FEDERAL COURT OF AUSTRALIA
Ellis v Repatriation Commission [2014] FCA 847
Citation: Ellis v Repatriation Commission [2014] FCA 847 Appeal from: Ellis v Repatriation Commission [2013] AATA 433 Parties: NORA ELLIS v REPATRIATION COMMISSION File number: VID 721 of 2013 Judge: GORDON J Date of judgment: 11 August 2014 Catchwords: ADMINISTRATIVE LAW – veteran’s entitlements – widow’s pension claim – whether tribunal misconceived/misunderstood its function when applying s 120(3) of the Veterans’ Entitlements Act 1986 (Cth) – whether tribunal considered the hypothesis put forward by the applicant Legislation: Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)Cases cited: Anderson v Director General of the Department of Environmental and Climate Change (2008) 251 ALR 633
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59
Bull v Repatriation Commission (2001) 188 ALR 756
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 565 564
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Connors v Repatriation Commission (2000) 59 ALD 61
Deledio v Repatriation Commission (1997) 47 ALD 261
East v Repatriation Commission (1987) 16 FCR 517
Elliott v Repatriation Commission (2002) 73 ALD 377
Ellis v Repatriation Commission [2013] AATA 433
Forrester v Repatriation Commission [2013] FCA 898
Hill v Repatriation Commission (2005) 218 ALR 251
LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Glanville (2010) 114 ALD 616
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Warren (2008) 167 FCR 511
Tunks v Repatriation Commission (2008) 102 ALD 274
Victoria Police Toll Enforcement v Taha; State of Victoria v Brookes [2013] VSCA 37Date of hearing: 27 May 2014 Date of last submissions: 12 June 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 86 Counsel for the Applicant: FC Spencer Solicitor for the Applicant: Williams Winter Solicitors Counsel for the Respondent: C Dowsett Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 721 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: NORA ELLIS
ApplicantAND: REPATRIATION COMMISSION
Respondent
JUDGE:
GORDON J
DATE OF ORDER:
11 AUGUST 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The decision of the Administrative Appeals Tribunal be set aside and the matter remitted to the Tribunal differently constituted to be determined according to law.
2.The Respondent pay the Applicant’s costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).
IN THE FEDERAL…
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CaseChat Overview and Summary
In Ellis v Repatriation Commission, the widow of a deceased veteran sought to challenge the decision of the Administrative Appeals Tribunal (AAT) concerning her claim for a pension under the Veterans’ Entitlements Act 1986 (Cth). The central issue was whether the AAT had misconceived or misunderstood its function when applying section 120(3) of the Act, particularly in relation to the consideration of a hypothesis connecting the veteran's service with his death. The applicant argued that the AAT failed to properly consider the hypothesis put forward regarding the veteran's diabetes mellitus and malignant neoplasm of the liver as related to his service.
The legal issues revolved around the correct interpretation and application of section 120(3) of the Act and the Deledio steps in the context of veteran's entitlements. The applicant contended that the AAT misapplied the law by requiring more precise evidence than was necessary to support the hypothesis. Specifically, the AAT had determined that the hypothesis was not consistent with the relevant Statement of Principles because the material did not include evidence of the veteran being overweight for a specified period before the onset of diabetes. The applicant argued that this requirement was inconsistent with the statutory obligation to only raise a hypothesis supported by the material before the AAT.
The court held that the AAT's reasoning was flawed in several respects. The AAT had misapplied the statutory requirements by imposing an unwarranted precision requirement on the evidence needed to support the hypothesis. The court clarified that while a hypothesis must be supported by some evidence, it does not need to be supported at every point, and assumptions or inferences can be drawn if pointed to by the material. The AAT's insistence on more precise evidence than was necessary to support the hypothesis was seen as a misapplication of the statutory provisions.
The decision of the AAT was set aside, and the matter was remitted to the AAT for reconsideration. The Federal Court also ordered that the respondent pay the applicant's costs. This ruling underscores the importance of correctly interpreting statutory obligations and applying the Deledio steps in veteran's entitlement cases, particularly in relation to the support required for a hypothesis connecting a veteran's service with his or her disease or death.
