Gibson and Repatriation Commission - [2009] AATA 115

CATCHWORDS – VETERANS’ AFFAIRS – hypertension – application of Statement of Principles – effect of revocation of SoPs between date of Commission’s decision and Tribunal’s decision – whether accrued rights to have hypotheses considered by reference to revoked SoPs and particularly those in force at the time of the VRB’s decision and any review by the Commission - whether reasonable hypothesis that hypertension war-caused – whether satisfied beyond reasonable doubt that condition not war-caused – decision set aside.

Acts Interpretation Act 1901 ss 46A, 48, 48A, 48B, 49 and 50
Administrative Appeals Tribunal Act 1975 (AAT Act), s 25
Legislative Instruments Act 2003 s 2, 5, 6, 12 and 15
Veterans’ Entitlements Act 1986 ss 5AB(2), 5C, 5D, 5Q(1), 7, 9, 13(6), 120, 120A, 196B, 196C, 196CA, 196G, 196W(7)

Banovich v Repatriation Commission (1986) 69 ALR 395; 6 AAR 113
Benjamin v Repatriation Commission (2001) 34 AAR 270
Bull v Attorney-General (NSW) (1913) 17 CLR 370
Bushell v Repatriation Commission (1992) 175 CLR 408; 109 ALR 30; 66 ALJR 753
Byrnes v Repatriation Commission (1993) 177 CLR 564; 116 ALR 210; 67 ALJR 805; 18 AAR 1; 30 ALD 1
Deledio v Repatriation Commission (1997) (1997) 25 AAR 396; 47 ALD 261
Esber v The Commonwealth (1992) 174 CLR 430; 106 ALR 577; 66 ALJR 373; 15 AAR 249
Jebb v Repatriation Commission (1988) 80 ALR 329; 8 AAR 285
Kraljevich v Lake View and Star Ltd (1945) 70 CLR 647
Law v Repatriation Commission (1980) 29 ALR 64
Lees v Repatriation Commission (2002) 36 AAR 484
Maxwell v Murphy (1957) 96 CLR 261
McLean v Repatriation Commission [2001] FCA 1505
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; 136 ALR 481; 70 ALJR 568
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82; 27 AAR 144; 49 ALD 193
Repatriation Commission v Gorton (2001) 110 FCR 321; 33 AAR 370; 65 ALD 609
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Keeley (2000) 98 FCR 108; 31 AAR 150; 60 ALD 401
Repatriation Commission v Smith (1987) 74 ALR 537; (1987) 15 FCR 327; (1987) 12 ALD 798; (1987) 7 AAR 17
Repatriation Commission v Thomas (2002) 37 AAR 122; 71 ALD 289
Repatriation Commission v Thompson (2001) 107 FCR 235; 63 ALD 1; 32 AAR 514
Re Gibson and Repatriation Commission [2004] AATA 870
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Re Slattery and Repatriation Commission [1998] AATA 427
Shi v Migration Agents Registration Authority (2008) 248 ALR 390; (2008) 82 ALJR 1147; (2008) 103 ALD 467
Stoddart v Repatriation Commission (2003) 197 ALR 283
Woodward v Repatriation Commission [2003] FCAFC 160

DECISION AND REASONS FOR DECISION [2009] AATA 115

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )  S2001/149
VETERANS’   APPEALS   DIVISION                )

Re BRUCE WARWICK GIBSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  20 February 2009
Place:  Adelaide

Decision:The Tribunal:

1.sets aside the decision of the Repatriation Commission dated 22 March, 2000 and affirmed by the Veterans’ Review Board on 5 February, 2001 regarding the applicant’s claim for hypertension; and
2.substitutes for that decision, a decision that the applicant’s hypertension was war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986.
S A Forgie
Deputy President

REASONS FOR DECISION

Before he died, Mr Bruce Warwick Gibson had applied for review of various decisions of the Repatriation Commission (Commission) that had been affirmed by the Veterans’ Review Board (VRB). Apart from one of them, I reviewed all of those decisions.[1] The decision that remains is that relating to whether Mr Gibson’s hypertension was a war-caused disease within the meaning of the Veterans’ Entitlements Act 1986 (VE Act). Section 126(1) of that legislation permits Mr Gibson’s personal representative or a person approved by the Commission to take such action in relation to a claim as Mr Gibson could have taken had he not died.
Ms Monica Garratt is such a person and, according to s 126(1), is treated as the claimant, Mr Gibson. I have decided that Mr Gibson’s hypertension was war-caused within the meaning of the VE Act.

BACKGROUND

[1] Re Gibson and Repatriation Commission [2004] AATA 870

I have set out the background facts of which I am satisfied in my previous reasons for decision.[2] I adopt them and will not repeat them. In summary, Mr Gibson was born on 4 May 1944 and died on 10 March 2004. He served in the Royal Australian Navy from 10 April 1965 to 23 April 1969. Between 1966 and 1969, he rendered operational service in Vietnam on nine separate occasions. His conditions of Post Traumatic Stress Disorder (PTSD), hearing loss and tinnitus and diabetes mellitus have been accepted as war-caused. His claim that his ischaemic heart disease was also war-caused was refused by the Commission and the Tribunal affirmed that decision by consent on 9 September 2002.
[2] Re Gibson and Repatriation Commission [2004] AATA 870 at [4]-[13]

Mr Gibson claimed that his hypertension was war-caused when he lodged a claim on 5 August 1999. On 22 March 2000, a delegate of the Commission decided that Mr Gibson’s hypertension was not war-caused. The Veterans’ Review Board (VRB) affirmed that decision on 5 February 2001 and, on 30 April 2001, Mr Gibson applied to the Tribunal for review of the decision. The Commission accepts that Mr Gibson suffered by hypertension but maintains that it was not connected with his service so as to be war-caused within the meaning of the VE Act.

At the time that the Commission and the VRB made their decisions, the Repatriation Medical Authority (Authority) had made a Statement of Principles (SoP) relating to hypertension: SoP No. 25 of 1999. It was revoked by SoP No. 31 of 2001 which was, in turn, revoked by SoP No. 35 of 2003. SoP No. 35 of 2003 has been amended by SoPs No. 3 of 2004 and No. 11 of 2008. For reasons that I give later,[3] I consider that SoPs No. 25 of 1999 and SoP No. 35 of 2003 as amended by SoPs No. 3 of 2004 and No. 11 of 2008 are the relevant SoPs to which I must have regard. Although SoP No. 11 of 2008 took effect from 9 January 2008, no mention was made of it at the hearing. I had thought to ask the parties for their further submissions but have not as the authorities, to which I will refer, and s 120A(3) of the VE Act make it clear that I must have regard to the SoP that is in force at the time I review the decision.
[3] See [85]-[97]

HOW IS A DECISION REVIEWED?

In reviewing a decision, I must first identify the enactment against which I must decide whether Mr Gibson’s hypertension was a war-caused disease. The Tribunal may only review decisions that have been made in the exercise of powers conferred by an enactment.[4] When I have done that, I will be able to identify the criteria that must be satisfied in order to decide that it was such a disease. I will also be able to identify the facts that must exist, as it were, before the criteria can be said to have been satisfied. In order to decide whether those facts exist, I will need to look to the evidence. I have used the word “exist” but I can never make a definitive finding whether a fact exists or does not. The most that I can do, and all that the law requires that I do, is to decide whether, on the evidence that I have, I am satisfied that those facts exist according to the standard set by the law. That standard is known as the “standard of proof”.
[4] Administrative Appeals Tribunal Act 1975 (AAT Act), s 25

The standard of proof may be set by the particular legislation under which the decision was made. In this case, that legislation is the VE Act. For the purposes of a claim of the sort made in this case, it has set a standard of proof in relation to the causal link between the injury or disease, which a veteran claims he or she has suffered, and his or her war service. I will deal with the details of that standard of proof later as it is quite different from the civil standard that is usually specified.[5] In relation to whether the veteran is suffering from the injury or disease and the nature of that injury or disease, the standard of proof is that applicable in civil proceedings.[6] I also consider the civil standard below[7] but, for the moment, note that it means that I may only be satisfied that facts exist if, having regard to the evidence or material that is before me,[8] I am satisfied that is more probable than not that they do exist so that I am entitled to “… treat them as data capable of giving rise to legal consequences.”[9] In deciding whether I am satisfied or not, I must evaluate or weigh each piece of evidence or material and decide, on objective grounds, whether it is credible and the weight that it is to be given. Having done that, I must draw a conclusion as to what facts exist.
[5] See [25]-[27] below
[6] VE Act, s 120(4) and see Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537 and [23] below
[7] See [24] below
[8] This is evidence or material of which the parties will be aware in a case such as this and of which they have had an opportunity to make submissions: AAT Act, s 39
[9] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; 136 ALR 481; 70 ALJR 568 at 283, 499 & 590 per Brennan CJ, Toohey, McHugh and Gummow JJ

A particular criterion may require me to be satisfied of only one fact. Alternatively, it may require me to be satisfied of several facts or of a single fact that can only be found to exist if certain other facts also exist. Once I have decided on the facts, I look back to the enactment under which the decision must be made. I do that to see whether the facts I have found satisfy all of criteria that the enactment requires for the particular decision to be made. If they do not, I will not have the power to make the decision. If they do, I have to decide whether the enactment requires me to make a particular decision or whether it allows me to make a range of decisions or perhaps no decision at all. If it allows me to make a range of decisions or perhaps no decision at all, then it has given me a discretion. I then have to decide what decision is the preferable decision to make having regard to the enactment, the facts I have found and the evidence or material before me.

The process is often described as “merits review”. It is a process that does not permit the Tribunal to look to whether the law has been correctly applied by the decision-maker whose decision it is reviewing. That would be to purport to usurp judicial power that belongs to the courts. Instead, it is a review that requires the Tribunal to look to all of the evidence and material and to consider all of the issues from the beginning. Unless there is a statutory provision to the contrary, it is neither confined nor influenced by the decision it is reviewing or by the evidence or material on which it was made. Despite the use of the word “appeal” in the Tribunal’s name, its task is akin to that undertaken in the trial division, rather than in the appellate division, of a court.

WHAT IS THE LAW THAT MUST BE APPLIED?

