Husband v Repatriation Commission

Case [2000] FCA 356

FEDERAL COURT OF AUSTRALIA

Husband v Repatriation Commission [2000] FCA 356

VETERANS AFFAIRS – disability pension assessment – impairment assessment – Guide to Assessment of Rates of Veterans Pensions – application of tables in assessing impairment – use of averaging over periods in which severity of conditions fluctuate – whether intermittent conditions attracting different basis for assessment of impairment – underlying findings of fact – reduces to questions of fact – not reviewable – special rate – findings of fact attacked – chronic fatigue syndrome – not claimed as caused by defence service – not able to be applied by Tribunal to assessment of special rate – appeal essentially merits review – appeal dismissed.

Veterans’ Entitlements Act 1986 s70, s 21A, s 22, s 23, s 24, s 5Q, s 29 s 196B(3), s 5AB, s 196B(4), s 120, s 5D

Brown v Repatriation Commission (1985) 60 ALR 289 cited
Waterford v The Commonwealth (1987) 71 ALR 673 cited
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 cited
Federal Commissioner of Taxation v Swift (1989) 18 ALD 679 cited
Owen v Repatriation Commission (1995) 59 FCR 93 applied
Banovich v Repatriation Commission (1986) 69 ALR 395 cited

NEIL FRANCIS HUSBAND v REPATRIATION COMMISSION
W 33 OF 1999

FRENCH J
24 MARCH 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W 33 OF 1999

ON APPEAL from the Veterans’ Appeal Division of the Administrative
Appeals Tribunal constituted by T E Barnett, Deputy President, Brigadier R D F Lloyd, Member, and Dr D Weerasooriya, Member.

BETWEEN:

NEIL FRANCIS HUSBAND
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

FRENCH J

DATE OF ORDER:

24 MARCH 2000

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The Applicant is to pay the Respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W 33 OF 1999

ON APPEAL from the Veterans’ Appeal Division of the Administrative
Appeals Tribunal constituted by T E Barnett, Deputy President, Brigadier R D F Lloyd, Member, and Dr D Weerasooriya, Member.

BETWEEN:

NEIL FRANCIS HUSBAND
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

FRENCH J

DATE:

24 MARCH 2000

PLACE:

PERTH

REASONS FOR JUDGMENT

Introduction

  1. Neil Francis Husband, a former member of the Special Air Services Regiment, who left the Army in 1995, suffers from a variety of conditions accepted, for the purposes of the Veterans’ Entitlements Act 1986, as having been caused by his military service.  He has been allowed a pension under the Act and has, using the processes of the Act, challenged the level of his impairment assessed by the Repatriation Commission and the Veterans Review Board and the rate of pension to which he is entitled.  His appeal to this Court is against the decision of the Administrative Appeals Tribunal which had increased his impairment assessment over that previously assessed by the Veterans Review…

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AGLC
Husband v Repatriation Commission [2000] FCA 356
Case
[2000] FCA 356
Decision Date

CaseChat Overview and Summary

The case of Husband v Repatriation Commission involves Neil Francis Husband, a former member of the Australian Special Air Services Regiment, who has been granted a pension under the Veterans’ Entitlements Act 1986 due to various conditions accepted as caused by his military service. Husband has contested the level of impairment assessed by the Repatriation Commission and the Veterans Review Board, as well as the rate of pension he is entitled to. His appeal to the Federal Court is against the decision of the Administrative Appeals Tribunal, which increased his impairment assessment over the Veterans Review Board’s previous assessment. The key legal issues before the court were whether the Administrative Appeals Tribunal correctly exercised its discretion in reviewing the Repatriation Commission's decision and whether it erred in its factual findings or applied an incorrect legal standard.

The court found that the Administrative Appeals Tribunal, in reviewing the Repatriation Commission's decision, was authorised to exercise all the powers and discretions conferred by the relevant enactments on the original decision-maker. The Tribunal was not required to consider the assessments made by the Repatriation Commission or the Veterans Review Board but could make its own decision afresh. The court noted that the Tribunal's factual findings, such as evaluations of Husband's conditions and the weight given to particular evidence, were not subject to review unless they were vitiated by an error of law. The court concluded that Husband's criticisms of the Tribunal's factual findings and numerical assessments were not appropriate for this appeal as they involved factual judgments rather than legal errors.

The court dismissed Husband's appeal, finding that the Administrative Appeals Tribunal had correctly exercised its discretion and did not err in its factual findings or the application of the law. Consequently, the court ordered that Husband's application be dismissed and that he pay the Repatriation Commission's costs of the application.

