Gilkinson v Repatriation Commission

Case [2011] FCAFC 133

FEDERAL COURT OF AUSTRALIA

Gilkinson v Repatriation Commission [2011] FCAFC 133

Citation: Gilkinson v Repatriation Commission [2011] FCAFC 133
Appeal from: Gilkinson v Repatriation Commission (2010) ALD 547, [2010] FCA 1292
Parties: DAVID GILKINSON v REPATRIATION COMMISSION
File number: NSD 1756 of 2010
Judges: PERRAM, NICHOLLS AND ROBERTSON JJ
Date of judgment: 28 October 2011
Catchwords: DEFENCE AND WAR - Veterans’ entitlements – war-caused injury or disease – appeal from decision of Administrative Appeals Tribunal – whether Tribunal erred in failing to consider s 196B(14)(b) of the Veterans’ Entitlements Act 1986 (Cth) in determining whether a factor causing, or contributing to, an injury or disease was related to service rendered by the appellant – scope of s 196B(14)(b) when compared to s 196B(14)(d) – meaning of “arose out of, or was attributable to”
Legislation: Repatriation Act 1920 (Cth)
Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth)
Veterans’ Entitlements Act 1986 (Cth) ss 8, 9, 70, 120, 120A and 196B
Cases cited: Deledio v Repatriation Commission (1997) 47 ALD 261 followed
Hill v Repatriation Commission (2009) 177 FCR 434 followed
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 referred to
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied
Repatriation Commission v Law (1980) 31 ALR 140 cited
Repatriation Commission v Money (2009) 173 FCR 410 cited
Roncevic v Repatriation Commission (2005) 222 CLR 115 cited
Date of hearing: 27 May 2011
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 46
Counsel for the Appellant: Mr NJ Williams SC with Mr C Colborne
Solicitor for the Appellant: Legal Aid
Counsel for the Respondent: Mr GR Kennett SC with Ms F Ramsay
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1756 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

DAVID GILKINSON
Appellant
AND:

REPATRIATION COMMISSION
Respondent

JUDGES:

PERRAM, NICHOLAS AND ROBERTSON JJ

DATE OF ORDER:

28 OCTOBER 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The orders made by the primary judge on 25 November 2010 be set aside and in lieu thereof:

2.1the decision of the Tribunal be set aside;

2.2the case be remitted to the Tribunal to be decided again according to law either with or without the hearing of further evidence.

3.The respondent pay the appellant’s costs of the appeal and of the proceeding before the primary judge.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1756 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

DAVID GILKINSON
Appellant
AND:

REPATRIATION COMMISSION
Respondent

JUDGES:

PERRAM, NICHOLAS AND ROBERTSON JJ

DATE:

28 OCTOBER 2011

PLACE:

SYDNEY

REASONS FOR JUDGMENT

PERRAM J

  1. Mr David Gilkinson is a former member of the Royal Australian Navy who served on HMAS Sydney on ten operational voyages including a number…

Continue reading Gilkinson v Repatriation Commission

Sign in free to access the full text

Details
AGLC
Gilkinson v Repatriation Commission [2011] FCAFC 133
Case
[2011] FCAFC 133
Decision Date

CaseChat Overview and Summary

The case of Gilkinson v Repatriation Commission concerns a dispute between Mr David Gilkinson and the Repatriation Commission regarding the veteran's entitlement to pension benefits for sleep apnoea, which Mr Gilkinson claims is related to his operational service in the Australian Navy. The matter was originally heard by the Administrative Appeals Tribunal, which rejected Mr Gilkinson's claims. The Federal Court subsequently set aside the Tribunal's decision, directing the Tribunal to consider the effect of shift work as a contributing factor to Mr Gilkinson's condition. The Tribunal again rejected the claim, leading to this appeal to the High Court.

The central legal issue in this appeal is whether the Administrative Appeals Tribunal erred in law by failing to consider s 196B(14)(b) of the Veterans’ Entitlements Act 1986 (Cth) when determining if the factor causing or contributing to Mr Gilkinson's sleep apnoea was related to his service. Specifically, the question is whether the Tribunal should have applied the test of "arose out of, or was attributable to" service as outlined in s 196B(14)(b), in addition to considering if the factor was contributed to in a material degree by service as required by s 196B(14)(d). The primary judge found that the Tribunal did not err in law by not applying s 196B(14)(b), but Mr Gilkinson appealed, arguing that the Tribunal should have asked the correct question under s 196B(14)(b).

The Court considered the statutory language and the structure of s 196B(14) as a whole. It noted that while the phrases "arose out of" or "was attributable to" service might appear similar, they address different aspects of the contribution of service to the injury or disease. The Court held that s 196B(14)(b) does not necessarily encompass s 196B(14)(d) and that the Tribunal's application of s 196B(14)(d) was not erroneous. However, the Court found that the Tribunal should have considered s 196B(14)(b) as it applies to cases where the factor would not exist without the service. The Tribunal's error was in not posing and answering the correct question under s 196B(14)(b).

