Dempsey and Military Rehabilitation and Compensation Commission (Compensation)

[2020] AATA 4123

Dempsey and Military Rehabilitation and Compensation Commission (Compensation) [2020] AATA 4123 (14 October 2020)

Division:GENERAL DIVISION

File Number(s):2020/0711      

Re:Dominic Dempsey  

APPLICANT

Military Rehabilitation and Compensation CommissionAnd  

RESPONDENT

DECISION

Tribunal:Mr S. Webb, Member

Date:14 October 2020

Place:Canberra

Application for adjournment refused. The Tribunal is not barred from determining liability in respect of Mr Dempsey’s claim for compensation when deciding his application.

………………………………..

Mr S. Webb, Member

MILITARY COMPENSATION – claimed service injury – anosmia – defence service – reasonable satisfaction – statement of principles – bar on deciding claim where Repatriation Medical Authority has given Notice of an investigation – Tribunal jurisdiction where decision under review made in excess of power – no bar on proceeding – Tribunal has jurisdiction

Legislation

Military Rehabilitation and Compensation Act 2004, s 23, 27, 332, 335, 339, 341

Veterans Entitlements Act 1986, s 196B, 196G

Cases

Bropho v Western Australia [1990] HCA 24

Carr v Western Australia [2007] HCA 47

Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56

Coco v R [1994] HCA 15

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26

IW v City of Perth [1997] HCA 30Plaintiff M47-2012 v Director General of Security [2012] HCA 46

Stingel v Clark [2006] HCA 37

Wilson v Wilson's Tile Works Pty Limited [1960] HCA 63

Secondary Materials

Repatriation Medical Authority, ‘Notice of Investigation – Section 196G of the Veteran’s Entitlement Act 1986’, Commonwealth of Australia Gazette, 26 October 2018.

REASONS FOR DECISION

Mr S. Webb, Member

14 October 2020

1. Dominic Dempsey sustained a viral infection during a period of defence service in the RAAF reserves. He then suffered from anosmia – he lost his sense of smell. He claimed compensation for a service injury. The claim was refused by primary determination. This decision was affirmed on review by the Veterans’ Review Board (VRB). Mr Dempsey applied to this Tribunal for review.

2. In the course of proceedings, the application was listed for hearing. Prior to the hearing, the respondent sought an adjournment on grounds that the Tribunal is barred from deciding the application by operation of s 339 of the Military Rehabilitation and Compensation Commission 2004 (MRCA). As will appear, this provision bars the Military Rehabilitation and Compensation Commission (the Commission), and on review the VRB and this Tribunal, from determining a claim in certain circumstances. From this it follows, if the respondent is correct, that there is an ancillary issue concerning the validity of the decision made by the VRB on which the Tribunal’s jurisdiction is founded – if the VRB made a decision in excess of power, does the Tribunal have jurisdiction to review it?

3. An interlocutory hearing was listed to deal with the application for adjournment and related issues.

4. I heard the parties on these matters and allowed time for further instructions to be obtained. Thereafter, I gave an oral ruling at the conclusion of the interlocutory hearing and informed the parties that I would provide written reasons forthwith. These are those reasons.

5. The relevant facts can be shortly stated.

6. There is no dispute that Mr Dempsey suffered from a viral upper respiratory tract infection during a period of peacetime defence service in 2018. There is also no dispute that Mr Dempsey has anosmia.

7. On 12 December 2017 Mr Dempsey lodged a claim for compensation in respect of anosmia as a service injury or a service disease.[1]

   [1] T7.

8. Under s 23 and s 27 of the MRCA, liability for a service injury or a service disease is to be determined applying the standard of proof set out in s 335, namely in the present circumstances, the reasonable satisfaction standard. Under s 339, which is applicable in the circumstances of Mr Dempsey’s case, reasonable satisfaction is to be assessed by reference to Statement of Principles (SOP) –

   339  Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles

   (1)  This section applies to a claim under section 319 for acceptance of liability under subsection 23(1) or 24(1) for an injury, disease or death that relates to peacetime service.

   Note:          Subsection 335(3) is relevant to these claims.

