Harris v Repatriation Commission M144/2001

[2001] HCATrans 655

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M144 of 2000

B e t w e e n -

TERRENCE JOHN HARRIS

Applicant

and

REPATRIATION COMMISSION

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2001, AT 1.22 PM

Copyright in the High Court of Australia

MR D. DE MARCHI:   If the Court pleases, I appear for the applicant.  (of De Marchi & Associates)

MS E. FORD:   I appear for the respondent with my learned friend, MS A.B. McMAHON.  (instructed by Australian Government Solicitor)

McHUGH J:   Yes, Mr De Marchi.

MR DE MARCHI:   Your Honour, His Excellency the Reverend Dr Peter Hollingsworth Governor‑General of the Commonwealth of Australia in opening the Returned and Services League of Australia’s 86th National Conference on 5 September of this year said:

There can be no question that it is right and proper that those who have served in the Armed Forces of our country are treated thereafter with dignity and generosity –

Now the Prime Minister, at the same Conference, your Honour, said that it was an occasion for him:

to reaffirm the continued commitment of the government to the provision of generous benefits to Veterans of all conflicts in which Australia has been involved.

The Prime Minister further said:

our commitment to the maintenance of those benefits and the expansion and the improvement of those benefits remains firm and unswerving.

Your Honour, the Minister for Veterans Affairs, when he introduced the Budget Amendment Bill in 1984, said that the Bill defined:

by reference to such Statements of Principles, the concept of a “reasonable hypothesis”, as it appears in subsection 120(3) of the Veterans’ Entitlements Act. 

He said that the facts of the case will not be a matter for the medical authorities, but will remain with the Commission and will continue to be subject to review and he said that:

There has not been a return to a civil standard of proof, as recommended by the Baume Committee, which would have had the potential to reduce the success rate claims –

In fact, your Honour, what is occurring over the decision of the Full Court on Harris and other decisions is that claims are defeated on the balance of probability because it does not appear to meet the exact wording required by the definitions in the Statements of Principles.  What has happened is that the Statements of Principles have become the cart that drives the horse.

KIRBY J:   This is a very long saga and your client has brought numerous applications, as is his right, at different stages of the appeal process, but is it correct, as said at 103, that it is open to your client to make a fresh application now and pursue the matter by way of fresh application in respect of any change that ‑ ‑ ‑

MR DE MARCHI:   Yes, it is, your Honour.

KIRBY J:   Well, why is that not the way in which the matter should be dealt with?  Why would this Court become involved?

MR DE MARCHI:   There are repercussions in making a fresh application, your Honour.  The first one is that time cannot commence running until you lodge your application and, of course, there are flow-on procedures that occur with the granting of a pension.

KIRBY J:   Yes, but he started off and he got 60 per cent and then in 1997 he got 70 per cent and then in 1999 he got 90 per cent, so he is not far behind the eight ball and he could make a fresh application and he might get up to 100 per cent.

MR DE MARCHI:   Well, 100 per cent is not the objective that the applicant was aiming for, your Honour.  He was aiming for special rate, which is an earning-related pension and he could not get that unless the disability of lumbar spondylosis was an accepted disability, because section 24 has some fairly onerous requirements.  It requires that accepted disabilities alone prevent the veteran from being employed.  So if there is one condition that is not accepted, then you cannot claim that particular pension and you are restricted – and, indeed, what Mr Harris is doing is appealing to this Court for his own case, but for many of his colleagues who will find themselves in exactly the same position, if lumbar spondylosis, or back strain, are treated in this manner by the Repatriation Commission.

It does not alter, your Honour, the fact that it is a treatment of the subordinate legislation, the Statements of Principle, by the courts that we complain of in that it has reversed the very generous principle that certainly the government and the Minister in his second reading speech in 1984 did not envisage would take away this concept of a reasonable hypothesis.  Can I take the Court to page 5 of the application book where in paragraph 6 the Court will see how the Administrative Appeals Tribunal read the definition of “trauma to the lumbar spine” to include:

acute symptoms and signs constituting altered mobility or range of movement for at least 7 days immediately after the injury occurs.

We say that what the Tribunal did was, in fact, increase the requirement of the Statement of Principle, that the proper reading of that particular clause, that definition, was that you had to have:

acute symptoms and signs of pain, tenderness and altered mobility or range of movement of that part of the spine.

But they were two separate requirements.

McHUGH J:   Yes, but at best in your favour is that the Tribunal has wrongly construed a Statement of Principle, which was No 52 – and I assume it gets changed fairly regularly.  There is nothing special about that.  We would not grant special leave to construe a contract or, for that matter, in many cases of statutes.