Eligibility for pension by way of compensation

Part II of the VE Act provides for pensions, other than service pensions.[10] Eligibility for such a pension is set out in s 13 by reference to three different sets of criteria. The criteria relevant to Mr Gibson’s circumstances are set out in s 13(1), which provides:
“Where:
(a)…
(b)a veteran is incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)…
(d)in the case of the incapacity of the veteran – pension by way of compensation to the veteran;
in accordance with this Act.”
[10] A “service pension” is an age service pension, an invalidity service pension or a partner service pension: VE Act, s 5Q(1)

Section 13(1) requires that each of its criteria be satisfied. Therefore, where a person claims a pension on the basis that he or she has been incapacitated as a result of a disease or injury, that person must establish that he or she:
1.is a “veteran”;
2.has suffered a “war-caused injury” or a “war-caused disease”; and
3.if so, is incapacitated from that war-caused injury or war-caused disease.

Once a person has established each of these criteria, the rate of the pension that is payable is worked out having regard to other provisions of Part II of the VE Act.

What is a “veteran”?

Each of these terms is defined in the VE Act. Beginning with the word “veteran”, it is defined in s 5C(1). In so far as the definition applies to Part II, it provides:
“veteran means:
(a)a person (including a deceased person):
(i)who is, because of section 7, taken to have rendered eligible war service; or
(ii)in respect of whom a pension is, or pensions are, payable under subsection 13(6); …
(b)…”

Section 13(6) is not relevant in this case but s 7 is. Section 7 sets out the circumstances in which a person is regarded as having “eligible war service”. The five sets of circumstances set out in s 7(1) are qualified by s 7(2) which relates only to persons who served in the Defence Force during World War 2. It is not relevant in this case. I will refer only to the circumstance set out in s 7(1)(a):
“a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service”.[11]

The expression “operational service” is defined in ss 6 to 6F.[12] The Commission has conceded that Mr Gibson had operational service as defined.[13] As he has operational service, he is taken to have been rendering eligible war service while he rendered that operational service.[14]

[11] Mr Gibson’s periods of operational service are set out in my reasons for decision in Re Gibsonand Repatriation Commission [2004] AATA 870 at [6]-[8]

[12] VE Act, s 5C(1)

[13] See Re Gibson and Repatriation Commission [2004] AATA 870 at [6]-[8]

[14] VE Act, s 7(1)(a)

What is meant by the expressions “war-caused injury” or a “war-caused disease”?

The expressions “war-caused injury” and “war-caused disease” are defined in s 9. An injury or disease is taken to be a “war-caused injury” and “war-caused disease”, as the case may be, if it meets one or other of five sets of criteria found in s 9(1) and expanded upon or qualified by ss 9(2) to (7).[15] The criteria set out in s 9(1)(b) are relevant in this case. They are that:
“… 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) …
(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)-(e)…”
[15] Section 9 is also qualified by s 9A which provides that a veteran’s injury, disease or death is taken not to be war-caused if the injury is sustained, the disease contracted or the death occurred on or after the commencement of the Military Rehabilitation and Compensation Act 2004 on 27 April 2004 and the injury, disease or death relates to service rendered by the person on or after that date or before and on or after that date: s 9A(1). Section 9A(2) excludes from the scope of s 9(1) an injury or disease of a veteran aggravated or materially contributed to by service occurring on or after 27 April 2004

Section 9(1)(b) refers to both an “injury” and a “disease”. Both terms are defined in the VE Act. The word “injury” is defined to mean:
“… any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a)a disease; or
(b)the aggravation of a physical or mental injury.”[16]
[16] VE Act, s 5D(1)

The word “disease” is defined to mean:

“(a) any physical or mental ailment, disorder, 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 effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).”[17]

[17] VE Act, s 5D(1)

What is meant by the expression “incapacitated from a war-caused injury or a war-caused disease”?

Section 5D(2) does not define the term “incapacitated” but it does provide that:
“In this Act, unless the contrary intention appears:
(a)a reference to the incapacity of a veteran from a war-caused injury or a war-caused disease; or
(b)…
is a reference to the effects of that injury or disease and not a reference to the injury or disease itself.”

Deciding whether a person meets the criteria for a pension of the type provided for by s 13(1): general principles

In order to decide whether a person meets the criteria for a pension provided for by s 13(1), it must consider all of the evidence. That evidence generally consists of written material given to it by the parties and that which it hears spoken by those who are asked or required to be witnesses in the matter. Sometimes, it may include written material that the Tribunal has found itself and which it has both shown to the parties and given them an opportunity to comment upon and, if they wish, to provide evidence to contradict or explain. The Tribunal cannot have regard to any material that it does not show to the parties and give them such an opportunity.

When all the evidence has been given to the Tribunal, the parties usually tell it what conclusions they think it should draw from the evidence. Putting that another way, they make submissions to the Tribunal as to the facts that the Tribunal should decide or find are established by that evidence. They know what facts to focus on because they are the facts that the Tribunal must decide or find are established by the evidence if it is to decide that the person is entitled to the particular pension claimed. In a case such as this, that means that they always have to keep an eye on the particular provisions in the legislation that set out the entitlement to the pension under consideration. That legislation sets out the criteria that have to be met to be entitled to a pension and so the facts that have to be established to come within those criteria.

In light of the parties’ view of what they think its findings of fact should be, they then go on to tell the Tribunal why it should decide that those facts satisfy, or do not satisfy, the criteria necessary for it to decide that the person is or was entitled to the relevant pension. The parties’ submissions on these matters are not part of the evidence and the Tribunal has to be careful to distinguish the two things. Drawing the distinction can be hard for parties who are not represented by lawyers but the Tribunal always tries to help them to do so. Although they are not part of the evidence, the parties’ submissions are important. They help the Tribunal to explore and understand the evidence and to see it from all points of view.

When the Tribunal has heard all the evidence it does not consider it and make its findings of fact in a vacuum. It has to weigh all of the evidence using, as it were, a set of scales. It is required to use those scales by either the general law or by the particular legislation concerned which, in this case, is the VE Act. The scales that it is required to use are not always calibrated in the same way or in the same way for every fact it must find. Again, the calibration is set by the law. In some cases, the relevant law is found in the general law and in others in legislation. The calibration that is set is known as the “standard of proof”.

Standard of proof: general principles

In this case, the calibration on the scales is determined by the VE Act. It is determined in part by s 120. That section sets out the general principles but they are qualified by other sections of the VE Act, to which I will return a little later.

The section under which Mr Gibson applied for a pension, s 13(1), comes within Part II of the VE Act. His claim relates to operational service that he rendered. Section 120(1) is relevant and provides that:
“Where a claim under Part II for a pension in respect of the incapacity from injury or disease 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 …, as the case may be, unless it is satisfied beyond reasonable doubt, that there is no sufficient ground for making that determination.”

There are two things to notice about s 120(1). The first is that the calibration that it has set relates only to the determination that the injury or disease is a war-caused injury or a war-caused disease, as the case may be. In writing or drafting s 120(1), Parliament has not said that the calibration relates to the determination of facts necessary to decide whether the person is a veteran, has an injury or disease or has an incapacity from an injury or disease. Instead, Parliament has set a different calibration for those determinations.

Standard of proof relevant in deciding facts relevant to deciding whether the person has an injury or disease is that of reasonable satisfaction

The calibration or standard of proof to be used when weighing the evidence to decide whether the person is a veteran, has an injury or disease or has an incapacity from an injury or disease is found in s 120(4) of the VE Act.[18] It provides:
“Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.”
[18] See Benjamin v Repatriation Commission (2001) 34 AAR 270 at 282; Repatriation Commission v Cooke (1998) 90 FCR 307 at 301-311; Repatriation Commission v Budworth (2001) 116 FCR 200 at 204-205 and Repatriation Commission v Hill (2002) 69 ALD 581 at 598-599

What does “reasonable satisfaction” mean? In Repatriation Commission v Smith,[19] the Full Court of the Federal Court considered the meaning of the related term “reasonably satisfied”. After considering the authorities, Beaumont J, with whom Northrop and Spender JJ agreed, concluded that the Tribunal:

“… should have asked itself whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (1986) 9 ALD 358; Re Easton and Repatriation Commission (1987) 12 ALD 777; Re Repatriation Commission and Falkner (1987) 12 ALD 87.”[20]

In light of what the Federal Court has said, I must weigh the evidence in scales calibrated according to the civil standard of proof when deciding issues whether
Mr Gibson was a veteran, had an injury or disease and had an incapacity from an injury or disease. That is to say, I must decide what is probable. I may not find a fact established if I decide only that it was possible but not probable.

Standard of proof relevant in determining whether the person’s injury or disease is a war-caused injury or a war-caused disease

[19] (1987) 15 FCR 327; 74 ALR 537

[20] (1987) 15 FCR 327; 74 ALR 537 at 334-335; 547

In order to work out the standard of proof relevant in determining whether the person’s injury or disease is a war-caused injury or a war-caused disease, regard must first be had to s 120(1). I set that out above.[21] Its effect is that, in the circumstances it sets out, the Tribunal must determine that an injury or disease is a war-caused injury or a war-caused disease unless it is satisfied, beyond reasonable doubt that there is no sufficient ground for making that determination. The words of

s 120(3) are directed to the Commission but they apply equally to the Tribunal when it reviews a decision of the Commission. Section 120(3) tells the Tribunal when it will be satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. It tells the Tribunal that it will not be satisfied in that way if it:
“… 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 … with the circumstances of the particular service rendered by the person.”
[21] See [21]-[22] above

The expression “reasonable hypothesis” must be interpreted in light of s 120A. That is a section that applies to certain claims made on or after 1 June 1994.[22] The claims to which it relates include those made under Part II and relating to operational service rendered by a veteran.[23] Mr Gibson’s claim was a claim of that sort.
[22] The date of 1 June 1994 was chosen because that is the date on which s 120A was inserted in the VE Act by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994; s 9
[23] VE Act, s 120A(1)(a)

Section 120A(3) relates to circumstances in which the Repatriation Medical Authority (Authority) has determined a Statement of Principles (SoP) under
s 196B(2).[24] It provides 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) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.”
[24] Section 120A(3) does not apply in a case where a claim relates to a war-caused injury or a war-caused disease if the Authority has neither determined a SoP nor declared that it proposes to in relation to the kind of injury or kind of disease suffered by the person as the case may be: VE Act, s 120A(4). If the Authority has given notice under s 196G that it intends to carry out an investigation of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of incapacity from an injury or disease of that kind or in respect of a death of that kind unless and until the Authority has determined a SoP or declared that it does not propose to do so: VE Act, s 120A(2)

When may the Authority determine a Statement of Principles?