   (2) If the Repatriation Medical Authority has given notice under section 196G of the Veterans’ Entitlements Act 1986 that it intends to carry out an investigation in respect of a particular kind of injury, disease or death:

   (a)  the Commission is not to determine a claim for acceptance of liability for a person’s injury, disease or death of that kind; and

   (b)  the Commission, the Board or the Tribunal is not to make a decision on the review of:

   (i)  a determination by the Commission on such a claim; or

   (ii)  such a determination as previously affirmed or varied; or

   (iii)  a decision made on a previous review in substitution for a determination referred to in subparagraph (i) or (ii);

   unless or until the Authority:

   (c)  has determined a Statement of Principles under subsection 196B(3) of that Act in respect of that kind of injury, disease or death; or

   (d)  has declared that it does not propose to make such a Statement of Principles.

   (3)  In applying subsection 335(3) to determine a claim, the Commission is to be reasonably satisfied that an injury sustained, or a disease contracted, by a person, or the death of a person, is a service injury, a service disease, or a service death, only if:

   (a)  the material before the Commission raises a connection between the injury, disease or death of the person and some particular defence service rendered by the person while a member; and

   (b)  there is in force:

   (i) a Statement of Principles determined under subsection 196B(3) or (12) of the Veterans’ Entitlements Act 1986; or

   (ii)  a determination of the Commission under subsection 340(3) of this Act; and

   (c)  the material, and the Statement of Principles or the determination (as the case may be), upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.

   (4) Subsection (3) does not apply in relation to a claim for acceptance of liability for a person’s injury, disease or death if the Repatriation Medical Authority has neither determined a Statement of Principles under subsection 196B(3) of the Veterans’ Entitlements Act 1986, nor declared that it does not propose to make such a Statement of Principles, in respect of:

   (a)  the kind of injury sustained by the person; or

   (b)  the kind of disease contracted by the person; or

   (c)  the kind of death met by the person;

   as the case may be.

9. The Repatriation Medical Authority (RMA) determined SOPs in respect of anosmia under s 196B(3) of the Veterans’ Entitlements Act 1986 (VEA) in 2011, namely Instruments No. 118 and No. 119 of 2011. It is SOP 119 of 2011 that is relevant to consider for present purposes.

10. On 19 April 2018 The Commission decided to reject this claim – the original decision.[2]

    [2] T10.

11. Mr Dempsey lodged a further claim seeking review by the VRB.[3]

    [3] T11, T11a and T11b.

12. On 26 October 2018, the RMA published a Notice under s 196G of the VEA of its intention to “carry out investigations under s 196B(7) of the VEA to review the contents of Statements of Principles”.[4] The Notice nominated 42 SOPs in respect of 21 kinds of injury, disease or death, including SOPs 118 and 119 of 2011 in respect of anosmia.

    [4] Repatriation Medical Authority, ‘Notice of Investigation – Section 196G of the Veteran’s Entitlement Act 1986’, Commonwealth of Australia Gazette, 26 October 2018 (Exhibit 1).

13. On 20 November 2020, the VRB decided to affirm the original decision. In so doing, it applied SOP 119 of 2011 and found that Mr Dempsey’s anosmia did not fit the template of the SOP – his claim did not satisfy any of the factors set out in clause 6 of the SOP.[5]

    [5] T22.

14. On 12 February 2020, Mr Dempsey lodged an application for review by this Tribunal.[6]

    [6] T1.

15. A hearing of the application has been set down on 2 to 4 November 2020.

16. On 1 October 2020, the Commission lodged an application for adjournment of the hearing.

17. The interlocutory hearing to deal with this application took place on 13 and 14 October 2020.

18. At the date of this decision, the RMA review has not yet been completed. During the interlocutory hearing I was informed by the Commission’s legal representative that revised SOPs in respect of anosmia are expected to be determined in December 2020, shortly after the presently listed hearing. No evidence was called from the RMA addressing the present status of the RMA’s investigation or any consequential actions that may be taken.

    Is the Tribunal is barred from making a decision about liability?

19. The Commission argues that the language of s 339(2) of the MRCA is crystal clear, without any ambiguity. On the plain language of the section, in the present circumstances where the RMA has given notice of its intention to conduct an investigation in respect of anosmia, the Commission says the Tribunal cannot proceed to decide Mr Dempsey’s application for review – it cannot determine liability against the Commission until the RMA investigation is finalised. Furthermore, the Commission points to s 196B and s 196G of the VEA in support of its contention that an ‘investigation’ by the RMA includes a review of an existing SOP. In the Commission’s submission, the result of an ‘investigation’ of this kind is the determination of a SOP by the RMA or a declaration that it does not intend to make such a SOP. Until the RMA has completed its investigation and determined a new SOP, so the argument goes, the Tribunal is barred from determining liability in respect of Mr Dempsey’s claim, on review

20. Mr Dempsey’s advocate, Mr Dunn, argues that s 339 of the MRCA does not bar the Tribunal from deciding the application. In his submission, while there is no ambiguity in the legislation, it cannot have been intended that a claim could not be decided and mjust be held in effective abeyance in circumstances where the RMA has given notice of an investigation in review of a previously determined SOP. Were that to be so, he argues that unacceptable and unintended delays would be caused, hindering the timely and fair processing of claims such as Mr Dempsey’s, and defeating the beneficial purposes of the legislation.

