Connors v Repatriation Commission

Case [2000] FCA 783


FEDERAL COURT OF AUSTRALIA

Connors v Repatriation Commission [2000] FCA 783

JOHN WILLIAM THOMAS CONNORS v REPATRIATION COMMISSION
V 380 of 1998

KENNY J
MELBOURNE
13 JUNE 2000


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 380 OF 1998

BETWEEN:

JOHN WILLIAM THOMAS CONNORS
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

KENNY J

DATE:

13 JUNE 2000

PLACE:

MELBOURNE

CORRIGENDA

1.In paragraph 19, line 7 of the Reasons for Judgment of Justice Kenny handed down on 13 June 2000, replace reference to “Commission” and insert “respondent”.

AMANDA FOLEY

Associate to Justice Kenny

13 June 2000


FEDERAL COURT OF AUSTRALIA

Connors v Repatriation Commission [2000] FCA 783

VETERANS AFFAIRS – War-caused injury or disease – appeal from decision of Administrative Appeals Tribunal – whether veteran’s condition of lumbar spondylosis was war-caused – whether Statement of Principles upholds a hypothesis connecting veteran’s disease with service where the material does not raise or point to an essential factor.

Administrative Appeals Tribunal Act 1975, s 44(1)
Veterans’ Entitlements Act 1986, s 9, s 13, s 119, s 120, s 120A, s 196B(3)

Repatriation Commission v Deledio (1998) 83 FCR 82 applied
Deledio v Repatriation Commission (1997) 25 AAR 396 referred
Repatriation CommissionvO’Brien (1985) 155 CLR 422 referred
East v Repatriation Commission (1987) 16 FCR 517 applied
Repatriation Commission v Bey (1997) 79 FCR 364 discussed
Bushell v Repatriation Commission (1992) 175 CLR 408 discussed
Repatriation Commission v McKenna (1998) 28 AAR 7 referred
McKenna vRepatriation Commission v McKenna (1999) 86 FCR 144 applied
Repatriation Commission v Gosewinckel [1999] FCA 1273 followed
Byrnes v Repatriation Commission (1993) 177 CLR 564 discussed
Repatriation Commission v Stares (1996) 66 FCR 594 referred

Shelton v Repatriation Commission (1999) 85 FCR 587 referred

JOHN WILLIAM THOMAS CONNORS v REPATRIATION COMMISSION
VG 380 of 1998

KENNY J
MELBOURNE
13 JUNE 2000


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 380 OF 1998

BETWEEN:

JOHN WILLIAM THOMAS CONNORS
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

KENNY J

DATE OF ORDER:

13 JUNE 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.        There be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 380 OF 1998

BETWEEN:

JOHN WILLIAM THOMAS CONNORS
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

KENNY J

DATE:

13 JUNE 2000

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. The applicant, Mr John Connors, appeals, pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), from part of the decision of the Administrative Appeals Tribunal (“the AAT”) given on 13 July 1998. In particular, he appeals from that part of the Tribunal’s decision which affirmed a decision that his lumbar spondylosis was not war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (“the VE Act”).

    factual background

  2. The relevant facts, as found by the Tribunal, are as follows. Mr Connors,…

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Details
AGLC
Connors v Repatriation Commission [2000] FCA 783
Case
[2000] FCA 783
Decision Date

CaseChat Overview and Summary

Mr John Connors appeals from a decision of the Administrative Appeals Tribunal (AAT) that his lumbar spondylosis was not war-caused within the meaning of the Veterans’ Entitlements Act 1986. Mr Connors served in the Australian Army during two periods, the second of which included operational service in the South West Pacific. In 1945, while running in the dark to a church service, Mr Connors fell into a trench, striking his chest against a wall. He experienced chest pain for about 10 or 11 days but did not seek medical treatment. In 1993, Mr Connors was diagnosed with crush fractures of his thoracic vertebrae. Since 1994, he has suffered attacks of pain and restricted mobility resulting from lumbar spondylosis. The Tribunal found that the evidence did not point to a hypothesis that fitted the template of the standard of proof, and therefore, Mr Connors’ claim for a pension for lumbar spondylosis had to fail.

The court had to decide whether the Tribunal's decision that Mr Connors' lumbar spondylosis was not war-caused was lawful. The primary issue was whether the Tribunal had erred in requiring each element of the hypothesis to be established by evidence. The court examined the relevant case law and found that determining the reasonableness of a hypothesis does not involve making findings of fact. The court concluded that the Tribunal did not make an error of law in deciding that, as the material before it did not point to a hypothesis that fitted the template of the standard of proof, then, by virtue of s 120A(3), it could not conclude that the hypothesis advanced by Mr Connors was a reasonable one. Therefore, Mr Connors' claim for a pension for lumbar spondylosis had to fail.