Section 196B(1) provides that the Authority’s main function is to determine SoPs for the purposes of the VE Act and the Military Rehabilitation and Compensation Act 2004. Sections 196B(2) and (3) set out the circumstances in which the Authority must determine a SoP. As only one of those circumstances is relevant in this case, I will refer only to it. It is found in s 196B(2), which provides:
“If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, [or] disease …can be related to:
(a)operational service rendered by veterans;
…
the Authority must determine a Statement of Principles in respect of that kind of injury, [or] disease … 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, [or] disease … of that kind with the circumstances of that service.”

Information about a particular kind of injury or disease 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 that 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, [or] disease … may be caused – meets the applicable criteria for assessing causation currently applied in the field of epidemiology.”[25]

[25] VE Act, s 5AB(2)

Section 196B(2)(e) of the VE Act mirrors the requirement that, in order to be regarded as war-caused, there must be one or other of the causal links Parliament has prescribed between the injury or disease and the person’s service.
In the case of Mr Gibson, that causal link is found in s 9(1)(b) i.e. that the injury he suffered or the disease he contracted arose out of, or was attributable to, the eligible war service he rendered. It is mirrored in s 196B(2)(e) because, in order to be a “factor related to service”, the factor must, in Mr Gibson’s circumstances, be a factor that “… arose out of, or was attributable to, that service”.[26]

[26] VE Act, s 196B(14)(b)

The Authority may be asked under s 196E to review the contents of a SoP or a decision not to make a SoP at all, to carry out an investigation under
s 196B(4) in respect of a particular kind of injury, disease or death. It may think that there are grounds to conduct such a review or it may be directed by the Specialist Medical Review Council under s 196W(7) to carry out an investigation in respect of a particular kind of injury, disease or death. If, after carrying out that review, the Authority comes to the view that there is a new body of sound medical-scientific evidence available that, together with that it previously considered, justifies the making of a new SoP or amending a previously determined SoP, it may determine a SoP, amend a SoP or revoke a SoP.[27] If it decides that none of these courses is justified, it must make a written declaration that it does not propose to take any of them and give reasons.[28]

[27] VE Act, s 196B(8)
[28] VE Act, s 196B(9)

Statements of Principle are disallowable instruments: relevant legislative provisions

A determination of a SoP must be in writing and is a legislative instrument.[29] Those made before 1 January 2005 were subject to s 46A of the Acts Interpretation Act 1901 (AI Act).[30] Section 46A provided that ss 48, 48A, 48B, 49 and 50 applied 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.[31] Only s 50 of the AI Act is relevant in the context of this case. Before its repeal, it provided:
“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.”
[29] VE Act, s 196B(13A)
[30] AI Act, s. 196D
[31] AI Act, ss 46A(1)(a)(i), (ii) and (iii)

The Legislative Instruments Act 2003 (LI Act) commenced operation on 1 January 2005[32] and extends to legislative instruments made both before and after that date.[33] Section 12 of the LI Act provides for the time at which a legislative instrument comes into effect if that legislative instrument was made on or after 1 January 2005. As the SoPs specify a commencement day, the effect of s 12 of the LI Act is that those SoPs made on or after 1 January 2005 commence on that day.[34] Section 15 sets out the effect of the repeal of any legislative instrument or of any of its provisions by providing:
[32] LI Act, s 2(1), item 2
[33] LI Act, ss 5 and 6
[34] LI Act, s 12(1)(a)
“The repeal of any legislative instrument, or of any provision of a legislative instrument, does not, unless the contrary intention appears in the Act or legislative instrument effecting the repeal:
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of the instrument or provision or anything duly done or suffered under the instrument or provision; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the instrument or provision; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the instrument or provision; or
(e) 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 instrument had not been enacted or made.”

Its terms reflected those of s 50 of the Acts Interpretation Act 1901, which applied to a legislative instrument such as a SoP determined before 1 January 2005.[35]

How do the provisions regarding standard of proof in ss 120(1) and (3) and the SoP regimen inter-relate?

[35] AI Act, s 46A

The manner in which ss 120(3) and (4) inter-relate with the provisions of a SoP was considered by Heerey J in Deledio v Repatriation Commission.[36] An appeal from his judgement was dismissed by the Full Court of the Federal Court.[37] After considering the structure of the Act and its various amendments and the judgements of the High Court in Bushell v Repatriation Commission[38] and Byrnes v Repatriation Commission,[39] Heerey J concluded:
[36] (1997) 47 ALD 261; 25 AAR 396
[37] Repatriation Commission v Deledio (1998) 83 FCR 82; 27 AAR 144; 49 ALD 193, Beaumont, Hill and O’Connor JJ
[38] (1992) 175 CLR 408; 109 ALR 30; 66 ALJR 753
[39] (1993) 177 CLR 564; 116 ALR 210; 67 ALJR 805; 18 AAR 1; 30 ALD 1
“ 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 s 120(1) and (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.”[40]
[40] (1993) 25 AAR 396; 47 ALD 261 at 412; 275

In its judgment on appeal,[41] the Full Court of the Federal Court summarised the course that 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). …
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.”[42]
[41] Repatriation Commission v Deledio (1998) 83 FCR 82; 27 AAR 144; 49 ALD 193 (Beaumont, Hill and O’Connor JJ)
[42] (1998) 83 FCR 82; 27 AAR 144; 49 ALD 193 at 97-98; 159-160; 159-160

The Full Court in Deledio divided the consideration of whether the material points to a hypothesis from whether that hypothesis is reasonable. As a later Full Court observed in McLean v Repatriation Commission:[43]
“It will be seen that in Deledio the Full Court effectively broke into three steps, the two steps postulated by the High Court in Byrnes, by distinguishing between formulation of the relevant hypothesis and consideration of its reasonableness. However the Court did not suggest that there was any test to be applied to the identified hypothesis other than that of reasonableness…”[44]
[43] (2001) 187 ALR 158; Whitlam, Madgwick and Dowsett JJ
[44] (2001) 187 ALR 158 at 165

What happens if the Authority amends a Statement of Principle?

There are many occasions, as in this case, when the Authority amends a SoP. What happens if that amendment occurs after a person has claimed a pension and before the Tribunal has made a decision or if it is amended on more than one occasion?

In Repatriation Commission v Keeley[45] (Keeley), the Full Court of the Federal Court decided that Ms Keeley had an accrued right to have her entitlement to a pension determined by reference to the SoP in force at the time she made her claim. That was so notwithstanding that it had been revoked by another SoP and it was the later SoP that was in force when the Tribunal reviewed the Commission’s decision. The earlier SoP was more favourable to Ms Keeley than the later SoP.
[45] (2000) 98 FCR 108; 31 AAR 150; 60 ALD 401

In reaching their common conclusion, the reasoning of Lee and Cooper JJ on the one hand and of Kiefel J on the other differs. At the outset, Lee and Cooper JJ took the view that:

“When the respondent lodged her claim for a pension under the Act, the respondent obtained a right to have that claim determined under the Act according to law. The right that accrued was a right to which s 50 applied: see Continental Liqueurs Pty Ltd v G F Heublein and Bro Inc (1960) 103 CLR 422 at 426-427, (on appeal G F Heublein & Bro Inc v Continental Liqueurs Pty Ltd (1962) 109 CLR 153.)”[46]

[46] (2000) 98 FCR 108; 31 AAR 150; 60 ALD 401 at 121; 163; 413

Their Honours continued to observe that:
“… The right to have the claim determined under, and pursuant to, the Act, therefore, was more than an expectation that a request for a remedy or benefit would be considered or a hope that a remedy or benefit may be provided if a discretion were exercised in her favour pursuant to a power provided under an enactment: see Director of Public Works v Ho Po Sang [1961] AC 901. If an enactment provides that the exercise of a discretion is subject to review and redetermination under review procedures to be conducted according to law, even a mere expectation or hope may become a right to have a matter determined under the enactment upon initiation of a review proceeding pursuant to the enactment in respect of a decision made in the exercise of a discretion: see Australian Coal & Shale Employees’ Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161 at 175, 178, 185, 194; Colonial Sugar Refining Co Ltd v Irving [1905] AC 369 at 372-373; Lee v Secretary, Department of Social Security (1996) 68 FCR 491.”[47]
[47] (2000) 98 FCR 108; 31 AAR 150; 60 ALD 401 at 121; 163; 413-414

Lee and Cooper JJ also considered that this approach was consistent with that adopted by the High Court in Esber v The Commonwealth[48] (Esber). The majority of that Court, Mason CJ, Deane, Toohey and Gaudron JJ, had, they said, decided that:
“… a right to have a decision reconsidered and determined by the Tribunal was not merely a power to take advantage of an enactment nor a mere matter of procedure; it was a substantive right that may be said to have accrued under that enactment. It was implicit in the reasoning of their Honours that it was not necessary for such a right to accrue, that it be a right enforceable by reason of prior adjudication or determination.”[49]
[48] (1992) 174 CLR 430; 106 ALR 577; 66 ALJR 373; 15 AAR 249
[49] (2000) 98 FCR 108; 31 AAR 150; 60 ALD 401at 122; 163-164; 414

The question to be asked, Lee and Cooper JJ said, is whether a determination by the Authority under s 196B affects any right that has accrued under the Act. They accepted that a provision that did no more than alter the provisions relating to the evidence in a proceeding may not affect a right to have a matter determined. Whether such a provision did affect that right was a matter of degree and also involved consideration of issues of justice: Maxwell v Murphy.[50] Should a provision be no more than procedural, it will be construed as having retrospective effect.
[50] (1957) 96 CLR 261 at 267 per Dixon CJ

Lee and Cooper JJ analysed ss 120A and 196B and concluded that those provisions involved more than alterations of a procedural character in that they purported to define the liability of the Commonwealth. They defined that liability by effectively confining the claim upon which a claimant may rely: Kraljevich v Lake View and Star Ltd.[51]
[51] (1945) 70 CLR 647 at 652 per Dixon J

