Griffin v Repatriation Commission
[2004] FMCA 486
•27 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GRIFFIN v REPATRIATION COMMISSION | [2004] FMCA 486 |
| ADMINISTRATIVE LAW – Appeal from AAT – veterans’ entitlements – Deledio – disordered joint mechanics – Statement of Principles – cervical spondylosis – thoracic spondylosis. |
Administrative Appeals Tribunal Act 1975 (Cth), s.44
Veterans’ Entitlements Act 1986 (Cth), ss.13, 119, 120, 120A, 196
Repatriation Commission v Hill [2002] FCAFC 192
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 188 ALR 176
| Applicant: | RAYMOND WILLIAM GRIFFIN |
| Respondent: | REPATRIATION COMMISSION |
| File No: | MZ 457 of 2003 |
| Delivered on: | 27 October 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 6 May 2004 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | Mr D. De Marchi, solicitor |
| Solicitors for the Applicant: | De Marchi & Associates |
| Counsel for the Respondent: | Mr P. Hanks, with Ms McDonald |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
THAT the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 457 of 2003
| ROBERT WILLIAM GRIFFIN |
Applicant
And
| REPATRIATION COMMISSION |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from a Notice of Appeal filed by the applicant on 23 December 2002 seeking judicial review of the decision of the Administrative Appeals Tribunal on 11 December 2002 to affirm the decision made by the Veterans’ Review Board (“V.R.B.”) on 4 March 2002. The V.R.B. affirmed the decision of the respondent that the conditions of cervical and thoracic spondylosis suffered by the applicant were not war-caused and that his pension should continue to be paid at 100 per cent of the General Rate.
The history
The applicant was born on 3 May 1923 and served in the Australian Army from 30 December 1941 to 4 July 1946, which included service overseas. During this service, the applicant suffered an injury when he fell from an observation tower in Dutch New Guinea (“the fall”). The applicant continued to work as a gunner following the fall, often requiring him to carry the mortar plate and heavy ammunition through jungle. After the war the applicant worked as a motor trimmer until he retired in 1983 at the age of 60.
It has previously been accepted that the applicant’s conditions of anxiety disorder, hearing loss, duodenal diverticula (with ulcer), lumbar spondylosis, malaria BT and post malarial headaches, hookworm and cholelithiasis with operation were war-caused.
The subject of these proceedings is the applicant’s claim that, in addition to the above conditions, he has also suffered back and neck pain since the fall, and that his conditions of cervical and thoracic spondylosis were war-caused. According to the applicant, various medical practitioners supported his claim that he had suffered a significant loss of range of movement in the lumbar spine, cervical spine and thoracolumbar spine.
On 29 March 1999 the Repatriation Commission (respondent) rejected the applicant’s claim in respect of cervical and thoracic spondylosis. On 4 March 2002 the V.R.B. affirmed the respondent’s decision.
The applicant appealed the V.R.B.’s decision to the Administrative Appeals Tribunal (“the Tribunal”) on 10 April 2002. The Tribunal was required to consider whether the material before it raised a reasonable hypothesis connecting a disease, injury or death (the condition) to war service, the four-step process of such consideration having been laid down by the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”).
On 11 December 2002 the Tribunal affirmed the decision under review and I adopt as an accurate summary of the Tribunal’s finding, the respondent’s summation contained in their submissions filed 6 November 2003 under the heading “D. The AAT’s Reasoning” and set out in paragraphs 22 to 28 inclusive, as follows:
22.The AAT first found that Mr Griffin suffered from cervical spondylosis – AB 197, paragraph 31; but it was not reasonably satisfied that the condition of thoracic spondylosis was established – AB 198, paragraph 32. (None of the grounds of appeal challenges the AAT’s finding on thoracic spondylosis.)
23.Turning to the first of the four steps laid down in Repatriation Commission v Deledio, the AAT said that the material pointed to a hypothesis connecting cervical spondylosis with Mr Griffin’s service. (In the context of the material before the AAT, the hypothesis was that the cervical spondylosis resulted from the fall in New Guinea – see AB 200, paragraph 40.)
24.The AAT rejected Dr Fraser’s claim that it was “illogical to accept [spondylosis] in the lumbar spine and not in the cervical … spine” (see paragraph 21 above) because the factors that must be met were those provided for in the SoP, and lumbar spondylosis had been accepted before the introduction of SoPs.
25.Turning to paragrah 5(h) of the SoP, the AAT found that the whole of the evidence did not point to Mr Griffin having the symptoms and signs of pain, tenderness and altered mobility of the cervical spine, as required by the definition of “trauma to the cervical spine”; it followed that the hypothesis that Mr Griffin’s cervical spondylosis was caused by “suffering a trauma” was not reasonable because it was not pointed to by the evidence – AB 200-201, paragraph 41.