The legal issues revolved around the correct interpretation and application of section 120(3) of the Act and the Deledio steps in the context of veteran's entitlements. The applicant contended that the AAT misapplied the law by requiring more precise evidence than was necessary to support the hypothesis. Specifically, the AAT had determined that the hypothesis was not consistent with the relevant Statement of Principles because the material did not include evidence of the veteran being overweight for a specified period before the onset of diabetes. The applicant argued that this requirement was inconsistent with the statutory obligation to only raise a hypothesis supported by the material before the AAT.
The court held that the AAT's reasoning was flawed in several respects. The AAT had misapplied the statutory requirements by imposing an unwarranted precision requirement on the evidence needed to support the hypothesis. The court clarified that while a hypothesis must be supported by some evidence, it does not need to be supported at every point, and assumptions or inferences can be drawn if pointed to by the material. The AAT's insistence on more precise evidence than was necessary to support the hypothesis was seen as a misapplication of the statutory provisions.
The decision of the AAT was set aside, and the matter was remitted to the AAT for reconsideration. The Federal Court also ordered that the respondent pay the applicant's costs. This ruling underscores the importance of correctly interpreting statutory obligations and applying the Deledio steps in veteran's entitlement cases, particularly in relation to the support required for a hypothesis connecting a veteran's service with his or her disease or death.
Orders
Orders of the court
1. The decision of the Administrative Appeals Tribunal be set aside and the matter remitted to the Tribunal differently constituted to be determined according to law.
2. The Respondent pay the Applicant’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).
Background
Background to the litigation
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Evidence
Evidence Before The Court
Mrs Ellis’ next complaint was that the AAT twice purported to determine whether the material raised a hypothesis (in accordance with the first Deledio step), with inconsistent outcomes. This is not an accurate description of the task undertaken by the AAT: see [44] above. However, the process adopted by the AAT was flawed: see [33]-[46] above. 6.1.2Need for more precise evidence Next, Mrs Ellis submitted that in determining that the first hypothesis was not consistent with the Diabetes Mellitus SoP, the AAT reasoned (at [58]-[59]) that: 1.The requirements as to BMI and waist circumference in the SoP are precise;2.By implication, there was a need for more precise evidence that Mr Ellis was overweight (with a BMI of 25 or above) for at least five years before the clinical onset of diabetes;3.The material before it did not include such evidence; and4.Therefore the first hypothesis was not consistent with the SoP. Mrs Ellis submitted that this reasoning involved a misapplication of s 120(3). It was submitted that s 120(3) of the VE Act requires no more than that the hypothesis connecting the injury or disease with the veteran’s service be “raised” by the material before the AAT, and that the AAT had misconceived what was required for the material to raise a hypothesis by implying there was a need for more precise evidence. In particular, Mrs Ellis submitted that the decision-maker is not to engage in fact finding during the first three Deledio steps: Tunks v Repatriation Commission (2008) 102 ALD 274 at [35] citing Deledio at 97 and Bull at [18]-[23]. Although it was necessary that the hypothesis be supported by some evidence, there was no requirement that there be evidence to support the hypothesis at every point: Repatriation Commission v Stares (1996) 66 FCR 594 at 599-600. In other words, Mrs Ellis submitted it was only necessary that the hypothesis, including any element based upon an assumption, be supported by the material before the AAT: Repatriation Commission v Glanville (2010) 114 ALD 616 at [57]; cf East at 533; and Hill (2002) 69 ALD 581 at [54]. Accordingly, Mrs Ellis submitted that a hypothesis may assume or infer the occurrence or existence of a “fact” or element of the hypothesis if the assumption or inference is pointed to by the material before the decision-maker: Elliott at [5] and Byrnes v Repatriation Commission (1993) 177 CLR 564 at 570-571. In that context, Mrs Ellis challenged the AAT’s