78 admits of factors beyond the minimum. It has been drafted to take account of the lack of medical knowledge at the time of service. That lack of knowledge related to the connection between exposure to nuclear radiation and polycythaemia vera. Therefore, if the onset of Mr Collins' polycythaemia vera can be traced to, or fairly be said to be connected with, his relevant service (and that connection occurred during his relevant service), then his subsequent failure or inability to obtain appropriate clinical management for his condition on the grounds of ignorance or any other reason must be regarded as not being inconsistent with SoP 78.
Mr Hanks submitted that, if a veteran relies on his or her inability to obtain appropriate clinical management, then paragraph 5(a) provides that his or her inability must, as a minimum, meet three criteria: it must be causally related to the person's relevant service; it must occur after the disease was suffered or contracted; and it must materially contribute to or aggravate the disease. The inability to obtain appropriate clinical management could not be equated with the lack of medical knowledge at the time of the person's relevant service. In Mr Hanks' submission, SoP 78 only recognises one situation in which polycythaemia vera can be related to a person's war service. It excludes the possibility of a causal relationship between the contraction of the condition and war service. At the same time, it accepts that inadequate treatment (because of the conditions of service) of a person's existing polycythaemia vera, if it contributes to the progress of the condition or makes it worse, will be sufficient to relate the condition (in its developed or aggravated form) to his or her war service.
CONSIDERATION
In this case, there is no question that Mr Collins is suffering from polycthaemia vera and that the incapacity from which he suffers is as a consequence of that disease. Consequently, the issues raised in the cases of Meehan v Repartiation Commission [2001] FCA 597 (unreported, Wilcox J, 25 May, 2001) and Budworth v Repatriation Commision [2001] FCA 317 (unreported, Madgwick J, 29 March, 2001), on the one hand, and Benjamin v Repatriation Commission [2001] FCA 522 (unreported, Whitlam J, 30 May, 2001), on the other, regarding the appropriate standard of proof to determine those matters are not relevant.
Applying s. 120(1), I must find that the injury or disease (whatever it may be) causing Mr Collins' symptoms is war-caused unless it is established beyond reasonable doubt that there is no sufficient ground for making that determination. That is the effect of s. 120(1) and immediately raises the reasonable hypothesis test set out in s. 120(3). I must consider whether the facts raised by Mr Collins point to a reasonable hypothesis. Proof of the facts is not in issue at this point. In this case, the hypothesis is yet to be revealed in its entirety but part of it must be that the injury suffered by Mr Collins or the disease he contracted related to his service in one of the ways set out in s. 9. That is to say, the facts raised by Mr Collins must point to his injury or disease having been caused by operational service or eligible war service he rendered in one of the ways set out in that section.
The hypothesis will not be reasonable if it is contrary to proved or known scientific facts or if it is obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous. In so far as claims lodged after 1 June, 1994 are concerned, the hypothesis must be not inconsistent with the applicable SoP. If it should prove to be the case that the hypothesis is reasonable, Mr Collins' claim will succeed unless one or more of the facts necessary to support it are disproved beyond reasonable doubt or the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
In so far as consistency with a SoP is concerned, I must look to any SoP that may be applicable. In Mr Collins' circumstances, I need consider only SoP 78. As Heerey J said of the RMA's function in Deledio, that function is to identify the minimum factors which can connect the condition of polycythaemia vera with the circumstances of Mr Collins' service. It is clear from s. 196B(2) in relation to operational service that the RMA can only determine a SoP identifying those minimum factors if it first forms the view that there is sound medical-scientific evidence indicating that a particular kind of injury, disease or death can be related to service. It can only find that the particular kind of injury, disease is related to service if there is one or other of the elements of causation between it and the veteran's service set out in s. 196B(14). The elements of causation set out in s. 196B(14) mirror those in s. 9 prescribing when an injury or disease shall be taken to be war-caused. Like s. 9, s. 196B(14) does not prescribe that, before it may determine a SoP, the RMA must be of the view that there is sound medical-evidence indicating that a particular kind of injury, disease or death can be related to service by each of the elements of causation set out in that sub-section. It may be of the view that there is sound medical-scientific evidence indicating that a particular injury or disease can be related to, in this case, a veteran's operational service in only one of the ways set out in s. 196B(14). In that case, the effect of s. 196B(3), when read with s. 196B(14) is that the RMA may link the factor or factors that must exist as a minimum with one or more of the causal factors set out in s. 196B(14).