They then turned to consider whether ss 120A and 196B affected any accrued rights. Section 196B, they concluded, did not alter the meaning of “war‑caused” injury, disease or death as set out in ss 8 and 9. Section 120A was a different matter:
“ The terms of s 120A(2) show a clear intention by Parliament that such a Statement is to ‘affect’ the accrued right obtained by the lodgment of a claim under the Act to have the claim decided by the Commission. It is plain that by postponing a right to have a claim decided until a Statement has been determined, Parliament intended that the decision, and therefore the right to have a decision made, may be affected by a Statement determined under s 196B and that a pending claim is to be decided by application of the Statement when determined.
However, that circumstance does not apply after a claim has been determined and the right that has accrued under the Act is a right to have the determination reviewed. The Act is silent about the effect upon such an accrued right of the revocation of a Statement and determination of another Statement under s 196B(8)(c). It is significant that there is no provision equivalent to s 120A(2) where the Authority is carrying out an investigation under s 196B(7) preparatory to deciding whether to revoke a Statement and determine another Statement under s 196B(8).
Unless a contrary intention is clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued. With regard to beneficial legislation such as the Act, it may be assumed that a construction of substantive provisions least likely to work or cause unfairness in result is to be preferred. It may be concluded that Parliament intended that the review of a decision on a claim made pursuant to a Statement more beneficial to a claimant than the terms of a Statement that replaced the former Statement after the decision had been made, is to be conducted as if the former Statement had not been revoked. Unless the Act provided otherwise, a proceeding initiated under the Act to review a decision made by the Commission was to be carried out by determining if the respondent’s claim to a pension had been wrongly refused, the decision of the Commission to be replaced by the decision that should have been made by the Commission had it properly applied the law as it stood: see Esber at 440-441 per Mason CJ, Deane, Toohey, Gaudron JJ. ”[52]
[52] (2000) 98 FCR 108; 31 AAR 150; 60 ALD 401at 123; 165; 415

Kiefel J considered the matter from a different point of view that is encapsulated in the following passage:
“ In my view, the Statements of Principles operate generally as a bar or threshold test. The bar or limitation operates on the right to a pension itself because the Statements of Principles determine the connection between death and service as a minimum, in each case: see Maxwell v Murphy at 278. It cannot therefore be described as relating only to procedure: see Pedersen v Young (1964) 110 CLR 162 at 169. The introduction of the second SoP affected the right to pension under s 13, as the first had.
From the time the first SoP came into effect, Mrs Keeley’s right to a pension was defined specifically by the requirement that the circumstances of her husband’s service involved his exposure in the course of his work to paints and/or lacquers before the clinical onset of multiple myeloma, and then more generally by the requirement that the condition be attributed to his service. Whilst she was required to prove or vindicate that right, it was one which was then held by her. The second SoP required more - that work as a painter had been undertaken for a minimum period or periods and that the condition onset within a certain time from cessation of exposure through that work. Any increase in the bar to the remedy could not in my view be regarded as procedural. It affected a substantive right: see Pedersen v Young at 169. The comparison is as between a provision limiting access to the courts for enforcement of a claim and one which destroys or impairs the basis upon which a remedy will be given (and see McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 41).
The repeal of the first SoP affected the content of Mrs Keeley’s right. It follows, in my view, that s 50 of the Interpretation Act [Acts Interpretation Act 1901] operates, subject to the further question whether any intention to the contrary is disclosed by the second SoPs as the repealing provision.”[53]
[53] (2000) 98 FCR 108; 31 AAR 150; 60 ALD 401 at 130-131; 172-173; 422

In considering whether a contrary indication had been disclosed, Kiefel J said:
“ The essence of the appellant’s argument was that one might derive from the provisions of the Act that it was intended to present current scientific and medical knowledge as the requirement of evidence of connection. One may put to one side, for the present, the question whether this contextual setting for the second SoP was sufficient for an intention to be derived from it, as the repealing provision, as the Interpretation Act requires. His Honour the primary judge considered that the underlying view, that a new law is considered to be an improvement on the old, could be applied to virtually all amending or repealing legislation. Further, the need for consistency of decisions of lay tribunals is equally met by applying the SoP existing at the time of the primary decision. I respectfully agree.”[54]
[54] (2000) 98 FCR 108; 31 AAR 150; 60 ALD 401at 132; 173-174; 423

When a later Full Court came to consider the matter of Repatriation Commission v Gorton[55] (Gorton), the SoP in force at the time the Tribunal made its decision was more favourable to Mr Gorton than the SoP in force when he claimed a pension for incapacity.
[55] (2001) 110 FCR 321; 33 AAR 370; 65 ALD 609 Heerey, Emmett and Allsop JJ

Emmett J agreed with both Heerey and Allsop JJ, who prepared separate judgments. Each came to the same conclusion. That is that the Tribunal must first look to the SoP that is in force at the time it is reviewing the decision. That is required by s 120A(3) having regard to s 43(1) of the Administrative Appeals Tribunal Act 1975. If that SoP upholds the hypothesis put forward to support the claim, the Tribunal goes on to the next step set out in Deledio i.e. to consider whether the hypothesis has been disproved beyond reasonable doubt. If that SoP does not uphold the hypothesis, the Tribunal goes back to the SoP in force at the time that the claim for pension was made. Regard may be had to that SoP for a claimant such as Mr Gorton accrued a right to have his claim for pension considered in light of that SoP when he lodged his application. As their Honours observed, this reasoning accords with that in Repatriation Commission v Keeley.

Having considered Keeley and Repatriation Commission v Thompson,[56] Heerey J stated that the system of SoPs established by the Act is intended to operate in the following way:
“… Assume a SoP in force at the time of the claim is revoked by another SoP which is in force at the time of the AAT decision. The starting point is that the AAT must consider the reasonableness of the hypothesis advanced by reference to the SoP which ‘is in force’: s 120A (3), see s 43 AAT Act. If the current SoP ‘upholds’ the claimant's hypothesis then the AAT moves, pursuant to s 120(1), to consider whether it has been disproved beyond reasonable doubt.
If, however, the current SoP does not uphold the hypothesis, the claimant may then contend, pursuant to Keeley, that he or she has an accrued right under the earlier SoP. If that contention is accepted then again the hypothesis has to be disproved beyond reasonable doubt under s 120(1).
The claim for a pension under s 13 is in respect of death which was war-caused or incapacity from a war-caused injury or disease. The claim is not in respect of death or incapacity based on any particular SoP or on any particular characterisation of a medical condition or cause of death. Keeley and the present case concern SoPs which are sequential in point of time or, so to speak, in a vertical relationship to each other. However, there may well be in respect of any particular claim, horizontally applicable SoPs. In respect of the one death or disease or injury a claimant is entitled to advance more than one hypothesis based on more than one SoP. As already discussed, SoPs operate as delegated legislation to determine conclusively in relation to a particular disease what factors can constitute a reasonable hypothesis. If at the time of claim a claimant could raise one hypothesis consistent with the factors in that SoP, the capacity to rely on that hypothesis is a right which a later revoking SoP does not affect because an intention to do so does not appear: AI Act s 50.”[57]
[56] (2001) 107 FCR 235; 63 ALD 1; 32 AAR 514 (Drummond, Whitlam and Emmett JJ)
[57] (2001) 110 FCR 321; 33 AAR 370; 65 ALD 609 at 331-332; 380-381; 620

Allsop J considered that:
“The nature, purpose and origins of SoPs and the terms of s 120A(3), especially the phrase ‘is in force’, signify to me a parliamentary intention that only the current SoP is relevant when the Commission or the Tribunal (the latter by reason of a review under s 175 of the Act and s 43 of the Administrative Appeals Tribunal Act 1997 (Cth) (AAT Act)) is addressing the matter.”[58]

Despite his view, Allsop J reflected that the issues were those upon which minds might differ. Therefore, notwithstanding his own views and recognising that others had expressed a different view, he considered that Keeley should be followed.

[58] (2001) 110 FCR 321; 33 AAR 370; 65 ALD 609 at 335; 384; 625

Allsop J described the approach that should be taken as:
“… not a right of ‘election’. It is a sequential approach mandated by a combination of the Act and the Full Court’s decision in Keeley.
…
In any reconsideration the Tribunal should approach the question of the entitlement to the pension under the Act by reference to the SoP then currently in force and, if it becomes relevant by a negative answer to the first enquiry, then by reference to the SoP in force at the time of the Commission’s decision.”[59]
[59] (2001) 33 AAR 370 at 386 and see also 381 per Heerey J

Without deciding the issue for it did not arise in the case before him, his Honour also noted that he saw:
“… no basis either in Keeley or in the Act for any rights to arise or accrue by reference to SoPs which are promulgated after the Commission’s decision and which are revoked before the Tribunal’s review. Nothing in Keeley or the Act mandates that.”[60]
[60] (2001) 110 FCR 321; 33 AAR 370; 65 ALD 609 at 336; 386; 625

The issue did arise in the later case of Repatriation Commission v Thomas[61] but, in view of his decision to allow the appeal on another ground and to remit the matter for reconsideration and in view of the issue’s not having been fully argued, Mansfield J did not decide it. Instead, he made only “some observations” on it.[62] Therefore, like the statement of Allsop J in Gorton, the observations of Mansfield J are obiter dicta and not binding upon me. I must decide the matter for myself.
[61] (2002) 37 AAR 122; 71 ALD 289
[62] (2002) 37 AAR 122; 71 ALD 289 at 130; 297. The issue was not considered by the Full Court of the Federal Court on appeal. Heerey, Whitlam and Marshall JJ decided that the ground of appeal focusing on it took “… issue with an observation of the primary judge and not with his order. His Honour expressed a view about the matter to assist the AAT when the matter returned to that body. However, it is up to Mr Thomas to seek to appeal from an adverse decision of the AAT in the future, which in some way, flows from his Honour’s reasoning.” Thomas v Repatriation Commission (2003) 37 AAR 122 at 136

