Jenkin and Repatriation Commission

[2004] AATA 198

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 198

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/123

VETERANS' APPEALS   DIVISION		)
Re		WILLIAM HERBERT JENKIN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date27 February 2004

PlaceHobart

Decision The Tribunal determines that it only has jurisdiction to review the applicant’s condition of malignant neoplasm of the bile duct and lacks authority to make any determination in relation to the applicant’s condition of cirrhosis of the liver. 

[Sgd A F Cunningham]

Part-Time Member

CATCHWORDS

Veterans’ Entitlements – malignant neoplasm of the bile duct – meaning of reviewable decision – no jurisdiction to determine whether cirrhosis of the liver war-caused.

Veterans’ Entitlements Act 1986 – ss174, 175, 275

REASONS FOR DECISION

27 February 2004 Ms A F Cunningham (Part-time Member)          

1.      The applicant has sought the review of a decision of the Veterans’ Review Board (VRB) dated 27 June 2003 affirming a decision of a delegate of the Repatriation Commission (“the Commission”) dated 5 December 2002, which refused to accept that malignant neoplasm of the bile duct was war-caused.

2.      The applicant was represented by Ms Olivia McTaggart and the respondent by Mr Michael Castle.

3.      At the commencement of the hearing, it was contended by Mr Castle that as there had been no earlier decision by the Repatriation Commission regarding the applicant’s claimed condition of cirrhosis of the liver, it was not open to this Tribunal to determine the appeal.   Mr Castle submitted that the basis of the applicant’s claim as decided by the Repatriation Commission and reviewed by the VRB related to the claimed condition of cancer of the bile duct/obstruction of the bile duct in the liver, later diagnosed as malignant neoplasm of the bile duct.    There is no reviewable decision, according to Mr Castle, concerning Mr Jenkin’s claimed condition of cirrhosis of the liver and its connection with his service.

4.      It was argued by Ms McTaggart that the applicant’s claimed condition of cirrhosis of the liver is merely a link in the chain in the determination as to whether his claimed condition of malignant neoplasm of the bile duct is war-caused. Ms McTaggart informed the Tribunal that the respondent had previously accepted that the applicant suffers from malignant neoplasm of the bile duct and cirrhosis of the liver.   The question for determination by the Tribunal, she submitted,  is whether he was suffering from cirrhosis of the liver before the clinical onset of the malignant neoplasm of the bile duct.

5.      It was Ms McTaggart’s contention that the Tribunal is being asked to review the Repatriation Commission’s decision as to whether Mr Jenkin’s condition of malignant neoplasm of the bile duct is due to service.   

6.      Ms McTaggart further contended that the Tribunal is not restricted to accepting ancillary  findings of fact made by the Commission or the VRB as the hearing before the Tribunal is a hearing de novo.    She pointed out that the applicant’s diagnosis of cirrhosis of the liver was made subsequent to hearings before the Commission and VRB and that the Tribunal in exercising its powers in conducting a hearing de novo is able to take account of new evidence that was not before the original decision-maker.   Ms McTaggart referred to the Tribunal’s decision in Re Staffieri and Commonwealth (1986) where it said:

“The question for the determination of the Tribunal is whether that decision [of the decision-maker] was the correct or preferable one on the material before the Tribunal.

We may not be able to reach the correct or preferable decision on the material before us if we are bound to accept the findings of fact made by the decision-maker.   We do not accept that the power of the Tribunal can be fettered so as to require it to consider only one aspect of the determination under review.”

7.      These statements are not consistent however with the accepted limitations on the Tribunal to only review matters that were referred to in the original claim for the application for review to the VRB.   As stated in the text, Veterans’ Entitlements Law by Robin Creyke and Peter Sutherland at page 476:

“However, de novo review does not mean that the Tribunal has a roving brief and can consider for the first time a claim for incapacity in respect of an injury or disease which has not previously been considered by the Commission or the Board.”

8.      The Tribunal’s jurisdiction is limited by the matters referred to in the original claim or the application for review to the Board or the Tribunal.

9.      The source of the Tribunal’s jurisdiction is found in s175 of the Act which states:

“Where a decision made by the Commission has been reviewed by the Board upon a request made under section 135 and affirmed, varied or set aside, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review:

(a)       of the decision of the Commission that was so affirmed;

(b)       of the decision of the Commission as so varied; or

(c)of the decision made by the Board in substitution for the decision so set aside;

as the case may be.”

10.     Pursuant to the provisions of s174 of the Act, the decision in respect of which the application is made constitutes a “reviewable decision”.

11.     A similar issue arose initially before the Tribunal and then on appeal to the Federal Court in the case Re Stafford and the Repatriation Commission 1993 (AAT Decision No. 9053) as to whether the Tribunal could review those determinations that had not been subject to review by the VRB.

12.     As the Tribunal commented in that decision, the Act provides:

“A comprehensive statutory framework for review of Commission decisions by the VRB, at first instance and, in turn, by the Tribunal. The consideration by the Tribunal of particular issues of entitlement expressly not before the VRB would have the effect of circumventing a chain in the review process. Such a development is clearly contrary to the purpose and intent of the legislation.”