21. Clearly enough, the issue is one of statutory construction.

22. One must start with the text, context and purposes of the legislation, noting what French CJ and Hayne J said in Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross[7], at [25] to [26]:

    [7] [2012] HCA 56.

    Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative "intention" is to use a metaphor. Use of that metaphor must not mislead. "[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have" (emphasis added). And as the plurality went on to say in Project Blue Sky:

    "Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning."

    To similar effect, the majority in Lacey v Attorney-General (Qld) said:

    "Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts."

    The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.

    A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:

    "Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case." (emphasis added)

    And as the plurality said in Australian Education Union v Department of Education and Children's Services:

    "In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose."

    [footnotes omitted]

23. It is very clear that the SOP scheme established under the VEA is applied for the purposes of the MRCA by operation of s 339 (and other related provisions). At this point it is germane to observe that the SOP scheme is intended to remove uncertainty about medical assessments of service causation and liability in respect of kinds of injury, disease or death.

24. For this purpose, the RMA is given powers in respect of the determination, investigation and review of SOPs. These powers and related procedures are set out in s 196B of the VEA. Clearly enough, the SOP scheme only applies to kinds of injury, disease or death where the RMA has determined an SOP and it does not apply where no such determination has been made. So much is clear when one considers the terms of s 196B and related provisions in Division 1 of Part X1A of the VEA.

25. Under s 196G of the VEA, the RMA must publish notice of its intention to carry out an investigation –

    (1)  As soon as practicable after the Repatriation Medical Authority:

    (a)  has been asked under section 196E to carry out:

    (i)  an investigation; or

    (ii)  a review of a decision of the Authority not to make a Statement of Principles; or

    (iii)  a review of some or all of the contents of a Statement of Principles;

    regarding a particular kind of injury, disease or death; or

    (b)  has decided on its own initiative to carry out such an investigation or such a review;

    the Authority must publish in the Gazette a notice:

    (c)  stating that the Authority intends to carry out an investigation in respect of that kind of injury, disease or death; and

    (d)  inviting persons or organisations authorised under subsection 196F(1) to do so to make written submissions to the Authority.

    (2)  A notice is to specify:

    (a)  the date on which the Authority will hold its first meeting for the purposes of the investigation; and

    (b)  the date by which all submissions must have been received by the Authority.

    (3)  A notice must be published in the Gazette at least 28 days before the date of the first meeting of the Authority.

    (4)  A notice is not invalid merely because it fails to comply with subsection (2).

26. As can be seen, a clear purposive distinction is drawn between ‘an investigation’ (s 196G(1)(a)(i)) and ‘a review’ (s 196G(1)(a)(ii) and (iii)). The former relates to RMA procedure for the purpose of determining an SOP (or making a declaration that no SOP will be determined) in respect of a kind of injury, disease or death where no SOP has previously been determined; whereas the latter relates to RMA procedure for the purpose of review of a previously made SOP or declaration.

27. Nevertheless, albeit rather confusing perhaps, each of these procedures involves the RMA conducting an investigation. The legislation sets out the procedure to be followed, whereby notice must be given specifying the timetable for meetings and submissions (s 196G), and actions taken on completion of the investigation (ss 196B(5), (6), (8) and (9)).

28. Specifically, ss 196B(5) and (6) set out the procedure for RMA action on completion of an investigation into a kind of injury, condition or death where no SOP has previously been determined, and ss 196B(8) and (9) set out the procedure on completion of an investigation in the form of a review of a previously determined SOP. In the former, the RMA must determine an SOP or declare that it does not propose to do so; whereas in the latter, where an SOP has already been determined, the RMA must amend or revoke the SOP or declare that it does not propose to do so.

29. The distinction between ‘an investigation’ and ‘a review’ is reiterated in s 332 of the MRCA by reference to the power of the RMA “to investigate a particular injury, disease or death or review one of its previous decisions about a Statement of Principles”.