I will begin, though, with the observations of Mansfield J in Thomas. After referring to the passage from Allsop J’s judgment to which I have referred[63] and observing that it was consistent with the decision in Keeley, his Honour continued:
[63] See [52] above
“… However, as the particular issue did not arise in either Gorton or Keeley, I do not think too much can be made of such remarks. The important step is to identify, by reference to those decisions, the nature of the accrued right which they recognise and why it comes to exist.
Section 50 of the Acts Interpretation Act provides that the repeal of a regulation does not, in the absence of a contrary intention, affect any right accrued under the regulation. Keeley decided that the lodging of a claim for a benefit under the Act gave rise to a right to have the claim determined under the Act according to law, and that s 50 applied to that right (per Lee and Cooper JJ at 121). The operation of s 120A(2) and (3) meant that the potential introduction of a Statement of Principles would delay the making of a decision on the claim, and the introduction of a Statement of Principles would in a substantive sense, as opposed merely to a procedural sense, "affect" the right which accrued to the claimant upon lodgment of a claim (per Lee and Cooper JJ at 122-123).
The Repatriation Medical Authority is obliged to give public notice of a proposed review of the contents of a Statement of Principles (s 196G(1)). Such notice apparently obliges the Commission not to determine a claim until the investigation has been completed. Section 120A(2) refers to "an investigation in respect of a particular kind of injury, disease or death". Those words parallel the words in s 196G(1)(c) about the content of the notice. It does not distinguish between an investigation where there is no Statement of Principles and one to review a Statement of Principles. In my view, as s 120A(2) refers to the notice of investigation, the fact that s 196E(1)(d) and (f) and s 196B(4) and (7) separately deal with the initial investigation towards a Statement of Principles and the review of a Statement of Principles is not of consequence.
Section 120A(2) applies in terms to the Commission, but it does not expressly apply to the board (or to the AAT). The board’s review functions under s 139 of the Act are similar to those of the AAT under s 175 of the Act and s 43 of the Administrative Appeals Tribunal Act. In Gorton, Allsop J (at 331) laid weight upon the AAT having to review the decision of the Commission or of the board by reference to the Statement of Principles which ‘is in force’ (s 120A(3)). The same may said of the board’s role. But his Honour did not there suggest that the AAT was obliged to delay its decision if a Statement of Principles was being reviewed. I consider that the same applies to the board. The circumstances that the Commission is obliged to defer a decision on a claim pending the making or review of a Statement of Principles was remarked upon by Lee and Cooper JJ in Keeley (at 123) in the following terms:
‘However, that circumstance does not apply after a claim has been determined and the right that has accrued under the Act is a right to have the determination reviewed. The Act is silent about the effect upon such an accrued right of the revocation of a statement and determination of another statement under s 196B(8)(c). It is significant that there is no provision equivalent to s 120A(2) where the authority is carrying out an investigation under s 196B(7) preparatory to deciding whether to revoke a statement and determine another statement under s 196B(2).’
Whilst I am not confident the latter part of those remarks applies to the Commission where the Repatriation Medical Authority has given notice under s 196G if a reconsideration of a Statement of Principles for reasons given at [34] above, the remarks generally confirm that the Board is not itself obliged to defer a decision reviewing a claim by operation of s 120A(2) of the Act.
Once that step is taken, in my view it follows that persons such as
Mr Thomas have a right of review by the board and by the AAT by reference to the Statement of Principles in force at the time of the respective reviews.
Once that step is taken, in my view it follows that persons such as
[64] (2002) 37 AAR 122; 71 ALD 289 at 131-132; 298-299
Mr Thomas have a right of review by the Board and by the Tribunal by reference to the Statement of Principles in force at the time of the respective reviews. They also have an accrued right, if the application of the Statement of Principles in force at the time of the determination of the Board or of the Tribunal (at the times of their respective reviews) does not result in a favourable determination, to have the Board or the Tribunal (as the case may be) determine the claim by reference to the Statement of Principles in force at the time of the Commission's decision. But I do not consider that they have an "accrued right" before the Tribunal to have the claim determined by reference to the Statement of Principles in force at the time of the Board's decision where the then current Statement of Principles has replaced one in force at the time of the Commission's decision, as distinct from and in addition to the accrued right recognised in Keeley and Gorton. My conclusion accords with the observations of Heerey J at 322 and of Allsop J at 333 and 335 in Gorton and of Lee and Cooper JJ in Keeley at 123 although their Honours were not required to, and did not, directly address that issue.”[64]

If this were not obiter dicta, I would be bound to apply this conclusion even though I do not understand how his Honour moved from a person’s having an accrued right to have a review by the VRB and by the Tribunal by reference to the SoP in force at the time of the review to his conclusion that the person does not have an accrued right before the Tribunal to have a decision or determination reviewed according to the SoP in force at the time of the VRB’s review. He has not given a reason in the final paragraph of the passage to which I have referred. Given his earlier reference to s 50 of the AI Act and to the person’s right to have the VRB review the decision by reference to the SoP in force at the time of its review, I had expected that he would conclude otherwise.

Mansfield J’s references to the observations of Heerey J (at 322) and of Allsop J (at 333 and 335) in Gorton and with those of Lee and Cooper JJ in Keeley (at 123) of the relevant FCR reports as supporting his conclusion do not assist me to understand his reasons for doing so. The passage from the judgment of Lee and Cooper JJ is reproduced at paragraph 41 above of these reasons. Their Honours state that “it is to be presumed that accrued rights are determined under the law as it stood when the right accrued.” They make no mention of any rights that might, or might not, have been accrued as a right of the VRB’s review of the decision. Instead, they focus solely on the Commission and the right to have the “… decision of the Commission … replaced by the decision that should have been made by the Commission had it properly applied the law as it stood.”[65] Mansfield J’s reference to “322” of Heerey J’s judgment in Gorton also perplexes me. In so far as I understand Heerey J’s judgment on that page, it seems to be focused on what was decided in Keeley and the issues raised in the case. There is no mention of the VRB but, equally, what is said does not preclude the possibility that a right accrues at the time that the VRB makes its decision. The passage at “333” to which Mansfield J refers from the judgment of Allsop J in Gorton seems to be in the same category. I have reproduced a passage at [50] above that may be the further passage to which Mansfield J refers from the judgment of Allsop J. It is a passage that refers only to a parliamentary intention that only the SoP or SoPs current at the time that the Commission made its decision or the Tribunal reviewed it is relevant. Allsop J appears not to have considered the VRB and whether a right accrued at the time of its decision.
[65] (2000) 98 FCR 108; 31 AAR 150; 60 ALD 401 at 123; 165; 415

In considering the issue I have returned repeatedly to the judgments in Keeley and Gorton as well as to that of the High Court in Esber. I will begin with Esber in which the Court was concerned with the applicability of redemption provisions in the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act) after they had been repealed by the Compensation Employees’ Rehabilitation and Compensation Act 1988 (1988 Act).

The majority considered first the transitional provisions of the 1988 Act and concluded that those provisions ensured that Mr Esber’s entitlement to redemption was to be determined in accordance with the 1971 Act. Although it acknowledged that this was sufficient to decide the case, the majority went on to consider section 8 of the AI Act and whether or not Mr Esber had an accrued right under the 1971 Act. Section 8 of the AI Act provides, in part that:
“Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:
(a)…
(b)…
(c)affect any right … acquired, accrued or incurred … under any Act so repealed;
(d)…
(e)…
…”

The delegate of the Commissioner for Commonwealth Employees’ Compensation had disallowed Mr Esber’s claim for redemption because he was not satisfied that certain requirements had been met. At the time of the repeal of the 1971 Act, Mr Esber’s application to the Tribunal was out of time and the extension had not yet been granted. The majority said that he had, “... at the time of the repeal of the 1971 Act, a right to have his application to the tribunal determined pursuant to Part V of the 1971 Act.” The majority went on to say:
“... at the least, the applicant had, at the time of the repeal of the 1971 Act, a right to have his application to the Tribunal determined pursuant to Pt V of the 1971 Act. It may not be possible to say of a person in the position of the appellant that he had a right to a favourable determination from the Tribunal. The Tribunal was required to stand in the shoes of the decision-maker (the delegate) and arrive at its own decision …[Drake v Minister for Immigration (1979) 24 ALR 577 at 589]. In Drake, Bowen CJ and Deane J said of the Tribunal …[at 589]:
‘The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.’
But that is not to the point here. If it be assumed that the appellant did not have a right to redemption in the sense first discussed [i.e. a right to redemption of weekly payments within the meaning of section 8 of the Acts Interpretation Act 1901], he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope JA in NSW Aboriginal Land Council v Minister Administering Crown Lands (Consolidation) Act and Western Lands Act …[(1988) 14 NSWLR 685 at 694]:
‘The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.’
Once the appellant lodged an application to the Tribunal to review the delegate’s decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely ‘a power to take advantage of an enactment’ …. Nor was it a mere matter of procedure …; it was a substantive right … Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, ‘although that right may fairly be called inchoate or contingent’ …This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act.”[66]
[66] (1992) 174 CLR 430; 106 ALR 577; 66 ALJR 373; 15 AAR 249; at 440-441; 583; 377; 255

I will spend a moment considering the application of principles in Esber to the issues in this case I must consider without regard to the Federal Court’s analysis of them in Keeley and Gorton. Of course, I remain bound by the Federal Court’s analysis but, as I have said, they have not considered the precise issue I must consider i.e. whether a right accrues to a veteran to have the Commission’s decision reviewed by reference to the SoP in force at the date of the VRB’s review as well as that in force at the date of the Commission’s decision and that of the Tribunal.

It seems to me that the principles set out in Esber require me first to have regard to the time or times at which Mr Gibson acquired or accrued a right or rights. The first time occurred when the delegate of the Commission made the decision. This has, of course, already been decided by Keeley v Repatriation Commission. At that time, Mr Gibson had a right to have his claim properly determined in accordance with the relevant SoP in force at that time. That is a right that survives the subsequent repeal or amendment of that SoP. It survives an ultimate application for review and review by the Tribunal. As decided by Gorton, the Tribunal is under a duty to decide the issue having regard to the SoP in force at the time of its decision. Mr Gibson and the Commission have correlative rights as a result.