MR DE MARCHI:   Your Honour, the special point is contained on page 87 of the application book, if I could take your Honour to it, and it is:

What is the appropriate approach to be taken by the courts in the interpretation of Statements of Principles –

Your Honour must ‑ ‑ ‑

McHUGH J:   But that is not a special leave question and we see questions stated in that form again and again.  They ask us to give, in effect, an advisory opinion.  If people want special leave, they have to formulate with some precision what is the approach that should be given.  You ask us, “What is the appropriate approach?”.  Well, what does that mean?

MR DE MARCHI:   No, your Honour.  What we are saying is that the courts have adopted a misreading or a reading down of section 119 and section 120 of the Act in their interpretation of the Statements of Principle.  What we are saying is that those two sections are primary in consideration when you are dealing with Veterans’ Entitlements legislation, and then, when you attempt to discern the meaning of a definition in the Statements of Principle, you must have in mind those two sections, you must apply those two sections, and you must also take into account that if there are doubts about the applicability of that particular section, that then you must dispel, according to the legislation, that doubt by way of “beyond reasonable doubt”, the reverse onus of proof that is still contained in section 120, your Honour. 

It becomes a special leave question when, despite this intent, despite the structure that was framed over many years, and the Parliament continues to support, the courts are avoiding that particular interpretation by simply looking at the Statement of Principle, as they did in Harris, reading down the definition of “trauma to the spine”, without taking into account how the decisions of the Federal Court have designed the operation of that particular interpretation of the Statements of Principle.

Your Honour, that decision is the decision of Deledio 83 FCR and if I could take you to Deledio at tab 7 of the documents and, in particular, to page 96.  The Full Court there examined the assessment that Justice Heerey made and said:

Heerey J further explained the relationship between ss 120(1) and (3) and 196B(2) in a passage with which we concur as follows:
“Therefore when s 196B(2) –

this is a section that introduces, your Honour, the Statements of Principle –

says a factor ‘must . . . exist’ and ‘must be related to service’, it is not interfering with the functions of ss 120(1) and 120(3).”

Now, those are the sections, your Honours, that deal with the “reasonable hypothesis”.  Those are sections that deal with the reverse onus of proof.  Those are the sections that have enshrined in Veterans’ legislation the concept that it is better that some veterans who are worthy, or some veterans who might not be so worthy, should get their pension rather than a worthy veteran should be denied.  It is the reverse onus of proof.                     Those two sections, says Mr Justice Heerey, do not interfere with the introduction of the Statements of Principle.  Further down the page at paragraph E the Full Court said:

At no stage is there an onus of proof on the claimant.  If one of the disputed fact 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.

In our view, therefore, the learned primary judger correctly stated the questions of law to be addressed by the decision-maker in a case such as the present where the provisions of s 120(1) and (3) are to be applied in the light of the 1994 Amendments.

Your Honours, what is happening in Harris is that that procedure that had been laid down by the Full Court is not applied by the Administrative Appeals Tribunal.

McHUGH J:   Well, that is not a special leave point.

MR DE MARCHI:   Well, your Honour, that in itself is not a special leave point, but when that error is repeated, we say, by the judge in the first instance, Mr Justice Finn, by also accepting that there was an error by the Tribunal in not making the connection, but then refusing to refer the matter back on a reason of utility because of his interpretation of the definition of “trauma”, which is repeating exactly the same problem, of course, that the Tribunal engaged in, it was not a question of simply reading the definition of “trauma” in the Statement of Principle.  It was a question of reading it with carefully in mind the requirement of section 120(1) and (3) and section 119 of the Veterans’ Entitlements Act.  Unfortunately, your Honours, what is occurring is that section 119 is given no meaning at all by any of the Tribunals, any of the courts, and could I take the Court to the wording of that particular section.

KIRBY J:   Where do we find that?

MR DE MARCHI:   That is at tab 2, your Honour:

Commission not bound by technicalities

(1)  In considering, hearing or determining, and in making a decision in relation to:

(a)  a claim or application ‑ ‑ ‑

KIRBY J:   This is a very common provision, but it does not mean the Tribunals or judges who have the benefit of that provision are sitting under a palm tree and can do anything they like.

MR DE MARCHI:   That is so, your Honour, but it goes on.  It says that:

the Commission:

(f)  is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;

(g)  shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and

(h)  without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:

(i)  the effects of the passage of time . . . and

(ii)  the absence of, or a deficiency in relevant official records –

Now, as your Honour correctly points out, it is a fairly standard sort of section in certain spots, but it does have a meaning that does require to be given an interpretation.  It is the failure to examine that section at all by the Tribunal, the failure to give that section its operation pursuant to the interpretation of the Statements of Principle that we complain about because certainly it does ‑ ‑ ‑

KIRBY J:   Justice Finn said that even if the correct Statement of Principle had been applied, it would not have made any difference in your case.