30. The terms of s 339(2) of the MRCA refer expressly to “an investigation in respect of a particular kind of injury, disease or death”, adopting the language used in sections of the VEA to which I have referred in respect of ‘an investigation’. There is no express reference in s 339, or in s 338 (a parallel provision dealing with different kinds of service), in respect of ‘a review’ of SOPs or declarations previously determined or declared by the RMA.

31. Furthermore, the bar imposed by s 339(2) is conditional – it applies ‘unless or until’ the RMA ‘has determined a Statement of Principles under s 196B(3)’ of the VEA ‘or’ ‘has declared it does not propose to make such a Statement of Principles’. The express reference to s 196B(3) of the VEA and the language used refer to the determination of an SOP rather than the review of a previously determined SOP.

32. I note that s 196B(7) of the VEA refers to the procedure for review of an SOP previously determined by the RMA. Sections 196B(8) and (9) set out the actions to be taken on finalisation of a such a review investigation –

    (8)  If, after carrying out the investigation, the Authority is of the view that there is a new body of sound medical‑scientific evidence available that, together with the sound medical‑scientific evidence previously considered by the Authority, justifies the making of a Statement of Principles, or an amendment of the Statement of Principles already determined, in respect of that kind of injury, disease or death, the Authority must:

    (a)  determine a Statement of Principles in respect of that kind of injury, disease or death under subsection (2) or (3); or

    (b)  make a determination amending the Statement of Principles determined under subsection (2) or (3) in respect of that kind of injury, disease or death; or

    (c)  make a determination revoking the Statement of Principles determined under subsection (2) or (3), and determine a new Statement of Principles under subsection (2) or (3) in respect of that kind of injury, disease or death;

    as the case requires.

    Note:          For sound medical‑scientific evidence see subsection 5AB(2).

    (9)  If, after carrying out the investigation, the Authority is of the view:

    (a)  that there is no new sound medical‑scientific evidence about that kind of injury, disease or death; or

    (b)  that the new sound medical‑scientific evidence available is not sufficient to justify the making of a Statement of Principles, or an amendment of the Statement of Principles already determined in respect of that kind of injury, disease or death;

    the Authority must make a declaration in writing:

    (c)  stating that it does not propose to make a Statement of Principles, or amend the Statement of Principles already determined (as the case may be); and

    (d)  giving the reasons for its decision.

1. As can be seen, there are three possible outcomes from a review investigation in respect of a previously determined SOP: determining a new SOP under s 196B(2) or (3); amending a previously determined SOP; declaring that no new SOP will be made or that the existing SOP will not be amended; or revoking the previously determined SOP and making a new SOP. These are to be contrasted with the contingent factors set out in s 339(2)(c) and (d) of the MRCA, in which no reference is made to amending or revoking an existing SOP.

2. To my mind, there is no ambiguity in the legislation. While the language used may be a little confusing at first blush, when the interlaced provisions are read in context, and on careful examination, the meaning is quite clear -  “...the meaning of any statutory provision..., and thus its range of operation, must be determined ‘by reference to the language of the instrument viewed as a whole”.[8]

   [8] Plaintiff M47-2012 v Director General of Security [2012] HCA 46, per Hayne J at [162], citing Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320.

3. The legislation provides for the RMA to determine SOPs setting out factors that must exist and be related to the particular service of the person before it can be said, on the basis of the applicable standard of proof, that the injury, disease or death is connected to the circumstances of the person’s service. Where no SOP has been determined and the RMA publishes a Notice under s 196G of the VEA that it intends to investigate a particular kind of injury, condition or death, s 338(2) and s 339(2) of the MRCA raise a barrier to determination of claims concerning such an injury, condition or death by the Commission, or on review by the Commission, the VRB or this Tribunal, unless and until an SOP is determined under s 196B(3) or a declaration made that no such SOP will be determined. In such circumstances, the bar applies to determination of an acceptance of liability for a person’s injury, condition or death of that kind.

4. Where a SOP concerning the particular kind of injury, condition or death has already been determined under s 196B(3), no barrier arises under s 338(2) or s 339(2), and the claim is to be assessed and liability determined by application of the current SOP at the time.

5. As s 341 of the MRCA makes very clear, when deciding a claim, the current SOP must be applied and, importantly, (unlike under the VEA), s 341(3) provides that –

   To avoid doubt, it is declared that no right, privilege, obligation or liability is acquired, accrued or incurred that would permit the Commission, the Board or the Tribunal, in making a decision on the reconsideration or review, to apply any Statement of Principles that is no longer in force.