The principles that lead to the conclusion that a right accrues at these two times also lead to the conclusion that the right also arises at a further two times. One of those further times is the time at which the VRB reviews the Commission’s decision. The other occurs should the Commission undertake a review of its own decision. Those two other times are part of the continuum of administrative decision-making that culminates in the Tribunal’s review of a decision. The general approach and the Tribunals’ role in it was set out by Davies J in Jebb v Repatriation Commission[67] in a passage endorsed by Kirby J in Shi v Migration Agents Registration Authority[68] (Shi). It is:
“… [T]he general approach of the [T]ribunal has been to regard the administrative decision making process as a continuum and to look upon the [T]ribunal’s function as part of that continuum so that, within the limits of a reconsideration of the decision under review, the [T]ribunal considers the applicant’s entitlement from the date of the application, or other proper commencing date, to the date of the [T]ribunal’s decision. That function was enunciated in Re Tiknaz and Director-General of Social Services.^[[69]] The approach there taken has since been generally adopted. In the repatriation jurisdiction, it was applied after Banovich^[[70]] in Re Easton and Repatriation Commission,^[[71]] where … the [T]ribunal … said:^[[72]]
‘ The ambit of a review by the [Tribunal] is necessarily influenced by the ambit of the steps and proceedings that have taken place prior to its review, for the function of the [Tribunal] is to review a decision. But provided that the matter is within the ambit of its jurisdiction as a review authority, the general practice of the [T]ribunal is to take account of events that have occurred up to the date of the decision. Indeed, s 43(1) of the [AAT Act so implies].’
There is thus a general approach deriving in particular from the statutory function of substituting one administrative decision for another. Nevertheless, the particular nature of the ‘decision’ in question may sometimes, exceptionally, confine the tribunal’s attention to the state of the evidence as at a particular time.^[[73]]”[74]
[67] (1988) 80 ALR 329; 8 AAR 285
[68] (2008) 248 ALR 390; (2008) 82 ALJR 1147; (2008) 103 ALD 467
[69] (1981) 4 ALN N44
[70] Banovich v Repatriation Commission (1986) 69 ALR 395; 6 AAR 113
[71] (1987) 12 ALD 777; 6 AAR 558
[72] “Easton at AAR 561 referring to Lucas v Repatriation Commission (1986) 69 ALR 415. See also Fletcher v FCT (1988) 19 FCR 442 at 453; 84 ALR 295 at 306-7; 16 ALD 280 at 283.”
[73] “See also reasons of Hayne and Heydon JJ at [99].”
[74] (1988) 80 ALR 329; 8 AAR 285 at 333; 289 approved in Shi v Migration Agents Registration Authority (2008) 248 ALR 390; (2008) 82 ALJR 1147; (2008) 103 ALD 467 at 400-401; 1156; 477-478

The general approach would seem to be equally applicable to each stage of the continuum of decision-making that occurs in the making of the Commission’s decision and its review by the Commission itself, the VRB and ultimately by the Tribunal.

I will summarise that continuum. As is apparent from the legislative framework I have summarised above, a determination whether an injury or disease is war-caused is an essential step in determining whether Mr Gibson was entitled to a pension of the sort provided for in s 13(1) of the VE Act. There is in nothing in the VE Act that expressly fixes the time at which the Tribunal must determine a claimant’s entitlement to a pension. Given that the VE Act is an enactment intended “… to provide for the payment of pensions … “ as well as other benefits to veterans and certain other persons, it could be described as beneficial legislation. Beneficial legislation may also be described as remedial legislation and so, the argument would continue, should be construed beneficially. This is based on the principles expressed by Isaacs J in Bull v Attorney-General (NSW)[75] when he said of the Crown Lands Act 1895 (NSW):
“In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially (per Lord Loreburn L.C. in Bist v. London and South Western Railway Co.^[[76]^]). This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow. It is so laid down in Giovanni Dapueto v. James Wyllie & Co.; The Pieve Superiore^[[77]^], and in Gover's Case^[[78]]. …”[79]
[75] (1913) 17 CLR 370
[76] (1907) AC 209, at 211
[77] L.R. 5 PC 482 at 492
[78] 1 ChD 182 at 198
[79] (1913) 17 CLR 370 at 384

When regard is had to the basis on which the Authority determines SoPs, it appears that Parliament intended that the Commission determine any claim by reference to the SoP that the Authority had determined in respect of the incapacity from an injury or disease or death of the kind that is the subject of the claim and that “is in force”.[80] That is clear from the s 120A(3). Section 120A(3) is not limited in its terms to the Commission and its determinations of claims. When read with
[80] VE Act, s 120A(3)
s 120A(4), its effect is that, when a SoP has been determined by the Authority, a hypothesis can only be considered reasonable for the purposes of s 120(3) if “there is in force” a SoP that upholds that hypothesis. No reference is made to a SoP that has been in force; only to one that is in force. That is a clear indication that reference is to be made to the SoP in force at the time that the reasonableness of the hypothesis is being considered and, apart from that in force when the Commission made its decision, to none that has gone before.

It is equally clear from s 120A(2) that, when the Authority has given notice under s 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim unless or until the Authority has determined a SoP under s 196B(2) or has declared that it does not intend to make such a SoP.

It is to be noted that the Commission is only denied power to make a determination by s 120A(2) when the Authority “has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death …”.[81] It is denied power until the Authority “has determined a SoP under s 196B(2) in respect of that particular kind of injury, disease or death; or has declared that it does not propose to make such a …” SoP.[82] When no SoP has been made in relation to a particular kind of injury, disease or death, the effect of s 120A(2) would be to prevent the Commission from determining the claim until the Authority had made a SoP or declare that it would not do so. If it made a SoP, the Commission would then have to consider the claim by reference to the SoP “in force” in accordance with s 120A(3).
[81] VE Act, s 120A(2)
[82] VE Act, s 120A(2)(a) and (b)

No express reference is made in s 120A(2) to the situation in which the Authority decides to review an existing SoP and to either amend, revoke or revoke and replace a SoP. Is that situation implicitly encompassed within s 120A(2)? In order to answer that question, I have gone back to s 196G as the consequences specified in s 120A are partly predicated upon the Authority’s having given a notice under that section. When I do that, I find that review of an existing SoP is one of the four circumstances in which s 196G(1) requires the Authority to give notice. Those four situations are that the 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 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;
…”[83]
[83] VE Act, s 196G(1)

The terms used in s 196G(1) to impose an obligation upon the Authority an obligation to publish a notice do not, on their face, reflect all four situations. Instead, the obligation is that:
“… 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.”

These terms reflect those used in ss 196G(1)(a)(i) and (b) and to those used in s 120A(2) in that reference is made only to the investigation and not to the review. Does that mean that, despite referring to four situations, s 196G(1) only imposes an obligation to publish a notice in the case of two of them? That cannot be so for, if that interpretation were correct, it would mean that Parliament has included two provisions – ss 196G(1)(a)(i) and (b) – that are superfluous and have no meaning. Parliament is presumed not to act in that way. When regard is had to the Authority’s obligations in conducting a review, it is realised that the provisions are not superfluous. The Authority’s obligations found in s 196B(7) reveal that an investigation is an integral part of its process of reviewing a SoP.[84] Indeed, except in very limited circumstances specified in ss 196C(4) and 196CA, the Authority is obliged to “carry out an investigation to find out if there is new information available about … how the injury may be suffered or sustained, the disease may be contracted or the death may occur; or … the extent (if any) to which: … the injury, disease or death may be war-caused …”.[85] Therefore, the reference to an investigation in
[84] In general terms, s 196B(7) provides that when the Authority is asked to review a SoP or decides that it will review a SoP, it must “carry out an investigation to find out if there is new information available about …” certain issues specified in ss 196B(7)(d) and (e)
[85] VE Act, s 196B(7)
s 196G would seem to be sufficient to impose an obligation on the Authority to publish not only when it is carrying out an investigation to decide whether it should make an initial SoP about a particular injury, disease or kind of death but also when it is reviewing a SoP that it has previously made.

In the absence of any contrary indication in s 120A(2), it would follow that the reference in that provision to a “notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death” would encompass a notice given in respect of a review under s 196B(7) as well as a notice given in respect of whether an initial SoP should be made. Is there any such contrary intention to be found? I have looked for it in ss 120A(2)(a) and (b). They set out the two events that end the restriction that is imposed upon the Commission’s power to determine a claim when a notice under s 196G. One is that the Authority has determined a SoP under s 196B(2) in respect of the kind of injury, disease or death specified in the notice under s 196G. The other is that it has declared that it does not propose to make such a SoP.

At first glance, s 196B(2) relates to the making of an initial SoP when none has existed before. If that were so, s 120A(2) would have to be read as confining the Commission’s power to determine a claim only in that limited circumstance. When regard is had, though, to s 33 of the AI Act and s 196B of the VE Act, I consider that the power given to the Authority by s 196B(2) extends to the revoking of a SoP and making of a new SoP in its place and to amending a SoP. If I am correct in that, the limitations imposed on the Commission by s 120A(2) extend to circumstances in which the Authority has issued a notice of its investigation as part of a review of an existing SoP.

SoP2599 uses the expression “accurate determination of hypertension” and defines it to mean:
“… establishing the diagnosis of hypertension by the accurate measurement of blood pressure on a number of occasions. As stated in the document ‘The Management of Hypertension: a consensus statement’ published in The Medical Journal of Australia Vol 160 Supplement, 21 March 1994, to obtain accurate measurement of blood pressure, the conditions for measurement should be standardised as much as possible before readings by ensuring the following:
ξ a mercury sphygmomanometer should be used in the diagnosis of hypertension;
ξpatients should be relaxed and seated. Additional information may be provided by supine and standing readings. This is particularly important in the elderly and diabetics, as both groups are prone to postural hypotension;
ξthe bare arms should be supported and positioned at heart level;
ξa cuff of suitable size should be applied evenly to the exposed upper arm, with the bladder of the cuff positioned over the brachial artery. The bladder length should be at least 80% and the width at least 40%, of the circumference of the upper arm;
ξthe cuff should be snugly wrapped around the upper arm and inflated to 30 mmHg above the pressure at which the radial pulse disappears;
ξin older patients, if the radial artery remains palpable when the cuff pressure exceeds the expected systolic pressure, the cuff reading may be inappropriately high (pseudohypertension);

ξthe cuff should be deflated at a rate no greater than 2 mmHg/beat
(2 mmHg/sec);
ξif initial readings are high, several further readings should be taken after five minutes of quiet rest;
ξon each occasion two or more readings should be averaged. If the first two readings differ by more than 4 mmHg systolic or 4 mmHg diastolic, further readings should be taken. For the diastolic reading, the disappearance of sound (phase V Korotkoff) should be used. Muffling of sound (phase IV Korotkoff) should only be used if sound continues towards zero.

