Hardcastle v Repatriation Commission -
[2001] FMCA 42
•29th June 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
Kenneth Hardcastle v Repatriation Commission [2001] FMCA 42
ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – Error of law s 44 Administrative Appeals Tribunal Act 1975 (Cth) -REPATRIATION – Entitlement to Pension – Hypertension – whether war caused – whether Applicant’s service related ingestion of salt supplements satisfies requirement of factor (c) of the SoP – Appeal dismissed – No error of law
Repatriation Commission vSmith (1987) 15 FCR 327 at 335 cited
Repatriation Commission v Deledio (1998) 83 FCR 82 followed
Veterans Entitlements Act 1986 (Cth) ss 7, 8, 9,120(4), 120B(b)
Statement of Principles Instrument No 65 of 1998
Administrative Appeals Tribunal Act 1975 (Cth) s 44
| Applicant: | Kenneth Hardcastle |
| Respondent: | Repatriation Commission |
| File No: | MZ278 of 2001 |
| Delivered on: | 29th June 2001 |
| Delivered at: | Melbourne |
| Hearing Date: | 25th May 2001 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr G Chancellor |
| Solicitors for the Applicant: | Williams Winter & Higgs |
| Counsel for the Respondent: | Mr P Hanks QC |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed
The Applicant shall pay the Respondent’s costs to be taxed in default of agreement.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE
MZ278 of 2001
KENNETH HARDCASTLE
Applicant
And
REPATRIATION COMMISSION
Respondent
REASONS FOR JUDGMENT
The Applicant appeals from a Decision of the Administrative Appeals Tribunal constituted by Senior Member Mrs J Dwyer delivered on 18 August 2000.
The Tribunal had affirmed a Decision under review which was a Decision by the Veterans Review Board (VRB) dated 13 August 1999. The VRB had affirmed a Repatriation Commission Decision of 10 September 1998 which had found that hypertension and trigeminal neuralgia were not war caused diseases within the meaning of that term in s 9 of the Veterans Entitlements Act 1986 (the Act) and did not satisfy the requirements of the Statement of Principles Instrument No 65 dated 18 April 2001 (the SoP).
The notice of appeal set out five grounds upon which the Applicant had relied. At the hearing however the Applicant pursued three of those grounds namely:-
a)The Tribunal failed to properly apply relevant principles to the interpretation and application of section 120B of the Act and the SoP;
b)The Tribunal failed to identify in its reasons why or in what circumstances the assessment of salt added as a supplement in accordance with the SoP is to be calculated and in particular whether that SoP supplement is confined to salt added by the Applicant personally, by a person or persons cooking his meals or in some other and what circumstances;
e)the Tribunal failed to identify whether some or all of the salt supplements as required by the SoP
i)need be related to relevant service; and/or
ii)be at a level after service which can be greater than the level ingested prior to service.
Counsel for the Applicant at the hearing adopted the Applicant’s Contentions of Fact and Law dated 26th April 2001 which had been prepared by other Counsel. In addition Counsel made further submissions and as indicated formally abandoned two of the five grounds of appeal.
The Respondent relied upon written submissions dated 18 April 2001 and 24 May 2001.
The legislative framework and certain facts in this matter are not in dispute. For convenience the Court adopts by way of summary the factual background referred to by the Respondent in its written submissions and which are agreed are common ground in the present case namely:
“11.1Mr Hardcastle rendered eligible war service in the Australian Army from 5 November 1941 to 23 October 1945 – AB 93, paragraph 4
11.2During his war service, Mr Hardcastle took 12 to 15 salt tablets a day after meals and also added salt to his meals; after service he did not continue to consume salt tablets but continued to add salt to his meals because he had become used to it and believed it was beneficial to him – AB 95, paragraph 13; AB 96, paragraph 16
11.3The accurate determination of Mr Hardcastle’s hypertension occurred in October 1953 – AB 94, paragraph 10
11.4Mr Hardcastle’s average daily ingestion of salt supplements (that is, salt added to food when cooking or eating) in the 1950s was 4.7 grams – AB96-97, paragraph 18
11.5During his war service, Mr Hardcastle may have been ingesting 15 grams of salt supplements per day but the AAT was not reasonably satisfied that he maintained that high ingestion of salt in the 6 months prior to October 1953 – AB 97, paragraph 20
11.6Mr Hardcastle lodged his claim for pension on 10 July 1988 – AB24-29.”