26.So far as paragraph 5(e) was concerned, there was no medical evidence pointing to “disordered joint mechanics” within the 2002 SoP or to “malalignment of the cervical spine” within the 1999 SoP.
26.1 There was no evidence suggesting that the retrolisthesis found in 1992 was connected with Mr Griffin’s service – see AB 201, paragraph 42.
26.2 There was no radiological evidence, as was required for the application of the definition of “disordered joint mechanics” in the 2002 SoP – see AB 201, paragraph 44.
26.3 No evidence pointed to malalignment of the cervical spine as defined in the 1999 SoP; and malalignment was not raised by Mr Griffin’s evidence – AB 201-202, paragraph 44.
27.Paragraphs 5(j) of the 1999 SoP and 5(i) of the 2002 SoP referred to “cervical intervertebral disc prolapse” before the clinical onset of cervical spondylosis. The AAT found that there was nothing in the medical evidence taken as a whole (including the evidence of Dr Fraser) that suggested the disc prolapse was present on or connected with service – AB 201, paragraph 43.
28.Because the hypotheses connecting cervical spondylosis with service were not consistent with the templates in the SoPs, those hypotheses were not reasonable, the third step in Deleedio [sic] was not met and there was no need to consider the fourth step – AB 202, paragraph 45.
On 23 December 2002, the applicant filed a Notice of Appeal in the Federal Court of Australia, being V903 of 2002, pursuant to section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), seeking the Tribunal’s decision be set aside. The matter was transferred to this Court for hearing, being MZ 457 of 2003, pursuant to an Order of Justice Weinberg on 2 May 2003.
In the applicant’s submission, which was filed on 31 October 2003, it is claimed, summarily, that the Tribunal erred in law as follows:
a)by requiring direct medical evidence be produced to show the applicant suffered “disordered joint mechanics” (as defined in the Statement of Principles (“SoP”) contained in the Veterans’ Entitlements Act 1986 (Cth) (the “VE Act”));
b)by requiring that the medical evidence as a whole suggest a disc prolapse be present and be connected to service – the material only had to point to the prolapse and connection to service;
c)by relying on the V.R.B.’s assessment that the hypothesis was not reasonable instead of the Tribunal making its own assessment, and thereby rejecting the applicant’s statement that he had suffered an injury on service at the third stage of Deledio rather than at the fourth stage;
d)by requiring that medical evidence be led before the Tribunal could make a decision in relation to the issue of disordered joint mechanics;
e)by rejecting favourable material on the balance of probabilities but accepting unfavourable material on the same balance, when assessing whether the SoP was met; and
f)by providing inadequate and insufficient reasons for its determination.
The applicant’s arguments were rebutted in the respondent’s submissions, filed on 6 November 2003. In summary, the respondent argued that:
a)the presence of “disordered joint mechanics” is required to connect the condition to service, and according to Repatriation Commission v Hill (2002) 69 ALD 581 there must be material before the decision-maker “pointing to each element that the SoP makes essential for the hypothesis to be reasonable”;
b)there was no material before the Tribunal to suggest the existence of disc prolapse before the clinical onset of cervical spondylosis, and the Tribunal decided this question of fact appropriately to determine whether any elements of a hypothesis as required by the SoP existed;
c)the Tribunal did not rely solely on the V.R.B.’s decision that there was no reasonable hypothesis, but had regard to the whole of the material;
d)the Tribunal made a finding of fact in relation to disordered joint mechanics, saying that there was no material evidencing same in the applicant’s case, and did not apply a burden of proof to either party;
e)the Tribunal did not reject any material or apply a particular burden of proof in its assessment of the material; and
f)the applicant’s submissions provided no particulars of the alleged deficiency in the Tribunal’s reasoning provided, and there was no such deficiency.
The law
Section 13(1) of the Veterans’ Entitlements Act 1986 (Cth) (the “VE Act”) requires the Commonwealth to pay a pension to a veteran in circumstances where a war-caused injury or disease has rendered that veteran incapacitated. The circumstances in which the injury or disease is taken to be war-caused are set out in section 39(1) of the VE Act. Section 119 of the VE Act requires that the Repatriation Commission in hearing and determining the claim should not be bound by technicalities.
Where a claim relates to operational service, the standard of proof to be applied to the question of whether an injury or disease is war-caused and whether a veteran is suffering from an injury or disease is set out in the provisions of sections 120 and 120A, as follows:
Section 120 Standard of Proof:
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death 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 or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2)Where a claim under Part IV:
(a) in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or
(b) in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member;
the Commission shall determine that the injury was a defence-caused injury, that the disease was a defence-caused disease or that the death of the member was defence-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note 1: For member of a Peacekeeping Force, peacekeeping service, member of the Forces and hazardous service see subsection 5Q(1A).