At the same time heart rate and rhythm should be measured and recorded. When the cardiac rhythm is irregular, eg. atrial fibrillation, the systolic pressure should be recorded as an average of a series of phase 1 readings, and diastolic pressures should be recorded as an average of phases IV and V.
ξFor adequate standardisation, caffeine ingestion and smoking should be avoided for two hours before blood pressure measurement.”[102]

[102] SoP2599, clause 8

SoP030408 does not use the term “accurate determination of hypertension” but uses instead the term “clinical onset”. The Authority has not defined this term but, in Lees v Repatriation Commission,[103] the Full Court of the Federal Court approved the meaning adopted by the Tribunal in Re Robertson and Repatriation Commission[104] that:
“… there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present …”.[105]
[103] (2002) 36 AAR 484, Heerey, Moore and Kiefel JJ
[104] (1998) 50 ALD 668, SM Dwyer and Drs Campbell and Re, Members
[105] (1998) 50 ALD 668 at 670 and approved by the Full Court at (2002) 36 AAR 484 at 488-490

In approving this meaning, the Full Court was considering SoP No. 1 of 2001 concerning anxiety disorder. Clause 5(a)(ii) provided for one factor that would support as reasonable a hypothesis that a veteran’s anxiety disorder was war-caused. That factor was that the veteran must have suffered a severe psychosocial stressor within two years immediately before the clinical onset of anxiety disorder. The Full Court said:
“… While it is true that the Statements of Principles are directed to causation, the means of establishing the necessary link in SoP1 between the disease and war service is to require that the symptoms (or features) of the disease are, in a case such as the present, revealed within two years of the veteran experiencing a severe psychosocial stressor (relevantly, during operational service). This is intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis. …”[106]
[106] (2002) 36 AAR 484 at 490

Both SoP2599 and SoP0348 use the term “being obese” and define it. The later definition is much more concise than the earlier. It states that:
“‘being obese’ means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of 30 or greater.
The BMI = W/H² and where:
W is the person’s weight in kilograms and
H is the person’s height in metres”.[107]

The earlier definition in SoP2599 uses the same means of measurement but defines “being obese” in more expansive but effectively narrower terms:

“ ‘being obese’ means an increase in body weight by way of fat accumulation beyond an arbitrary limit, and due to a cause specified in the Repatriation Medical Authority’s Statement about the causes of ‘being obese’ signed by the Chairman of the Authority on 16 August 1966.
[The measurement set out at this point matches that in SoP0348 above]
‘Being obese’ is considered to be present when the BMI is 30 or greater. This definition excludes weight gain not resulting from fat deposition such as gross oedema, peritoneal or pleural effusion, or muscle hypertrophy.
‘Being obese’ develops when energy intake is in excess of expenditure for a sustained period of time.
For a factor to be included as a cause of ‘being obese’ it must have resulted in a significant weight gain, of the order of a 20% increase in baseline weight, and in association with a BMI of 30 or greater.”[108]

[107] SoP0348, clause 8

[108] SoP2599, clause 8

SoP2599 defines “alcohol dependence” as, unlike cl 5(b) of SoP0348, cl 5(b) of the earlier SoP requires the veteran to be “suffering from alcohol dependence or alcohol abuse” as well as consuming the requisite quantity of alcohol within alcoholic drinks at the relevant time i.e. at the time of clinical onset of hypertension in the case of the later SoP and at the time of the accurate determination of hypertension in the case of the earlier. “Alcohol abuse” means:
“… the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.”[109]

The expression “alcohol dependence” means:

“… the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the continuing or past consumption of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.”[110]

[109] SoP2599, clause 8

[110] SoP2599, clause 8

The Authority’s statement about the causes of “being obese” begins with a statement that it was not able to determine a SoP in respect of obesity as it is of the view that obesity is not a disease or injury within the meaning of s 5D(1) of the VE Act. It had, though, reviewed recent sound medical-scientific evidence and had:
“… found that the causes of ‘being obese’ are once more of the following factors preceding ‘being obese’:
(a)exposure to an environment which encourages caloric intake, where this caloric intake is excessive for energy needs and cannot be compensated by adequate physical activity, and which has resulted in a weight gain of at least 20% of the baseline weight;
(b)undergoing therapy with a drug, listed below which has resulted in a weight gain of at least 20% of the baseline weight;
(c)suffering from a binge-eating disorder, which has resulted in a weight gain of at least 20% of the baseline weight;
(d)suffering from hypercortisolism, which has resulted in a weight gain of at least 20% of the baseline weight;
(e)suffering from hypothyroidism, which has resulted in a weight gain of at least 20% of the baseline weight;
(f)suffering from a hypothalamic disorder causing hyperphagia, which has resulted in a weight gain of at least 20% of the baseline weight.”

The Authority’s statement goes on to explain the meaning of some of the terms that it used. They include:
“‘baseline weight’ means the weight level which was being maintained prior to the effect of the particular factor specified;
…
‘hypercortisolism’ means excessive production of or administration of hydrocortisone, or other glucocorticosteroids, as in Cushing’s syndrome, attracting ICD code 255.0 or 255.3;
‘hypothalamic disorder’ means a condition affecting the ventromedial area of the hypothalamus. This can result from tumour, trauma, granulomatous infections, central nervous system infections, irradiation therapy or surgery;
‘hypothyroidism’ means the functional state resulting from insufficiency of thyroid hormones, attracting ICD code 243, 244 or 246;
LIST OF DRUGS
1.Clozapine
2.Chlorpromazine
3.Perphenazine
4.Pimozide
5.Fluphenazine
6.Fluphenthixol
7.Trifluoperazine
8.Amitriptyline
9.Nortriptyline
10.Imipramine
11.Doxepin
12.Maprotiline
13.Phenelzine
14.Lithium
15.Cyproheptadine
16.Pizotifen
17.Glucocorticosteroids”

SoP0348 refers to a “clinically significant anxiety disorder” in

clause 5(n). It defines that term to mean:

“… any anxiety disorder attracting a diagnosis under DSM-IV sufficient to warrant ongoing management by a psychiatrist, counsellor or General Practitioner.”[111]

A reference to “DSM-IV” is a reference to the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders” (DSM-IV).[112]

[111] SoP0348, clause 7

[112] SoP0348, clause 7

WHAT ARE THE HYPOTHESES?

Mr Paget and Ms Garratt prepared a comprehensive chronology of
Mr Gibson’s service and of his medical conditions and treatment both during and after his service. In support of the claim originally made by Mr Gibson, they put forward hypotheses based on stress, alcohol, physical inactivity and obesity. They expanded the hypothesis relying on stress. In doing so, they relied on PTSD on the basis that it is a disorder causing stress and that it is a condition leading to substance (alcohol) abuse and smoking and withdrawal from society. Abuse of alcohol leads to obesity in the form of a beer gut and his withdrawal from society led to his becoming a truck driver in the Northern Territory (NT). It also led to his adopting the sedentary lifestyle and woeful diet of a truck driver in the NT.[113]

[113] Document entitled “Applicant’s Statement of Facts, Issues and Contentions 28/08/07” at 3 and paper generally

Each of the hypotheses put forward must be cast in terms of the particular circumstances of Mr Gibson’s service and its connection with the hypertension from which he suffered. Only if there is material pointing to a hypothesis of that sort can I proceed to consider the second of the four steps set out by the Full Court of the Federal Court in Repatriation Commission v Deledio.[114] No question of fact finding arises at this stage but if no such hypothesis arises, the application must fail.
[114] See [35] above

I will begin with the hypothesis based on Mr Gibson’s PTSD. As that condition has already been accepted as a war-caused injury or disease, there is necessarily a connection between the particular circumstances of Mr Gibson’s service and his PTSD. There is, in turn, material pointing to a connection between PTSD and hypertension in certain circumstances. That material is found in SoP2599 and SoP0348 themselves but whether they fit those SoPs is a matter for the second step in Repatriation Commission v Deledio.

Next, I will consider physical inactivity. There is no material pointing to Mr Gibson’s being physically inactive during his service. There is material that points to his being physically inactive at some time after his service. That material is found in the Statement of Facts and Contentions prepared by Mr Paget and
Ms Garratt. Normally, such a Statement would not meet the description of material but Ms Garratt, who has been permitted to pursue Mr Gibson’s remaining claim, is not legally represented. She should not be penalised because material that has been put in a Statement of Facts and Contentions should have been put in the form of a statement from her. The Statement does not mention a date from which Mr Gibson became physically inactive but it must be read with the other material that I have. That was found in my reasons for decision in Re Gibson and Repatriation Commission[115] where I record evidence given by Ms Garratt that she was his carer living with him in his caravan. Mr Gibson’s second marriage had taken place in 1989 and, although he and his wife had separated twelve months later, she would return to live with him for short periods over the following ten years. The material points to Ms Garratt’s knowledge of Mr Gibson’s physical inactivity from a date that is, at the earliest, some time in the 1990s.

[115] [2004] AATA 870 at [45] and [2006] AATA 1090 at [18]

There is no material pointing to a connection between the particular circumstances of Mr Gibson’s service and his being physically inactive per se. There is material pointing to a connection between his becoming physically inactive and his suffering from PTSD which is, in turn, accepted as connected with the particular circumstances of his service. That material is found in the SF&C when Mr Paget and Ms Garratt state that Mr Gibson’s PTSD led to his having a sedentary lifestyle.

The statements of Mr Paget and Ms Garratt at the hearing amount to material pointing to Mr Gibson’s being obese in the general sense in which that word is understood i.e. of being overweight.[116] There is no material pointing to
Mr Gibson’s being obese at the time of his service but there is material pointing to his becoming physically inactive and eating a woeful diet as a result of his suffering from PTSD. Mr Gibson’s PTSD is accepted as war-caused and so the hypothesis seeks to connect his hypertension with the particular circumstances of his service. Again, that material is found in the SF&C of Mr Paget and Ms Garratt.

[116] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

There is material pointing to Mr Gibson’s having acute alcoholism while he was serving in the Navy. That diagnosis was made on or about 9 August 1968.[117] The Commission concedes that there is material pointing to Mr Gibson’s alcohol abuse being related to his service.
[117] T documents at 53

The second step set out in the judgment of the Full Court of the Federal Court in Deledio is to ascertain whether there are SoPs relevant to the injury or disease claimed to be war-caused. I have already done that. The third step is to examine the hypotheses in light of those SoPs and to decide whether they are consistent with the template set out in, first, the SoP currently in force i.e. SoP0348. That means that that I must examine each of the hypotheses to see whether they contain one or more of the factors set out in cl 5 of that SoP. If they do not fit the template in SoP0348, I will look to SoP2599 and undertake the same task.