MR DE MARCHI:   No, but he has also made an error, your Honour, with respect, because what happened in this case was that the Tribunal made its decision on 5 March.  On 3 March there was a new Statement of Principle ‑ ‑ ‑

KIRBY J:  That is right.

McHUGH J:   Yes, they applied the incorrect Statement of Principle.

MR DE MARCHI:   No, no, no.  The one that his Honour identified as being the wrong one was the earlier one that should have been looked at because of the decision of Keeley, but what had happened was that there was a further Statement of Principle ‑ ‑ ‑

KIRBY J:   That is right, but it still left correct what his Honour said, they had applied the wrong Statement of Principle, but his Honour said it did not matter because they would have had no material consequence in your client’s case.

MR DE MARCHI:   Well, he said that, your Honour, but we say that he wrongly said that when you examine the definition of “trauma”, because we say that his Honour is clearly wrong in that interpretation.  The Tribunal and the court argued that “altered mobility or range of movement” and “acute symptoms and signs” must last for a period of at least seven days save for when immobilisation of the spine has occurred.  Now, your Honour, if the spine is immobilised, the mobility and range of movement of the spine will be limited, so the intervention is inappropriate as a measure of consideration for accepting “altered mobility or range of movement” as not being required to be present for seven days.

What we are submitting, your Honour, is that there is an error in the interpretation of that particular trauma statement, but more fundamental, there is a failure to apply section 120(1), which is the primary section, as the court found in Bushell, to the reading of the Statements of Principle, and that failure then brings about the courts and the tribunals simply looking at the facts that are required in the Statement of Principle and unless the veteran recites the exact facts required, on the balance of probability that case is rejected, and that, your Honour, is not what is intended by the legislation.

Your Honour will note that there was a change in the definition of “trauma” in instrument 27 of 1999, which was the instrument that should have been applied by the Tribunal, but nobody was alerted to the fact that the Repatriation Medical Authority had, in fact, promulgated that particular Statement of Principle.

KIRBY J:   Well, it did not impress Justice Finn, the difference.

MR DE MARCHI:   Justice Finn was not aware of that, your Honour; was not aware of that particular point.  That was not argued before him, your Honour.  The fact of the matter is this, that this case, like many other cases, you have the Tribunal refusing to look at the correct Statement of Principle.

KIRBY J:   But if they are being changed all the time, it would be very easy to make a slip.

MR DE MARCHI:   It is easy to make a slip, your Honour ‑ ‑ ‑

KIRBY J:   Then the question is:  is it a material change?  Does it really make any difference in the particular facts?

MR DE MARCHI:   Exactly, your Honour.

KIRBY J:   That does not seem like the sort of case that attracts the attention of this Court.

MR DE MARCHI:   It does not, your Honour, if you are limited to that, but it does when you combine it with the other point that I have outlined to your Honour.  Your Honour, I can only reiterate the grounds that were put into the outline of submission and, in particular, the error of the Full Court in examining that definition of “trauma”, your Honour.  We submit that

there appears to be an…..If we take the judgment of Justice Finn, he had to include three prepositions in order to arrive to the conclusion that he said should be given to the clear reading of that definition.  There was doubt in how the definition should have applied:  did it include limitation of a range of movements for seven days or did it simply mean “acute symptoms and signs of pain, tenderness” for seven days and then, also, alteration of movement or limitation of movement as an additional factor, but not necessarily required for the full seven days?  This man was in Vietnam on operational service.

McHUGH J:   Well, Mr De Marchi, your time has been up for some time.  I am afraid you have had your 20 minutes.

MR DE MARCHI:   Yes, your Honour.  I cannot ask for an extension of time, your Honour?

McHUGH J:   No, Mr De Marchi.  Yes, Ms Ford.

KIRBY J:   Ms Ford, the matter that I would like your assistance on is, given that it appears the wrong Statement of Principle was applied, it is said that there was even a further Statement of Principle that was not correctly applied, has the relevance of that been considered by the Federal Court, or did Justice Finn and the Full Court, in saying that it was not material, address themselves in turn to the correct Statement of Principle, which is what I understood the applicant to be saying?

MS FORD:   Yes, there were three Statements of Principles, your Honour.

KIRBY J:   That is what I gather, yes.