The effect of s. 120A(3) is that Mr Collin's hypothesis must be upheld by SoP 78. As required by s. 196B(2)(d), the RMA has set out in SoP 78 the factor that must exist as a minimum before Mr Collins' hypothesis can be said to fit the template it prescribes. In setting out "the factors that must as a minimum exist" and "which of those factors must be related to service" (s. 196(2)(e)), the RMA is not setting out factors that may be ignored if the hypothesis is based on factors that do not reflect those minimum factors. That is so even though it may be argued that the factors relied on in a particular case establish a "stronger" causal connection between the condition suffered by a veteran and his or her service than do the minimum factor or factors set out in the SoP. The hypothesis relied upon must, at some point, rely on the factor or factors set out in the SoP as a minimum. It is not limited to those factors but, if it is to be upheld by a SoP, must rely on one or other of the factors in the manner set out in the relevant SoP.
In the case of SoP 78, that factor is Mr Collins' inability to obtain appropriate clinical management for polycythaemia vera. It is not enough, however, that the material points to his having had such an inability. Without the qualification that it is subject to clause 6, the effect of clause 4 would be that the inability to obtain appropriate clinical management referred to in clause 5 must be related to any relevant service Mr Collins rendered. That would mean that the material must point to one or more of the causal connections between the injury or disease and the inability set out in s. 196B(14). There is, however, a qualification to clause 5 in SoP 78. The effect of that qualification is that the factor in paragraph 5(a) applies only where the material points to the causal connection set out in s. 9(1)(e). That is so because clause 6 of SoP 78 states that paragraph 5(a) applies only to material contribution to, or aggravation of polycythaemia vera where the person's polycythaemia vera was suffered or contracted before or during (but not arising out of) the person's relevant service.
It follows that, before he can be found to have a war-caused injury or war-caused disease in the circumstances of this case, the material must point to Mr Collins' having an inability to obtain appropriate clinical management for a condition of polycythaemia vera, which he suffered or contracted before or during (but not arising out of) his operational service where his inability materially contributed to, or aggravated, his polycythaemia. Having regard to the limited template appearing in SoP 78 and to the RMA's role, it can only be presumed that the RMA is not of the view that there is sound medical-scientific evidence that indicates that polycythaemia vera can be related to a veteran's operational service. In the particular circumstances of Mr Collins' case, it can only be presumed that the RMA is not of the view that there is sound-medical evidence that indicates that polycythaemia vera can be said to arise out of a veteran's operational service. If there is new medical evidence indicating such a connection, it is open to the RMA to review SoP 78.
Before leaving this matter, I observe that the T documents indicate that the VRB never resumed its hearing after adjourning it on 18 July, 1989. That hearing related to a claim initially lodged on 9 June, 1988 and so before the SoP regime that came into effect on 1 June, 1994. If that is indeed the case, then it would seem that the hearing can be resumed and the matter considered without the need to ensure that it is consistent with SoP 78. If that matter is adjourned and not resolved, it would follow from s. 14(5) that the claim leading to the present proceedings has not been validly made as the earlier claim has not been finally determined.
For the reasons I have given, I remit the matter to the Commission to determine the applicant's claim in accordance with these reasons.
I certify that the fifty one preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)
Signed: ..........................................
AssociateDates of Hearing 12 February, 2001
Date of Decision 27 August, 2001
Counsel for the Applicant Mr T Matthews
Solicitor for the Applicant Cusack Galvin & James
Counsel for the Respondent Mr P Hanks QC; Miss E Ford
Solicitor for the Respondent Australian Government Solicitor
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