Note 2: This subsection is affected by section 120A.(3)In applying subsection (1) or (2) 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 the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, 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 or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.(4)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.
Note: This subsection is affected by section 120B.
(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a) an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b) a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c) the death of a person is war-caused or defence-caused; or
(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
(7)In this section:
hazardous service means service in the Defence Force, before the MRCA commencement date, that is of a kind determined in writing by the Minister administering section 1 of the Defence Act 1903 to be hazardous service for the purposes of this section.
Section 120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).(2)If the Repatriation Medical 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, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3)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.
Note: See subsection (4) about the application of this subsection.(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.
Each of the factors identified according to the Statement of Principles (“SoP”) must be related to the person’s service. The phrase “related to service” is defined in section 196B(14) of the VE Act in similar terms to section 9(1) that is requiring a causal relationship.
The Full Court of the Federal Court in Deledio held:
(i) 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.
(ii) 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) reasonable and, in such consequence, the application must fail.
(iii) If a 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 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.
(iv)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 doing so, no question of onus of proof or the application or any presumption will be involved.
In Repatriation Commission v Hill [2002] FCAFC 192 (“Hill”), the Full Court determined as follows at paragraph 57:
Whatever the situation may have been in relation to claims before 1 June 1994, the effect of s.120A(3) (where there is a SoP under s.196B(2)) is that a hypothesis is reasonable only if it is upheld by the SoP. Pursuant to s.196B(2), the SoP must set out "the factors that must as a minimum exist" and "which of those factors must be related to service". The result is that, where it applies, the SoP prescribes the essential content of what is a reasonable hypothesis, for s.120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of a veteran's particular service. In order to satisfy ss.120(3) and 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable.
In Bull v Repatriation Commission (2001) 188 ALR 176 at 761, the Full Court of the Federal Court in the judgment of Emmett and Alsop JJ at paragraphs 22 and 23 provided:
[22] The formation of the opinion called for by subs 120(3) involves an assessment of the factual material before it. It involves reaching an opinion about a factual matter. It is, in that sense, a question of fact: Bey, supra at 373 and Repatriation Commission v Owens (1996) 70 ALJR 904. Here the Tribunal, on the material before it, formed the opinion that a relevant reasonable hypothesis was not raised from the material. The primary judge said that that was a question of fact and that no error of law (and so no question of law for s.44 of the AAT Act) was presented.
[23] If the Tribunal examined all the material and if the Tribunal followed the correct approach to its task under subs. 120(3) as enunciated in East, any error will be one of fact, unless the opinion was one which could not have been formed by a reasonable person who correctly understood the law under which he or she acted or unless the opinion was one which was not capable of being reasonably formed: R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1994) 69 CLR 407, 430; Bankstown Municipal Council v Fripp (1916) 26 CLR 385, 403; Foley v Padley (1984) 154 CLR 349, 353, 370; Buck v Bavone (1976) 135 CLR 110, 118-9; Corporation of the City of Enfield v Development Assistance Commission (2000) 199 CLR 135, 150, at [34]. The "reasonableness" of the formation of the opinion embodied within this proposition should be understood as saying no more than did Starke J in Boucaut Bay Co (In Liq) v The Commonwealth (1927) 40 CLR 98 at 101, approved by Windeyer J in FCT v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28 at 57 when he said:
... He must not act dishonestly, capriciously or arbitrarily:... So long, however, as the Minister acts upon circumstances ... giving him a rational ground for the belief entertained, ...
Conclusions and findings
The first ground of appeal relied upon by the applicant is that he claims that the Tribunal was wrong in law in requiring that medical evidence be produced pointing to the applicant having disordered joint mechanics as defined in paragraph 8 of the SoP of 2002. That definition requires the presence of one of seven conditions.
At paragraph 42 (CB 201), the Tribunal found that:
There is no medical evidence pointing to the applicant having disordered joint mechanics as defined in the SoP and as applying in factor 5(e)(SoP No 50 of 202).
The Full Court in Hill makes it clear that there must be material before the decision maker pointing to each element of the SoP makes essential for the hypothesis to be reasonable.
I agree with the submission of the respondent that given each of the elements referred to is a medical condition, it is impossible to conceive of evidence that would point to one of the conditions required by the definition of “disordered joint mechanics” that was not medical evidence. Accordingly, ground one of the applicant’s claim is not made out.
The applicant’s second contention is that the Tribunal was wrong in requiring that medical evidence as a whole suggest that a disc prolapse be present and connected with service.