The court found that the AAT did not make an error of law in deciding that, as the material before it did not point to a hypothesis that fitted the template of the standard of proof, then, by virtue of s 120A(3), it could not conclude that the hypothesis advanced by Mr Connors was a reasonable one and, for that reason, Mr Connors’ claim for a pension for lumbar spondylosis had to fail. The appeal should be dismissed. There will be no order as to costs.

ORDERS:
1. The appeal be dismissed.
2. There be no order as to costs.

Orders

Orders of the court

1. The appeal be dismissed.

2. There be no order as to costs.

Background

Background to the litigation

The applicant, Mr John Connors, appeals, pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), from part of the decision of the Administrative Appeals Tribunal (“the AAT”) given on 13 July 1998. In particular, he appeals from that part of the Tribunal’s decision which affirmed a decision that his lumbar spondylosis was not war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (“the VE Act”). factual background The relevant facts, as found by the Tribunal, are as follows. Mr Connors, who was born on 25 March 1921, served in the Australian Army between 5 August 1941 and 3 November 1941 and between 16 December 1941 and 6 May 1946. During his second period of service, he served in Australia and in the South West Pacific. Accordingly, in that period, he is to be taken as having rendered operational service for the purposes of the VE Act. In 1945, Mr Connors was stationed at Ravenshoe in North Queensland as a member of a field ambulance unit. On a date in 1945, shortly before he was to be deployed from Ravenshoe to Morotai, he decided to attend an evening church service. As the service had already begun, he and a comrade ran “flat out” to the service across a paddock, instead of walking around its perimeter. It was dark. While running, Mr Connors fell into a trench (some 6 or 7 feet deep and some distance wide), striking his chest against the far wall before landing on his feet. The Tribunal wrote at [19]:He said he felt nauseous and was dazed and confused. He regained his composure and attempted to climb out of the trench but could do so only with the assistance of his friend. Thereafter he walked to the church service, participated in it, walked back to his barracks at the completion of the service and spent most of the next day preparing and packing his kit for embarkation to Morotai. Mr Connors said that he had severe pain in his chest and recalled that he was unable to carry his kit because of its strapping rubbing against his chest. He said he suffered chest pain for about 10 or 11 days thereafter. Upon arrival in Morotai 22 days later, he did not have chest pain. Mr Connors did not seek medical treatment as a result of the fall. He could not recall having suffered any back pain after the incident. In 1993, Mr Connors learned that he had sustained crush fractures of his thoracic vertebrae. According to his radiologist, the fractures were old and could have been caused by a fall. Mr Connors could not recall sustaining any serious falls aside from the incident at Ravenshoe. For about three years before the fractures were diagnosed, he reported pain in his back emanating from the area below the fractures. Since 1994, he has suffered attacks of pain and restricted mobility resulting from lumbar spondylosis, a degenerative condition affecting the lumbar segment of the spine. legislative framework Pursuant to s 13 of the VE 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 a war-caused disease. In particular, s 9(1)(a) provides that for veterans, who like Mr Connors, have rendered operational service, an injury or disease is deemed to be “war-caused” for the purposes of the VE Act if the injury or disease “resulted from an occurrence that happened while the veteran was rendering operational service”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KENNY J
In any event, irrespective of s 120A(3), there is nothing in Byrnes, Bushell, or Bey that would lead me to accept the proposition that a hypothesis need not be supported by evidence pointing to each individual element of it in order to be reasonable for the purposes of s 120(3). As Byrnes at 571-2 shows, if a hypothesis assumes the existence of a fact and is reasonable, then the assumption must be one that is pointed to by the material before the decision-maker. This was also the case in Repatriation Commission v Stares: see (1996) 66 FCR 594 at 601. In Bey, the Commission submitted that the primary judge was wrong in failing to find that the Tribunal had erred in requiring each element of the hypothesis to be established by evidence. In a joint judgment, four members of the Full Court responded to this, at 373, as follows:The hypothesis was that the respondent’s physical work and sporting activities in Vietnam caused or contributed to his disease. The Tribunal did not require each element of that hypothesis to be established by evidence. Rather, it examined the evidence to determine whether there was any reasonable basis therein for the hypothesis. There is nothing in this passage, however, that would support the view that there need not be material pointing to each element of a hypothesis. The observation that each element need not be established by the evidence is, as I read it, simply a restatement of the accepted proposition that determining the reasonableness of a hypothesis does not involve making findings of fact: see Deledio at 412. conclusion For the reasons stated, the AAT did not make an error of law in deciding that, as the material before it did not point to a hypothesis that fitted the template of the SoP, then, by virtue of s 120A(3), it could not conclude that the hypothesis advanced by Mr Connors was a reasonable one and, for that reason, Mr Connors’ claim for a pension for lumbar spondylosis had to fail. The appeal should be dismissed. There will be no order as to costs.

Ratio Decidendi

Legal Principle Established

Established by: KENNY J

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