Orders

Orders of the court

1. The application is dismissed.

2. The Applicant is to pay the Respondent’s costs of the application.

Background

Background to the litigation

Neil Francis Husband, a former member of the Special Air Services Regiment, who left the Army in 1995, suffers from a variety of conditions accepted, for the purposes of the Veterans’ Entitlements Act 1986, as having been caused by his military service. He has been allowed a pension under the Act and has, using the processes of the Act, challenged the level of his impairment assessed by the Repatriation Commission and the Veterans Review Board and the rate of pension to which he is entitled. His appeal to this Court is against the decision of the Administrative Appeals Tribunal which had increased his impairment assessment over that previously assessed by the Veterans Review Board. He challenges the Tribunal’s decision on numerous grounds which are set out in the reasons that follow.Factual Background Neil Francis Husband was born on 24 May 1954. In November 1978 he enlisted in the Australian Army. He spent nine months on initial training at Singleton and was then posted to a training establishment at Canundra. He spent twelve months at that training establishment and was then posted to the Special Air Services Regiment in Perth in 1980 where he served for eleven years. He left that Regiment in May or June 1991. He was posted to Cairns for about eighteen months and then for almost a further three years was posted to Brisbane up to his discharge on 27 December 1995. On 27 August 1992, Mr Husband lodged a claim for pension in respect of a number of conditions being: lower back, upper back and neck injury, malaria, hiatus hernia, ear infection, right knee and right shoulder injury, viral and parasitic infection, colds and flu. A medical officer of the Department of Veterans’ Affairs diagnosed the following conditions: 1. Thoraco-lumbar spondylosis2. Cervical Spondylosis 3. Rotator Cuff Lesion Right Shoulder4. Recurrent Otitis Externa5. Bilateral Sensori-Neural hearing loss6. Medial ligament injury right knee7. Malaria8. Hiatus herniaOn 2 July 1993, a delegate of the Repatriation Commission determined these conditions, save for the hernia, to be defence-caused diseases within the meaning of s 70 of the Veterans’ Entitlements Act. The claim for pension was granted and pension was assessed at forty per cent of the General Rate with effect from 28 May 1992. The claims in respect of the other conditions were refused. Using the points-based Guide to the Assessment of Rates of Veterans’ Pensions (GARP), the delegate assessed fifteen points impairment for the thoraco-lumbar spondylosis and five points impairment for the medial ligament injury to the right knee. The other conditions were assessed as nil impairment. The overall impairment rating was therefore twenty points. Another two points was added for lifestyle rating and, on the basis of these assessments, the appropriate pension was forty per cent of the General Rate provided for under s 22 of the Veterans’ Entitlements Act. On 26 November 1993, Mr Husband lodged a further claim for disability pension and medical treatment. The claimed disability was leptospirosis contracted while on military service in North Queensland. By a decision, published on 29 July 1994, the Repatriation Commission accepted the claim with effect from 17 December 1993, on the basis that the disease was defence-caused. However, the rate of payment of the pension did not change. It remained at forty per cent of the General Rate. In its assessment of the impairment caused by the leptospirosis, the Repatriation Commission found that that there were no current symptoms attributable to the leptospirosis as the disease had resolved in 1993. There was therefore a nil point assessment under the GARP. However, there was a reassessment of the impairment of the thoraco-lumbar spondylosis down to ten points. This reassessment applied criteria set out in a Fourth Edition of the GARP which had been produced since the initial assessment. The medial ligament injury of the right knee remained at five points. The total impairment rating of fifteen points, combined with the average lifestyle rating of two points meant, under a conversion table in GARP, that Mr Husband’s assessed pension entitlement was thirty per cent of the General Rate. However, provisions of the Act protecting pensions currently in payment from reduction where they were not granted as the result of a false statement or misrepresentation of incapacity required his rate of pension to be maintained at forty per cent.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH J
From April 1996 onwards the Tribunal found that Mr Husband’s inability to work or to seek work was not the result of his accepted disabilities alone. It was his non-accepted disability diagnosed as chronic fatigue syndrome which was the main factor in this regard. The Tribunal therefore found that he was not eligible for either the Intermediate or Special Rates of pension during the Third Review Period. The Tribunal was thus “reasonably satisfied” that Mr Husband’s disability pension should be at eighty per cent of the General Rate for the full three periods reviewed commencing from 17 September 1993. On that basis it set aside the decision of the Veterans’ Review Board under review and in lieu thereof decided that Mr Husband was entitled to payment of Disability Pension at eighty per cent of the General Rate with effect from 17 September 1993.Review of Decisions of Administrative Appeals Tribunal – General Principles There are certain general considerations affecting the decision-making powers of the Administrative Appeals Tribunal and review of its decisions which need to be restated as much of Mr Husband’s argument seems to have been based upon some misconceptions about those things. The first consideration is that the Tribunal, in reviewing an administrative decision, is authorised by s 43 of the Act to “…exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision”. In making its own decision the Tribunal can affirm the decision under review, vary it or set it aside and make its own decision in substitution for the decision so set aside. In carrying out its decision-making function the Tribunal stands in the shoes of the decision-maker whose decision is under review. It undertakes the exercise of decision-making afresh. It is therefore not required to have regard to the assessments made by the decision-maker whose decision is under challenge. In his submissions, Mr Husband referred to assessments made by the Department and the Veterans’ Review Board. More importantly, s 44 of the Act limits the rights of appeal to the Federal Court against decisions of the Tribunal to questions of law. The questions of law alone are the subject matter of the appeal and the ambit of the appeal is confined to them – Brown v Repatriation Commission (1985) 60 ALR 289 at 291. It is a corollary of that limitation that a finding by the Tribunal on a matter of fact cannot be reviewed on appeal unless vitiated by an error of law – Waterford v The Commonwealth (1987) 71 ALR 673 at 689 (Brennan J). There is much in Mr Husband’s submissions by way of challenge to the Tribunal’s findings of fact. Criticisms of the Tribunal’s decision based upon the particular numerical assessments that it made are criticisms of the Tribunal’s evaluations of his various conditions. Those evaluations are judgments of fact and are not able to be challenged in this Court. Contentions that a higher rating should have been applied or that the Tribunal should not have relied on the evidence of any particular witness or that the evidence of a witness relied upon was “insubstantial” are not able to be entertained in these proceedings. Nor can criticism that the Tribunal should have given more weight to the evidence of another witness be entertained. The weight which the Tribunal gives to the evidence of witnesses before it is a matter of fact for it.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

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