DEFENCE AND WAR – veterans’ entitlements – whether failure to remit proceedings notwithstanding errors of law by the Administrative Appeals Tribunal – whether primary judge justified in dismissing application – whether point not taken before the primary judge could be taken on appeal.
DEFENCE AND WAR – veterans’ entitlements – whether primary judge misconstrued definition of “trauma to the lumbar spine” in relevant Statement of Principles.
TERRENCE JOHN HARRIS v REPATRIATION COMMISSION V 538 of 2000
WHITLAM, SACKVILLE AND MANSFIELD JJ SYDNEY (Heard at Melbourne) 24 NOVEMBER 2000
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 538 OF 2000
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
TERRENCE JOHN HARRIS APPELLANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGES:
WHITLAM, SACKVILLE & MANSFIELD JJ
DATE OF ORDER:
24 NOVEMBER 2000
WHERE MADE:
SYDNEY (Heard at Melbourne)
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 538 OF 2000
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
TERRENCE JOHN HARRIS APPELLANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGES:
WHITLAM, SACKVILLE & MANSFIELD JJ
DATE:
24 NOVEMBER 2000
PLACE:
SYDNEY (Heard at Melbourne)
REASONS FOR JUDGMENT
THE COURT:
THE PROCEEDINGS
This is an appeal from a decision of a Judge of this Court: Harris v Repatriation Commission (2000) 31 AAR 270. The primary Judge dismissed a so-called “appeal” pursuant to s 44(1) of the Administrative Appeals Act 1975 (Cth) (“AAT Act”) on a question of law from a decision of the Veterans’ Appeal Division of the Administrative Appeals Tribunal (the “AAT”). The AAT had affirmed a decision by the Veterans’…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Harris v Repatriation Commission [2000] FCA 1687
Case
[2000] FCA 1687
Decision Date
CaseChat Overview and Summary
In the matter of Harris v Repatriation Commission, the primary dispute involves the appellant, who served in Vietnam during his military career, challenging the Repatriation Commission's decision to deny him an increased pension rate based on his claims of lumbar spondylosis and contact dermatitis. The appellant had previously been awarded a 60% pension rate due to conditions he claimed were war-caused. This case was heard in the Federal Court of Australia, which was required to review the decision of the Administrative Appeals Tribunal (AAT) that had dismissed the appellant's application for a higher pension rate. The legal issues at the heart of this case revolved around the interpretation and application of the four-stage approach laid down in Repatriation Commission v Deledio, specifically as it pertains to the assessment of war-caused injuries and the interpretation of the "Standards of Proof" (SoP) outlined in the relevant legislation.
The court was tasked with determining whether the AAT correctly applied the Deledio approach in its assessment of the appellant's lumbar spondylosis. The primary legal question was whether the AAT properly interpreted and applied SoP No 52 of 1998 when deciding that the appellant's lumbar spondylosis was not war-caused. The court examined whether the AAT correctly interpreted the requirement for "acute symptoms and signs of altered mobility or range of movement" in the context of the appellant's injury and whether this interpretation aligned with the legal framework established by the Deledio case. The Federal Court concluded that the AAT had correctly applied the Deledio approach and found that the appellant's claim did not satisfy the third stage of the framework. The court held that the AAT was correct in finding that there was insufficient evidence to support a hypothesis that the appellant's lumbar spondylosis was war-caused, given the lack of evidence of altered mobility or range of movement.
The Federal Court's reasoning focused on the AAT's application of SoP No 52 of 1998 and whether this was consistent with the Deledio approach. The court upheld the AAT's decision, affirming that there was no basis to conclude that the appellant's lumbar spondylosis was war-caused. The court found no error in the AAT's interpretation that the appellant's injury did not fit the "template" established by SoP No 52 of 1998. Consequently, the appellant's appeal was dismissed, and the Federal Court ordered that the appellant pay the respondent's costs. This outcome reinforces the importance of strict adherence to the legislative framework and the standards of proof when assessing claims for war-caused injuries.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs.