reliance upon East in holding that the hypothesis would only be reasonable if the material before it pointed to the precise requirements of cl 6(b)(i) having been met. Mrs Ellis submitted that the AAT took what was said in East at 533 out of context. There is no identified error. It was common ground that it was not necessary for every element of the hypothesis to be supported, or pointed to, by the material before the AAT. It is the essential elements of the hypothesis that must be addressed. In Hill (2002) 69 ALD 581 at [54]-[55], the Full Court held:If an essential element of a hypothesis is not raised (or pointed to) by the material before the decision-maker, then the hypothesis is not raised by that material ...Where s 120A(3) of the Act applies to a claim and there is a relevant SoP in force, whether or not an element is essential to a hypothesis will depend upon the terms of the SoP. As Goldberg J said in Repatriation Commission v McKenna (1998) 52 ALD 72 at 80:For the purposes of s 120A(3) of the Act the hypothesis which has to be upheld by a [SoP] is the hypothesis which connects the disease suffered by a veteran with the circumstances of his service. So stated, the hypothesis has to point to a connection which starts with the disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a [SoP] ...On appeal, the Full Court approved these propositions: see McKenna v Repatriation Commission (1999) 86 FCR 144 at 150-1. Put another way, a hypothesis connecting a disease with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SoP …
Decision
Reasons for decision
Next, the Tribunal is to determine the reasonableness of the hypothesis. The reasonableness of a hypothesis for the purposes of s 120 is assessed by reference to any relevant SoP in force: s 120A(3). A hypothesis connecting a death with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SoP: Repatriation Commission v Hill (2002) 69 ALD 581 at [55]. A 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”: Deledio v Repatriation Commission (1997) 47 ALD 261 at 275; endorsed by the Full Court in Deledio at 96. 4. THE AAT DECISION The AAT set out the relevant legislative provisions and the Deledio steps: at [28]-[31]. It relevantly stated at [38]-[39]:The hypothesis under consideration must be more than one which is left open on the material before me. It must be a hypothesis which is pointed to, or supported by, the material. For the reasons which I set out in Forrester and Repatriation Commission [2012] AATA 846 I am of the view that the requirement that the material before the [AAT] “points to a hypothesis connecting the ... death with the circumstances of the particular service” (emphasis added) means that the hypothesis advanced must be reasonable.The determination of whether the hypothesis is pointed to or supported by the material or is reasonable is not to be confused with the reasoning required at the third step of the Deledio process. That step requires the determination of whether the hypothesis fits the “template” to be found in any relevant Statement(s) of Principles. If the hypothesis does not fit the template it will be deemed not to be reasonable.(Original emphasis, citations omitted.) Taking each of the Deledio steps:1.First Step – the AAT stated that it was satisfied that the material before it pointed to two hypotheses connecting Mr Ellis’ death to his operational service: at [40]; 2.Second Step – the AAT stated that it was satisfied that two relevant SoPs were in force: the Malignant Neoplasm of the Liver SoP and the Diabetes Mellitus SoP: at [43]; 3.Third Step – the AAT was not satisfied that either of the hypotheses fitted the template or was consistent with the relevant SoP: at [56]-[64]. Although the AAT was satisfied that the material was consistent with the Malignant Neoplasm of the Liver SoP: at [51], the AAT was not satisfied that the whole of the material before it pointed to the requirements for the Diabetes Mellitus SoP having been met: at [59] and [62]. In particular, the AAT noted at [59]-[60] that the factors from the Diabetes Mellitus SoP relied upon in each hypothesis had specific requirements:Clause 6(b)(i) – [a Body Mass Index (BMI) of 25 or greater or a waist circumference of greater than 94 cm] for a period of at least five years before the clinical onset of diabetes mellitus;Clause 6(b)(ii) – an inability to undertake any physical activity greater than three METs for at least the five years before the clinical onset of diabetes mellitus.
Ratio Decidendi
Legal Principle Established
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