6. There is no provision made for suspension of an SOP during the period of an RMA review investigation in respect of the kinds of injury, disease or death the SOP covers.

7. This construction is consistent with the plain language of the legislation and it serves the purposes of the SOP scheme the legislation provides. It ensures that where the RMA gives notice of its intention to investigate a kind of injury, disease or death where no SOP has previously been determined, no claim relating to that kind of injury, disease or death can be determined by the Commission, or by the VRB or this Tribunal on review, until the investigation is finalised and an SOP determined or a declaration made that no such SOP will be determined. Where an SOP has previously been determined, the integrity and force of the SOP scheme applies, without break, during the period of an RMA review investigation thereby ensuring that claims are decided under the current SOPs that have been determined under s 196(3) of the VEA, as amended or revoked and replaced consequent to RMA review investigations from time to time.

8. If the intention of the Parliament was to bar determination of all claims relating to kinds of injury, disease or death being investigated by the RMA, including kinds of injury, disease or death covered by a previously determined SOP, one would expect an express provision to support it, without ambiguity or resort to inference;[9] but on any fair reading of s 339(2) of the MRCA, it does not reach so far. Had a broader effect been intended it would have been a simple matter to say so, by expressly referring to review and amendment or revocation of an existing SOP under s 196B(8) for example. By way of further example, on the Commission’s reading, all claims relating to kinds of injury, disease or death subject to an RMA investigation would be held in abeyance for the duration of an RMA investigation, even where an SOP had previously been determined. This would effectively suspend operation of SOPs that otherwise remain legally effective and in force without amendment or revocation. There is no authority or express provision for any such effect. This lends strong support to a natural reading of s 339(2), rather than the broader reading for which the Commission contends.

   [9] Bropho v Western Australia [1990] HCA 24, per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ at [13].

9. Furthermore, as I have said, s 341 of the MRCA requires a current SOP to be applied and it serves to curtail any right, privilege, obligation or liability that otherwise may have been acquired, accrued or incurred in respect of any previously determined SOP. The effect of the reading contended for by the Commission would extend this curtailment to the date on which the RMA gives Notice of an intention to conduct an investigation in review of an existing SOP. Just as the Commission, the VRB and this Tribunal are bound to apply the current SOP, a claimant has a right to have his or her claim determined under such an SOP that is currently in force according to law. The principle that the curtailment of established rights, albeit statutory in nature, should not be inferred from imprecise language, but rather that “intention must be clearly manifested by unmistakable and unambiguous language”[10] is apposite here.

   [10] Coco v R [1994] HCA 15, per Mason CJ, Brennan, Gaudron and McHugh JJ at [10].

10. Mr Dempsey argues that the construction pressed by the Commission would result in delays that could not have been intended. I note in passing that the RMA review of SOP 119 of 2011 has been on foot for more than 2 years. Albeit that such considerations do not bear upon the proper construction of the statute, this serves to exemplify the effect of the reading for which the Commission contends.

11. The preferred construction strikes a balance between holding claims in abeyance while the RMA conducts an investigation in respect of a particular kind of injury, disease or death for the purposes of deciding if there is sound medical‑scientific evidence on which it can rely to determine a Statement of Principles under subsection (2) or (3) and, where an SOP has previously been determined and the RMA conducts a review investigation into that SOP and the kinds of injury, disease or death it addresses, proceeding to determine claims by applying the current SOP that is in force until such time as it is amended or revoked by the RMA.

12. That said, however, there is some force to the Commission’s interpretation insofar as it is possible to read the legislation in the manner contended for. If one accepts this is so, and to do so requires an unduly broad reading of the express reference to s 196B(3) of the VEA in s 339(2) of the MRCA, in effect importing meaning from ss 196(8) and (9) of the VEA, then it may be that ambiguity arises. There are two things to say on this point.

13. Firstly, no party argued that ambiguity exists. I note that the Tribunal is not bound by the submissions of the parties and, in any event, I ensured each party had an adequate opportunity to make submissions and be heard on this point.