MS FORD:   The Administrative Appeals Tribunal applied the Statement of Principles of 1998.  Justice Finn found that they should have applied the Statement of Principles of 1995 and there was consensus at the Bar table that that was the applicable one.  Since the judgment of Justice Finn, a Statement of Principles of 1999 was promulgated.  But it is our submission that special leave should not be granted because the Statement of Principles that my friend would like to rely upon, No 27  of 1999, was not in force at the time of the Administrative Appeals Tribunal hearing, so he should not get on appeal something that he could not have got before the Tribunal and it is not a special leave question, really, because the Statements of Principles that were being construed by Justice Finn and the Administrative Appeals Tribunal have now been revoked and the one of 1999 is just completely different.

McHUGH J:   We need not hear you further, Ms Ford.

MS FORD:   Thank you.

McHUGH J:   Yes, have you anything to say in reply to what was just said, Mr De Marchi?

MR DE MARCHI:   Your Honour, yes.  I would like to draw the Court’s attention to the Full Court case of Gorton ‑ ‑ ‑

McHUGH J:   No, you are strictly limited to replying to what Ms Ford has said.

MR DE MARCHI:   Yes, I understand, your Honour.  My friend said that the Statement of Principle of 1999 was not applicable.  I am pointing out the Full Court decision of Gorton, which sets out how and which Statements of Principle are to be applied, your Honour, and in the case of Mr Harris, the Statement of Principle that had to be applied first, according to the Full Court in Gorton, was, in fact, the third Statement of Principle, your Honour, the 1999 Statement of Principle.

If I could take you to tab 9 of the decisions, your Honour, page 12 of that Internet decision, if I could take you to the bottom of the page where the heading says:

Consistently with Keeley can a later SoP nevertheless apply?

His Honour says in the second line after that heading:

the system operates in the following way.  Assume an 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.

KIRBY J:   That is the important point that Ms Ford emphasised, “at the time of the AAT decision”.

MR DE MARCHI:   Yes.  The AAT decision, your Honour, was on 5 March.  The SoP ‑ ‑ ‑

KIRBY J:   That was before the third SoP.

MR DE MARCHI:   No, it was after.  3 March was the gazettal point.  We find that, your Honour, from the decision of the court.  The Full Court said that the proposition that I was putting to the court that might have convinced the court in relation to the definition of that injury was contained in that SoP, and that SoP was, according to the court, your Honour, gazetted on 3 March 1999.  The hearing was in January, but the Act provides that the assessment period continues until the AAT makes its decision, and the

Administrative Appeals Tribunal, of course, is made cognisant of changes in the SoPs.  Therefore it would have had that SoP to them, but as a matter of law, your Honour, what the Full Court in Gorton is saying, you look at, first of all, the existent SoP before you make your decision and if that does not advance the hypothesis, then it is appropriate to consider the earlier SoP, the inherent right that was there prior to the amendment.

Your Honour, the SoP that we are referring to, 27 of 1999, is at tab 18 of the material.  You will see that it was actually passed by the Repatriation Medical Authority on 25 February 1999, but did not receive gazettal until the third of 1999.  In essence, your Honour, that was the SoP, although not argued before the AAT, because it was promulgated after it reserved its decision, but certainly available to the AAT in its deliberations prior to the final delivery of its decision on 5 March.

McHUGH J:   Thank you, Mr De Marchi.

MR DE MARCHI:   Thank you, your Honour.

McHUGH J:   This case concerns the construction of a Statement of Principle promulgated under the Veterans’ Entitlement Act 1996 (Cth) applied by the Federal Court.  There is also dispute among the parties as to which of three Statements of Principles applied to the case.  That dispute or that question of construction do not raise any question which would require the grant of special leave to appeal.  Nor is there any other point raised by Mr De Marchi on behalf of the applicant which would attract the grant of special leave to appeal.

We note that, in any event, it is common ground that the applicant is free to raise a fresh claim in respect to his lumbar spondylosis based on the applicable statement of principle.  No order for costs is sought?

MS FORD:   Yes, we did seek an order for costs, your Honour.

KIRBY J:   I thought I read that you were not seeking an order for costs.  Maybe it is just that the applicant said that he would suffer hardship if ‑ ‑ ‑

McHUGH J:   Yes, you do seek one.  Yes, it is at page 108.

KIRBY J:   There is no provision in the Veterans’ legislation that forbids or limits the grant of costs orders in these cases, is there?

MS FORD:   No, not that I am aware of, your Honour.

McHUGH J:   I am afraid, Mr De Marchi, the usual order must be made.  The application must be dismissed with costs.  We have read what you say in your application, but they are not sufficient reasons for not making the usual order.  The application is dismissed with costs.

MR DE MARCHI:   Thank you, your Honour.  If the Court pleases.

McHUGH J:   The Court will now adjourn until 2.15 pm.

AT 1.53 PM THE MATTER WAS CONCLUDED