The Court allowed the appeal, set aside the orders of the primary judge, and remitted the case to the Tribunal for reconsideration. The Court also ordered the respondent to pay the appellant's costs of the appeal and the proceeding before the primary judge.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders made by the primary judge on 25 November 2010 be set aside and in lieu thereof:

2.1 the decision of the Tribunal be set aside;

2.2 the case be remitted to the Tribunal to be decided again according to law either with or without the hearing of further evidence.

3. The respondent pay the appellant’s costs of the appeal and of the proceeding before the primary judge.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The reasons of the learned primary judge are encapsulated at [41], [49] and [50] of her Honour’s judgment:41.Ordinarily, a phrase, such as “arose out of or was attributable to”, occurring in several places in the same statute, is to be construed as having the same meaning each time it occurs; Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618 per Mason J; see also Pearce and Geddes, Statutory Interpretation in Australia, 2001, 5th ed at 90-91. That general principle must, however, give way to contrary indications in the statute whether they are express or they arise from context. In my view when attention is given to all of the subclauses of s 196B(14), and when the purpose and structure of the section as a whole are considered, such contrary indications are evident. This conclusion is reinforced when, in the light of these aspects of s 196B, the section is compared with s 101(1)(b).…49 . . . [Section 196B(14)(b)] requires the applicant’s operational service to be the dominant or effective cause of the factor causing or contributing to the applicant’s disease. The legislature’s evident intention to provide a more refined and nuanced approach in the context of an applicable statement of principles would be undermined by the construction of the subclause for which the applicant contends.50.The applicant’s submission that the Tribunal should have applied the test of “related to [service]” in s 196B(14)(b) was premised on the subsection having a lower threshold than s 196B(14)(d) with its requirement of materiality. On the meaning outlined above, however, subclause (b) imposes a more stringent test than subclause (d). In other words, the Tribunal applied the test that was more favourable to the applicant. In deciding that the applicant’s obesity did not contribute “in a material way” to his sleep apnoea the Tribunal relied on findings of fact that it was entitled to make. On those findings the applicant could not have succeeded had subclause (b) been applied.The facts We take the background facts, so far as they are relevant to this appeal, from the judgment of the primary judge:1The applicant, Mr David Gilkinson, suffers from sleep apnoea. He claims that this condition is related to operational service within the meaning of the Veterans’ Entitlements Act 1986 (Cth) (VE Act). On 14 September 2004 he lodged a combined application for the grant of pension entitlements in respect of sleep apnoea and for an increase in his existing pension. On 30 March 2005 the Repatriation Commission refused both claims. 2The Commission’s decision on both counts was affirmed by the Veterans’ Review Board on 24 February 2006. The applicant’s appeal to the Veterans’ Appeals Division of the Administrative Appeal Tribunal was similarly unsuccessful in relation to his claim for a pension in respect of his sleep apnoea. On 22 September 2009 the Federal Court set aside the Tribunal’s decision and remitted the matter to the Tribunal for further consideration; [2008] FCA 1441; 104 ALD 406. The Court found that the Tribunal had made an error of law in failing to consider the effect of shift work as a contributing factor to the applicant’s condition. 3Mr Gilkinson’s claim was again reviewed by the Tribunal and on 15 January 2010 it was again rejected. Mr Gilkinson sought review of this second decision in this Court. He alleges that the Tribunal erred in law by failing to pose and answer the correct question . . .. . . 5It is not in contention that the applicant served in the Australian Navy from 10 July 1965 to 9 July 1977 and that during that time he experienced operational service within the meaning of the VE Act. Critical to the decision of the Tribunal was that this operational service was not one continuous period but consisted of ten separate periods between February 1970 and November 1972 during which HMAS Sydney was on duty in an operational area . . .Consideration