Each of the factors listed in cl 5 of SoP0348 requires me to have regard to the clinical onset of hypertension. I have already explained that this means that there is a clinical onset of a disease either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present. The material that I have points to the earliest time at which such a finding was made occurred when Dr Kosmas diagnosed hypertension on the basis of his clinical examination.[118] Dr Kosmas recorded his diagnosis on
Mr Gibson’s claim when he completed it on 2 August 1999. Although Dr Kosmas did not record the blood pressure readings that he had undertaken, his reference to his clinical examination as the basis of his diagnosis points to his having diagnosed hypertension in accordance with then prevailing standards. Material pointing to those standards is referred to in SoP2599 when it refers to the document entitled “The Management of Hypertension: a consensus statement” published in The Medical Journal of Australia, Vol 160 Supplementary 21 and dated 21 March 1994. If
Dr Kosmas reached his diagnosis by earlier standards, there is material pointing to those standards in Dr Simon Spedding’s note dated 11 September 2007.[119] Dr Spedding, who is a Medical Adviser for the Department of Veterans’ Affairs, wrote that “A blood pressure over 160/100 was the WHO definition of hypertension in the 1980’s and in clinical use in the early 1990s.” That is a reading above the reading of 140/90 required by SoP2599. Consequently, even if Dr Kosmas were to have used the World Health Organisation’s standards of the early 1990s in reaching his diagnosis, he would have made the same diagnosis had he used the standard referred to in SoP2599.

[118] T documents at 150
[119] Exhibit 5

Dr Kosmas did not make an entry in the box marked “Date of onset (if known)” although he did in relation to non insulin dependent diabetes and ischaemic heart disease in the same form. Mr Gibson had put “89” in answer to the question “When did you first become aware of the disability …?”[120] Given the meaning of “clinical onset”, I cannot have regard to Mr Gibson’s view of his condition as there is no indication that a medical practitioner diagnosed him as having that condition at that time.
[120] T documents at 150

There is earlier material that points to Mr Gibson’s blood pressure at an earlier time but it does not point to his suffering from hypertension as that term is used in SoP0348. On 18 October 1991, Dr Leow recorded Mr Gibson’s blood pressure as 110/70[121] i.e. a systolic reading of 110 mmHg and a diastolic reading of 70 mmHg. Dr Leow was Mr Gibson’s general practitioner at the time. This is a reading that points to Mr Gibson’s not suffering from hypertension as it is understood in either SoP as it less than a reading of 140/90. Dr Leow makes no reference to medication Mr Gibson might have been taking to lower his blood pressure. There is material from Dr Spedding that, even if Mr Gibson had been taking such medication, it would not have reduced his blood pressure readings to that level. In light of this, I have reached the view that there is no material that points to there being a clinical diagnosis of Mr Gibson’s hypertension before 2 August 1999.
[121] T documents at 173

When I have regard to the hypothesis based on Mr Gibson’s PTSD,
I have looked to clause 5 and particularly to his suffering from a clinically significant anxiety disorder for six months immediately before the clinical onset of his hypertension. DSM-IV lists PTSD as one of the disorders it describes as “Anxiety Disorders”. As appears below, he attended a psychiatrist, the late Dr Chris Lloyd, on a regular basis from 1995 to 1999 and that he was receiving ongoing management from that psychiatrist during the course of that period. One of the conditions for which Mr Gibson received that ongoing management was PTSD. Given the material pointing to the date of the clinical onset of Mr Gibson’s hypertension, I have looked to the six month period preceding 2 August 1999 to see whether there is material pointing to Mr Gibson’s suffering from PTSD during that period.

The late Dr Chris Lloyd, who was a psychiatrist, wrote a report on 14 October 1999. He noted that he had been seeing Mr Gibson since 14 March 1995 in his capacity as a consultant psychiatrist. Between 1995 and 12 October 1999,
Dr Lloyd had seen Mr Gibson on 18 occasions. Among the material to which he had regard in preparing his report was a referral letter from Dr Manju Chakrabiarti dated 17 February 1995. Dr Chakrabiarti had referred Mr Gibson noting that he suffered from chronic muscle fatigue and attention deficit disorder. Mr Gibson had reported fatigue, depressed mood, poor concentration, poor memory, irregular sleep and past feelings of hopelessness and helplessness. Mr Gibson had told Dr Lloyd about a history of chronic depression and fatigue dating back to the 1980s, learning difficulties since childhood, a head injury and PTSD secondary to his war service.[122]

[122] T documents at 251-252

Dr Lloyd recorded Mr Gibson’s war service history. This passage appears in my previous reasons ([2004] AATA 870 at [57]) and I will not repeat it. Dr Lloyd wrote in his report that:
“Since that time, he has been having nightmares regarding the service approximately once per week, intrusive recollections, particularly regarding mines, increased startle reactions, irritability, verbal aggressiveness, avoidance of crowds and people, recollections during the day, particular colour pictures in his mind of ‘most everything, boiler room, people, faces, action stations, being locked in physically, couldn’t leave my post’.”[123]
[123] T documents at 254

Dr Lloyd used DSM-IV to make his diagnoses. Among them was a diagnosis for PTSD, which he described in the following way:
“Mr Gibson would appear to be criteria for this disorder, in that, he has been exposed to an incident involving a very real possibility of either serious injury or death, and that experience has resulted in profound feelings of helplessness, and fear as it was occurring. Since that time he has been left with intrusive recollections, irritability, phobic symptoms, ie avoidance, of reminders of the incident and of people, the presence of triggers, nightmares about the accident, intrusive recollections during the day, which have been vivid enough to be seen as flashbacks. This appears to be a chronic condition in that, it is present for more than six months, and to significantly impair social, occupational and interpersonal functioning.”[124]
[124] T documents at 255

When read as a whole, it seems to me that, contrary to the submission made on behalf of the Commission, Dr Lloyd’s report is pointing to Mr Gibson’s having suffered from PTSD from a date well before six months before the date of the report. The reference to its being present for more than six months is to identify it as a chronic, rather than an acute, condition. When read with Dr Lloyd’s description of Mr Gibson’s description of his symptoms, it is clear that he considered that
Mr Gibson had suffered from PTSD for a much longer period and, indeed, since he was exposed to the boiler room incident. In a medical context, the word “chronic” is used to refer to “long-continued; of long duration or frequent recurrence …”.[125] There is material pointing to the hypothesis fitting the template provided for in SoP0348.

[125] Blakiston’s Gould Medical Dictionary, 5^th edition

When I match the other hypotheses against SoP0348, I do not find material pointing to their fitting the template. Beginning with obesity, I have the statements of Mr Paget and Ms Garratt of Mr Gibson’s being overweight. What I do not have is material that points to his being obese in the sense of having a BMI of 30 or greater. There is no material that points to his weight or his height at the time of the clinical onset of hypertension.

In so far as alcohol is concerned, Mr Gibson certainly ingested, on average, at least 200 grams per week of alcohol but not for a period of at least six months before the clinical onset of hypertension. The date of clinical onset was
2 August 1999 but the only material that I have points to Mr Gibson’s having ceased to drink alcohol six or seven years before he saw Dr Chris Lloyd, psychiatrist, on
14 October 1999.[126] No material points to his having consumed the requisite amount of alcohol for a continuous period of at least six months before 2 August 1999.

[126] T documents at 253

Turning to physical inactivity, there is no material that goes beyond
Mr Gibson’s leading a sedentary lifestyle. Clause 5(m) does not turn on physical inactivity as such. What it turns on is “an inability to undertake more than a mildly strenuous level of physical activity” for the requisite period. There is a difference between a person’s leading a certain type of life that does not include a certain level of physical activity and a person’s having an “inability” to undertake that level of physical activity. I have material pointing to the former but not to the latter. That is so even though I acknowledge that there is material pointing to his being overweight. A person’s being overweight, though, does not necessarily lead to the conclusion that he or she has an inability to undertake the requisite level of physical activity.

As these three hypotheses do not fit the template in SoP0348, I have looked to their fit with SoP2599. For the reasons that it does not fit the template in SoP0348, the obesity hypothesis does not fit SoP2599. Again, there is no material pointing to his BMI. In the case of SoP2599, there is a further reason why it does not fit. That reason is that there is no material pointing to the reasons for Mr Gibson’s carrying the weight he did. Under that earlier SoP, “being obese” requires material linking an increase in body weight with particular causes. None of those particular causes is PTSD. Therapy with certain drugs is a cause but there is no material that points to Mr Gibson’s being treated with any of those drugs or of there being a weight gain of at least 20% of his baseline weight as a result.

The alcohol hypothesis does not fit the template in SoP2599 for the same reason that it does not fit SoP0348. Physical inactivity is not noted as a cause in SoP2599 and so the hypothesis based on that does not fit the template it sets out.

The upshot of this consideration is that there is only one hypothesis that fits either of the applicable SoPs. It is the only hypothesis that is reasonable and it is the hypothesis that Mr Gibson’s PTSD led to his suffering from hypertension. That is the hypothesis that must be considered in the fourth step set out by the Full Court of the Federal Court in Deledio. I must consider whether, under s 120(1), I am satisfied beyond reasonable doubt that Mr Gibson’s hypothesis was not war-caused. If I am not so satisfied, the claim must succeed but, if I am so satisfied, the claim must fail. It is at this stage of the process that I must find facts from the material before me. This burden imposed by s 120(1) has been described as a “burden of disproof” by Toohey J said in Law v Repatriation Commission.[127] His Honour described it as a heavy burden. I do not consider that it has been met in this case. My examination of the material leads me to conclude that the hypothesis could be incorrect but it does not lead me to conclude that Mr Gibson’s hypothesis was not war-caused within the meaning of the VE Act.
[127] (1980) 29 ALR 64 at 74

For the reasons I have given, I:
1.set aside the decision of the Repatriation Commission dated 22 March, 2000 and affirmed by the Veterans’ Review Board on 5 February, 2001 regarding the applicant’s claim for hypertension; and
2.substitute for that decision, a decision that the applicant’s hypertension was war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986.

I certify that the one hundred and twenty preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed: .......................................................................
Kate Conners Associate

Dates of Hearing 4 December 2008

Date of Decision 20 February 2009
Representatives for the Applicant Ms Monica Garratt and Mr Terry Paget

Advocate for the Respondent Mr Adrian Crowe
Department of Veterans’ Affairs

The SoP previously in force was SoP No. 35 of 2003 as amended by SoP No. 3 of 2004. On
5 September 2007, the Authority gave notice under s 196G of its intention to carry out an investigation into three specific matters related to hypertension.