Likewise the legislative framework had been set out for convenience in the Respondent’s written submissions and no issue is taken as to the appropriate legislation to apply. It will be apparent from the grounds of appeal that the question of interpretation both of the legislation and of the SoP is in issue.
Section 9 of the Act provides for certain conditions to be met in order to ensure that a veteran’s injury or disease is taken to be war caused. For the present purposes the relevant sub-section is found in s 9(1)(b) which provides:-
(1)subject to this section, for the purpose 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)….
(d)….
(e)….
But not otherwise.”
It is common ground that the Applicant did not render operational service and the AAT accordingly was required to apply s 120(4) of the Act in deciding whether the Applicant’s hypertension and trigeminal neuralgia were war caused. It is not in issue that the Tribunal is required to determine that question to its reasonable satisfaction applying the civil standard of proof (see Repatriation Commission vSmith (1987) 15 FCR 327 at 335).
It was conceded by the Respondent that the Applicant’s trigeminal neuralgia would be war caused if his hypertension was war caused.
It is common ground that the AAT correctly stated that “the question whether or not hypertension is a war caused disease must be determined in accordance with s 120B(3) of the Act which requires that the Tribunal is to be reasonably satisfied that hypertension is war caused only if the connection raised between the disease and the Respondent’s service is upheld by the relevant statement of principles (SoP)”.
Section 120B(3) provides:-
“(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.”
It is relevant to note that the SoP’s are made pursuant to s 196B of the Act.
I accept the submissions made on behalf of the Respondent and it is not in issue that the function of the SoP made under s 196B(3) is to “prescribe the factors that may exist and which of those factors must be related to service before it can be said on the balance of probabilities that an injury, disease or death of a particular kind is connected with the circumstances of eligible war service.”
The Tribunal referred to the relevant SoP in this matter as indicated as being Instrument No. 65 of 1998 which relevantly provides as follows:-
“2. ….
(b)For the purposes of this Statement of Principles. “hypertension” means elevated blood pressure, evidenced by:
…
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
5.The factors that must exist before it can be said that, on the balance of probabilities, hypertension or death from hypertension is connected with the circumstances of a person’s relevant service are:
….
(c)ingesting at least 15 grams (25 mmol) of salt supplements per day on average for a continuous period of at least 6 months immediately before the accurate determination of hypertension; or
….”
As the Tribunal noted it is also significant to refer in this case to the definition in clause 8 of the SoP of “salt supplement” as follows:-
“Salt supplement” means salt added to food when cooking or eating or salt contained in salt tablets”.
There is no issue in the present case of an accurate determination of hypertension as it was conceded by the Applicant at the hearing before the Tribunal that the accurate determination of the Respondent’s hypertension occurred in October 1953 as indicated in the summary of facts which were not in issue.
Before this Court it was submitted on behalf of the Applicant that the failure of the Tribunal to interpret and apply s 120B of the Act and the SoP arose as a consequence of the constructions adopted by the AAT of the phrase “salt added to food when cooking or eating”. The Tribunal was criticised for indicating that that does not mean “salt added to food in processing or preparation”. A number of examples were presented to the Court of manufactured and/or processed food which would contain salt added during the manufacture or process and prior to purchase and/or consumption by the Applicant. It was submitted that the words have a broader meaning than that used by the Tribunal. In particular it was submitted that when the language is interpreted of the SoP then the Court and the Tribunal should not apply strict rules of statutory interpretation. I was reminded that this is beneficial legislation.
Nevertheless both Counsel referred me to the Full Court of the Federal Court Decision in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio). Specifically I was referred to page 96 of the Court’s judgment where it agreed with the observations of the primary Judge Heerey J who had stated, “Where an SoP is applicable, it is a statute backed declaration of what is proved or known scientific fact.”