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The learned primary judge was concerned that if subsection (b) was not given some more confined operation then it would effectively render subsection (d) superfluous. However, I do not think this can, with respect, be correct. Although there is some apparent similarity, the two provisions deal, I think, with discrete topics. Subsection (b) is concerned with those cases where the factor (which stands as a proxy for the injury or disease within the intersticies of ss 120 and 120A) would not exist without the service; subsection (d) with those cases where the factor would have existed in some form without the service but where the service can be seen as contributing to or aggravating it. I do not agree, therefore, that giving subsection (b) the same kind of operation as the same words in s 9(1)(b) and its predecessors should impact on the operation of subsection (d).Conclusion When these matters are brought to account I can see no reason to approach the wording of s 196B(14)(b) any differently to the wording of s 9(1)(b). The learned primary judge was moved to accept that the meanings of the words ‘arising out of’ or ‘was attributable to’ in the two provisions were different because of her Honour’s concern about the impact on s 196B(14)(d) but, for reasons given, I do not think that this can be correct. The appeal should be allowed with costs; the orders of the learned primary judge set aside and in lieu thereof it should be ordered that the appeal should be allowed with costs, the Tribunal’s decision be set aside and the matter remitted to the Tribunal for determination according to law. The narrow issue in this appeal is the relationship between ss 196B(14)(b) and 196B(14)(d) of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) and whether the Administrative Appeals Tribunal (“the Tribunal”) erred in law in that respect. The learned primary judge found there was no error of law in the Tribunal’s approach. The question of law raised on the appeal to the primary judge was whether the Tribunal erred in law by failing to pose and answer the correct question dealing with the appellant’s hypothesis that shift work and drinking on operational service contributed to his obesity. In short, the question is whether the Tribunal should have considered s 196B(14)(b) as well as s 196B(14)(d). The ground in the notice of appeal from the Tribunal explains how the issue arose:Amongst other things, the Applicant’s case was that shift work and alcohol consumption on operational service contributed to him becoming obese, and thus satisfying factor 5(b) of the Statement of Principles concerning Sleep Apnoea. There was evidence that the Applicant’s alcohol intake, while at sea, would have contributed to his energy intake and weight gain but that the contribution was likely to be minor. There was also evidence that the effect of shift work on the Applicant’s obesity would have been moderate. The Tribunal confined itself to s 196B(14)(d) of the Veteran’s Entitlements Act 1986, applied Comcare v Canute (2005) 148 FCR 232 and found that the shift work and alcohol consumption, on operational service, did not meet the threshold of being material contributors to the Applicant’s obesity. The Tribunal erred by failing to ask the correct question, in accordance with s 196B(14)(b), which was whether the Applicant’s obesity arose out of or was attributable to his shift work or alcohol consumption on operational service. Under s 196B(14)(b) there is no requirement for the contribution to be “material”. Factor 5(b) of the Statement of Principles, No 13 of 2005, concerning Sleep Apnoea was “being obese at the time of the clinical onset of sleep apnoea”.

Ratio Decidendi

Legal Principle Established

We take the background facts, so far as they are relevant to this appeal, from the judgment of the primary judge:1The applicant, Mr David Gilkinson, suffers from sleep apnoea. He claims that this condition is related to operational service within the meaning of the Veterans’ Entitlements Act 1986 (Cth) (VE Act). On 14 September 2004 he lodged a combined application for the grant of pension entitlements in respect of sleep apnoea and for an increase in his existing pension. On 30 March 2005 the Repatriation Commission refused both claims. 2The Commission’s decision on both counts was affirmed by the Veterans’ Review Board on 24 February 2006. The applicant’s appeal to the Veterans’ Appeals Division of the Administrative Appeal Tribunal was similarly unsuccessful in relation to his claim for a pension in respect of his sleep apnoea. On 22 September 2009 the Federal Court set aside the Tribunal’s decision and remitted the matter to the Tribunal for further consideration; [2008] FCA 1441; 104 ALD 406. The Court found that the Tribunal had made an error of law in failing to consider the effect of shift work as a contributing factor to the applicant’s condition. 3Mr Gilkinson’s claim was again reviewed by the Tribunal and on 15 January 2010 it was again rejected. Mr Gilkinson sought review of this second decision in this Court. He alleges that the Tribunal erred in law by failing to pose and answer the correct question . . .. . . 5It is not in contention that the applicant served in the Australian Navy from 10 July 1965 to 9 July 1977 and that during that time he experienced operational service within the meaning of the VE Act. Critical to the decision of the Tribunal was that this operational service was not one continuous period but consisted of ten separate periods between February 1970 and November 1972 during which HMAS Sydney was on duty in an operational area . . .Consideration Section 196B(14) prescribes where a factor causing, or contributing to, an injury, disease or death is related to service rendered by a person. The emphasis is in the text of the Act and relates back to s 196B(2)(e). Thus, in the present case, being obese at the time of clinical onset of sleep apnoea was related to service rendered by the appellant if, relevantly, that factor arose out of or was attributable to that service or was contributed to in a material degree by, or was aggravated by, that service. It is clear that the Tribunal expressly addressed at [41] s 196B(14)(d), that is, whether the factor of being obese at the time of the clinical onset of sleep apnoea was contributed to in a material degree by, or was aggravated by, the service rendered by Mr Gilkinson. The question is whether that provision necessarily covered the entirety of the ground of s 196B(14)(b). In our view, it cannot be said as a universal proposition that, for the purposes of the Act, whether a factor was contributed to in a material degree by, or was aggravated by, the appellant’s service is a broader test which always subsumes the question of whether a factor arose out of, or was attributable to, that service.