14. Secondly, the VEA and the MRCA are beneficial or remedial in nature. If there is ambiguity in the text of beneficial or remedial legislation, such that two readings or interpretations are reasonably open, the more liberal or favourable construction should be adopted. The principle established in workers’ compensation law, which in some regards is analogous to compensatory aspects of the VEA and the MRCA, was shortly stated by Fullagar J in his dissenting judgement in Wilson v Wilson’s Tileworks Pty Ltd.[11] Furthermore, while beneficial or remedial legislation of this kind should be given a liberal construction, this does not embrace a construction that is unreasonable or unnatural when all the provisions of the statute are considered.[12] This is not a matter of torturing language in the search for meaning or introducing words to the legislative text in pursuit of perceived purpose or intent. Where, as here, the purpose of the legislation is reasonably clear, the question is how far does the legislation go in pursuing that purpose.[13]

    [11] Wilson v Wilson's Tile Works Pty Limited [1960] HCA 63, per Fullagar J at [7].

    [12] IW v City of Perth [1997] HCA 30, per Brennan CJ and McHugh J at [21] and Kirby J at [58]; Stingel v Clark [2006] HCA 37 per Gleeson CJ, Callinan, Heydon and Crennan JJ at [26].

    [13] Carr v Western Australia [2007] HCA 47 per Gleeson CJ at [5]-[7].

15. I am not persuaded that s 339(2) of the MRCA, when fairly read, goes so far as the Commission suggests.

16. Furthermore, if the Commission’s construction were to be accepted and ambiguity arises, such that a more beneficial or liberal construction should be adopted, in those circumstances, I would not adopt a different construction than that which I have set out above.

17. Finally on this issue, when one considers the terms of the Notice published by the RMA on 28 October 2018, two things are immediately clear. Firstly, the Notice refers to 42 SOPs in respect of 21 conditions. And secondly, the Notice refers to the RMA’s intention to ‘carry out investigations under subsection 196B(7) of the VEA’. That section is in the following terms –

    (7)  If the Authority:

    (a)  is asked under section 196E to review:

    (i)  some or all of the contents of a Statement of Principles; or

    (ii)  a decision of the Authority not to make a Statement of Principles in respect of a particular kind of injury, disease or death; or

    (b)  thinks that there are grounds for such a review; or

    (c)  is directed by the Review Council under subsection 196W(7) to carry out an investigation in respect of a particular kind of injury, disease or death;

    the Authority must, subject to subsection 196C(4) and section 196CA in a case where paragraph (a) applies, carry out an investigation to find out if there is new information available about:

    (d)  how the injury may be suffered or sustained, the disease may be contracted or the death may occur; or

    (e)  the extent (if any) to which:

    (i)  the injury, disease or death may be war‑caused or defence‑caused; or

    (ii)  the injury, disease or death may be a service injury, a service disease or a service death.

    Note 1:       For war‑caused see sections 8 and 9.

    Note 2:       For defence‑caused see section 69.

    Note 3:       For service injury, service disease and service death see section 196KA. (These definitions are for the purposes of the MRCA.)

18. Quite clearly, the investigations intended by the RMA are each in the form of ‘a review’ in respect of ‘the contents’ of each of the nominated SOPs, addressing the matters set out in s 1967B(7)(d) and (e) of the VEA. Applying the procedure set out in s 196B of the VEA, once the RMA investigations are finalised, the actions it must take are set out in ss 196B(8) or (9), whichever applies in the circumstances. These actions do not include determining an SOP under s 196B(3).

19. Thus, there is nothing in the factual circumstances of this case, thus far, that raise anything inconsistent with the construction of the legislation I have set out above.

20. I note the submissions of the parties in respect of what may be expected from the RMA investigation and review of the SOP 119 of 2011. These were largely speculative and not of assistance. The issues of construction are not to be determined or affected in any way by considerations of favourability or otherwise in respect of any current or prospective SOP.

21. The second issue concerning the invalidity of the VRB decision and the Tribunal’s jurisdiction does not arise, therefore. I am satisfied that the Tribunal has jurisdiction and the proceedings should continue.

22. I am not persuaded that the prospect of the RMA issuing a revised SOP, possibly in December 2020, is sufficient ground to grant the adjournment sought. From a practical perspective, as set out in these reasons, the Tribunal is bound to apply the current SOP in force at the time it makes a decision in this matter.

23. In conclusion, the application for adjournment is refused. The Tribunal is not barred from determining liability in respect of Mr Dempsey’s claim.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Member Simon Webb.

........................................................................

Associate

Dated: 15 October 2020

Date of hearing:   13-14 October 2020

Applicant’s Advocate:   Mr Ross Dunn, Veteran’s Support Centre  

Solicitor for Respondent:   Mr Luke Woolley, Sparke Helmore