Background
Background to the litigation
It was common ground that the AAT, in applying s 120(1) and s 120(3) of the AAT Act, was obliged to apply the four stage approach laid down in Repatriation Commission v Deledio. That approach involves the following steps (at 97-98):“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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.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.”BACKGROUND The appellant was born on 25 November 1946. He enlisted in the Australian Army on 10 February 1964 and was discharged on 19 August 1971. He re-enlisted on 20 August 1971 and was again discharged on 21 May 1973. Between 22 April 1966 and 12 May 1967, the appellant rendered “operational service”, as defined in s 6 of the VE Act, in Vietnam. He did so as a member of the 5th Battalion Royal Australian Regiment which was principally engaged in patrols around Nui Dat. From 1992 onwards, the appellant made a series of claims relating to conditions said to be war-caused injuries or diseases. The consequence was that he was ultimately awarded a pension at the rate of 60 per cent with effect from 18 March 1992. On 11 July 1996, the appellant lodged an application for an increase in the rate of pension from 60 per cent. He also made claims in respect of hearing loss, tinnitus and “back problems”.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
WHITLAM, SACKVILLE AND MANSFIELD JJ
The appellant then sought review by the AAT of the Board’s decision. He pursued only claims based on his conditions of contact dermatitis and lumbar spondylosis. At the hearing, the Commission conceded that the condition of contact dermatitis should be assessed at 90 per cent of the general rate. In its decision of 5 March 1999, the AAT determined that the appellant’s lumbar spondylosis was not war-caused. In reaching this conclusion the AAT applied SoP No 52 of 1998.THE AAT’S DECISION As we have noted, the AAT took the view that SoP No 52 of 1998 applied to the appellant’s claim. The AAT also took the view that the expression “acute symptoms and signs of” qualified the words “altered mobility or range of movement of that part of the spine”. Accordingly, it considered that the definition of “trauma to the lumbar spine” in SoP No 52 of 1998 could not be satisfied unless the appellant had “acute symptoms and signs of altered mobility or range of movement resulting from the relevant injury”. The AAT recorded the appellant’s claim that he had suffered a back injury while on patrol through “rubbishy scrub”. At the time he was carrying a back pack weighing approximately 100 pounds. According to the appellant he had been propelled forward by his section commander. His back pack shifted and he fell on his back. The appellant said that his back had been sore after the incident, but he had not received medical attention, other than taking aspirin. He could not recall whether he had suffered any limitation of movement in consequence of the injury. The AAT referred to the evidence of a rehabilitation physician, Dr Stone, which suggested that a person could suffer a limitation of movement without being consciously aware of it. Dr Stone had expressed the view that the appellant might not have recalled any limitation of movement because the injury would not have been “overt”. The AAT acknowledged that Repatriation Commission v Deledio had laid down a four stage procedure which the AAT was obliged to follow. The AAT found that the appellant had satisfied the first stage, because a hypothesis existed connecting the appellant’s admitted lumbar spondylosis with his service (although the AAT did not identify precisely what the hypothesis was). The appellant had also satisfied the second stage as there was “obviously” an SoP in force, namely SoP No 52 of 1998. The AAT found, however, that the appellant had not satisfied the third stage, which required consideration of whether the hypothesis was reasonable and, in particular, whether it was consistent with the factors specified in SoP No 52 of 1998. The AAT considered that there was no evidence of altered mobility or range of movement. In these circumstances it was not open to it to find that there was an available hypothesis which included the appellant suffering altered mobility or range of movement. To do so would be to make an assumption “arising in the abstract”: cf Repatriation Commission v Stares (1996) 66 FCR 594, at 601, per curiam. The AAT concluded that no available hypothesis fitted the “template” established by SoP No 52 of 1998 and therefore the hypothesis was not reasonable.
Ratio Decidendi
Legal Principle Established
Established by:
WHITLAM, SACKVILLE AND MANSFIELD JJ