In paragraphs 42 and 43 (CB 201), following the finding referred to in the above paragraph 18, the Tribunal states:
…nor that he had malalignment of the cervical spine as defined in SoP No 31 of 1999. Though Dr Hadley noted a retrolisthesis in X-rays in 1992 there is no evidence that suggests this condition being present earlier, so as to connect a problem with joint mechanics to service as is required by clause 4 of the SoP. Dr Fraser does not suggest this as a possibility.
Dr Fraser states that a hypothesis is raised under factor 5(j) of SoP No 31 of 1999 (5(i) of SoP No 80 of 2002). However, while his report refers to radiological evidence of disc degeneration and of symptoms of nerve root irritation, suggestive of disc prolapse, this evidence concerns the state of the applicant’s discs now. There is nothing in his report or elsewhere in the medical evidence taken as a whole, that suggests that disc prolapse was present on, or connected with service, as is required by clause 6 and by s196B(14). Neither does the applicant’s evidence to the VRB, that neck pain commenced ten years ago, support the hypothesis as a reasonable one.
The applicant does not suggest that there was any material before the Tribunal that pointed to the existence of disc prolapse before the clinical onset of cervical spondylosis. It is almost impossible to envisage circumstances where the existence of disc prolapse was pointed to in the absence of medical evidence.
In finding that there was nothing in Dr Fraser’s evidence or elsewhere pointing to disc prolapse at the time of or connected with service, it cannot be said that the Tribunal “unreasonably raised the requirements” to be met by the applicant. There must, as the Full Court said in Hill, be material pointing to each element that the SoP makes essential.
It was submitted by the applicant that the Tribunal rejected Mr Hadley’s evidence. However Mr Hadley, who reported in 1992, noted a retrolisthesis in x-rays in 1992 but there was no evidence that suggested this condition was present earlier and his report said nothing about the applicant’s cervical spondylosis or about disc prolapse. Dr Fraser did not refer to any evidence of disc prolapse. His reference to paragraph 5(j) of the 1999 SoP appears to be an error because Dr Fraser referred only to a “disorder injury to the cervical spine”, the factor prescribed by 5(h), not 5(j) of the 1999 SoP. Further, there is no substance to the claim made by the applicant that the Tribunal required that every part of Dr Fraser’s report support the factors contained in the SoP. The assertion that the Tribunal’s conclusion was based on the rejection of the hypothesis and the factors which pointed to it, misconstrues the Tribunal’s reasoning.
The Tribunal did no more than decide the question of fact raised by sections 120(3) and 120A(3), that is whether the material before it pointed to the elements of the hypothesis as required by the SoP. That was a question of fact for the Tribunal to determine and does not provide the basis for an appeal under section 44(1) of the Administrative Appeals Tribunal Act 1975.
The third ground for review contended by the applicant was that the Tribunal wrongly concluded that the applicant’s evidence at the V.R.B. did not support the hypothesis as being reasonable was a relevant matter to its determination as to whether the SoP had been met. The Tribunal noted in paragraph 41 (CB 200) that the complaint of symptoms in the neck was very recent. The applicant’s evidence to the V.R.B. was that the pain in the neck first troubled him in about 1992.
That evidence was part of the material before the Tribunal. In deciding whether the applicant had suffered a trauma to the cervical spine (related to service), the Tribunal was required to have regard to the whole of the material.
Fourthly, the applicant submitted that the Tribunal was wrong in law in requiring medical evidence being led in order to conclude that there was disordered joint mechanics in the applicant. However, what the Tribunal said was to find that there was no material pointing to disordered joint mechanics, which was defined in technical medical terms in clause 8 of the 2002 SoP. It did not require that medical evidence be led but made a finding of fact that there was no material pointing to an essential element of the hypothesis prescribed by the SoP.
The applicant’s next claim was that the Tribunal erred in law in determining on the balance of the material that the SoP was not met when it rejected favourable material on the balance of probability and accepted unfavourable material on the same balance.
The Tribunal did not reject any material. It considered the whole of the material before it and found that the material did not point to the elements required by the SoP for a reasonable hypothesis. Nor did it assess material “on the balance of probability”. It said that the material did not point to the various elements required by the SoP. I am satisfied that this was the correct approach pursuant to section 120(3) and section 120A(3). The Tribunal assessed the applicant’s submissions on their merits and was not affected by the Repatriation Commission not being represented before it.
Finally the applicant submitted that the Tribunal erred in not providing adequate and sufficient reasons for its determination. I am satisfied that the Tribunal’s reasons clearly identify why it affirmed the Commission’s decision that the applicant’s condition was not war caused. The material before it did not point to the elements of a reasonable hypothesis as required by the SoP.
In all the circumstances, and for the reasons aforementioned, I am satisfied that the Tribunal did not fall into any error of law and the application should be dismissed. I make orders accordingly.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: Nicole Lane
Date: 27 October 2004
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