Notwithstanding the statutory framework to which I have referred and the sentence from the Judgment of Heerey J approved by the Full Court of the Federal Court the Applicant has sought to indirectly criticise the SoP by suggesting that it was far too difficult a hurdle to overcome and that by inference the difficulty which can be illustrated by reference to evidence before the Tribunal strengthens the submission that the Tribunal’s construction of the definition of “salt supplement” is too narrow.
Essentially the Applicant’s submission relies upon the observation that foods purchased in a supermarket have often been prepared for consumption by “cooking” in one form or another and that it could not be intended that the SoP wished to exclude the salt added to those foods from the relevant calculation. As indicated a number of examples were given during the course of the hearing and it is apparent from the expert evidence that many of the foods purchased at a supermarket contain salt. Examples such as bread, processed cereals, margarine or butter were referred during the course of argument.
It was further submitted that the Court should have regard to the Macquarie Dictionary definition of the verb “cook” which provides as follows:
·To prepare (food) by the action of heat, as by boiling, baking, roasting etc;
·To subject (anything) to the action of heat;
·To prepare food by the action of heat.
In applying that definition the Applicant urged the Court to consider that the SoP in its reference to cooking does not identify who is the cook or what is meant by cooking.
The Respondent in its submissions rejected the notion that “salt supplement” should include salt added during manufacture or processing. It was submitted and I accept that the SoP is in accordance with Deledio, “a statute backed declaration of what is proved or known scientific fact”. It was further submitted however that the Court should consider the words in their context and that in doing so the Tribunal was correct in the construction it adopted in this case.
In particular reference was made to the juxtaposition of “cooking” with “eating” in the definition of “salt supplement”. It is further submitted that the language used in the definition is unambiguous and that there is no reference to salt being added during manufacture or processing.
The Tribunal in its Reasons for Decision in my view clearly addressed the issue of the definition and recognised that the definition does not in fact “include salt added during manufacture or processing”. It concluded that “in those circumstances it is only the salt added to purchased foods in cooking or eating which is relevant to satisfying factor 5(c) of the SoP”.
I agree with the submissions made for and on behalf of the Respondent and the reasoning of the Tribunal. In my view it is clear that the SoP in its definition seeks to distinguish between salt added when cooking or eating and does not wish to extend the definition to cover salt which may have been added during the processing or manufacture of products available for purchase. The meaning is quite clear and I accept that cooking may not necessarily mean cooking at home but rather the cooking or eating which may occur away from home.
It seems to me that it is also significant to note the term which is being defined. The term refers to salt supplement. The concept of supplement clearly means adding to the food that is available for cooking and eating during the time when the food is cooked or eaten. The definition refers to “when cooking or eating” and does not suggest salt being supplemented to the food prior to the purchase or during the course of manufacture or processing.
If the construction of the definition leads to an unfair conclusion then that is a matter which needs to be addressed by the Respondent upon review of the SoP and not in my view a matter which can be the subject of what might be described as a Court amendment. In any event one can imagine significant difficulties in assessing salt content of products in various forms of manufacture and distinguishing that salt content from salt which occurs naturally in foodstuffs. That would add further imprecision to what is already an imprecise process. It is not for the Court to be critical of the thresholds which may be set by the SoP and nor is there any scope to either change the criteria or interpret the words so as to provide an entirely different outcome.
In the circumstances I cannot find any error that has been made by the Tribunal in its construction of the term “salt supplement.”
No error of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 has been made by the Tribunal. Accordingly it is appropriate this application be dismissed.
It was agreed by Counsel that if the Tribunal’s interpretation of “salt supplement” was found to be correct then it would not be necessary for the Court to consider a further issue raised by Counsel as to whether it could properly be said that the Applicant’s salt intake was attributable to war service. Therefore I do not need to consider the further issues in ground (e) of the Notice of Appeal having regard to my finding that the Tribunal has correctly interpreted the relevant definition and has not in my view erred in law.
I propose making the following orders:-
(1)The Application is dismissed.
(2)The Applicant shall pay the Respondent’s costs to be taxed in default of agreement.
I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 29 June 2001
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