13.     The Tribunal decision’s was upheld by the Full Federal Court on appeal, Repatriation Commission v Stafford (1995) 38 ALD 193.

14.     The power of the VRB to review decisions of the Commission is pursuant to s135 of the Act.   As to the meaning of the term “any decision of the Commission in respect of the claim or application”, the Full Court in re Stafford (supra) stated at page 197-198:

“The phrase “any decision of the Commission in respect of the claim or application” in s135(1) should in our opinion be construed as comprehending each determination as to whether a condition of entitlement stated in the Act has been satisfied, as well as the ultimate decision as to whether which was the subject of the claim or the application exists… .

And in the written application to the board for review one or more of the determinations of the Commission as to whether conditions of entitlement have been satisfied may be excepted from the decisions of which review is sought, leaving for review only the ultimate decision as to entitlement and the determinations not excepted.”

15.     In Stafford’s case, one of the issues was whether the veteran had ever sought to have the Commission’s decision in relation to two of his claimed disabilities reviewed by the VRB.    In the present case there is no dispute that the applicant had ever made a claim with respect to the condition of cirrhosis of the liver.   The applicant’s claim, which was the subject of review by the Repatriation Commission was that his condition of cancer of the bile duct/obstruction of the bile duct in the liver, subsequently accepted as malignant neoplasm of the bile duct, was related to his service.   

16.     On 5 December 2002, the Repatriation Commission in its decision, refused to accept that the applicant’s condition of neoplasm of the bile duct was war-caused and this was the decision reviewed by the VRB.   On 17 June 2003, the VRB affirmed the decision under review.

17.     There was evidence presented to the VRB from the applicant’s gastroenterologist, Dr M Kilburn, that in his opinion the applicant does have cirrhosis of the liver.  He commented that other contributing factors:

“Such as previous alcohol excess, or other toxic damage or past viral infection cannot be ruled out.”

There was however no consideration by the VRB as to whether this disease was related to the applicant’s period of service.

18.     Pursuant to the provisions of s175 of the Act where the VRB has affirmed a decision of the Commission, it is the decision of the Commission that is the subject of review.    It is clear from the Commission’s decision that it was not asked to consider whether the applicant’s condition of cirrhosis of the liver was war-caused.  In fact the Commission stated:

“Mr Jenkin provided an alcohol statement to support his alcohol contention, however, for alcohol consumption to be a causative factor in this type of cancer, this needs to have led to cirrhosis of the liver.   Mr Jenkin advised in a telephone conversation on 7 November 2002 that he does not have cirrhosis of the liver.   In his medical report dated 1 November 2002, Dr Kilburn, gastroenterologist, diagnosed cholangiocarcinoma (malignant neoplasm of the bile duct) and commented on liver function but did not indicate the presence of cirrhosis of the liver.”

19.     It was stated by the Full Federal Court at page 203 in Repatriation Commission and Stafford (supra):

“In Fitzmaurice and Repatriation Commission (supra) the members of the full court found little or no assistance in policy considerations, and little indication of legislative intention, in construing the word “decision” in what is now s175(1)(c). But in respect of the same word in s175(1)(a) there is in our opinion an evident policy consideration in favour of excluding from review by the tribunal decisions of the commission which a claimant or an applicant under s14 or s15 has deliberately withheld from review by the board. The legislature has been at pains to ordain an expeditious and comprehensive administrative review b y an independent, expert board of the decisions of the commission which determine entitlements under the Veterans’ Entitlements Act 1986, and to grant a right of further review only after the board’s review has been carried out. A construction of s175(1)(a) which would permit a claimant or an applicant to by-pass the board’s review would not be consonant with that legislative intention, in our opinion.”

20.     The Court also said at page 202:

“If the commission’s delegate’s decisions that Mr Stafford did not suffer either chronic obstructive airways disease or hypertension had not been the subject of the application for review by the board, or if those decisions had been withdrawn by Mr Stafford from the board’s review, then those decisions would not in our opinion have been susceptible of review by the tribunal…

The right conferred by s175(1) to apply to the tribunal for review arises only `where a decision made by the commission has been reviewed by the Board upon a request made under section 135 and affirmed’..  What is not requested under s135 is not reviewed by the board.   The `decision … that was so affirmed’ comprehends all the decisions of the commission which the board to review in order to reach its conclusion that the ultimate decision of the commission’s delegate – as to whether or not the claimant is entitled to be granted a pension – should be affirmed.”

21.     It is clear from this decision of the Full Court in its interpretation of the word “decision” appearing in s175, that it is not just the ultimate determination of the Commission as to whether or not the applicant’s claim is accepted or rejected but that the reviewable decision includes a determination as to whether a particular condition of entitlement is satisfied.   In other words whether each of the applicant’s claimed conditions are accepted or rejected as being war-caused.   

22.     This Tribunal has been requested to consider whether the applicant’s condition of malignant neoplasm of the bile duct is war-caused.    In support of the alleged causal connection, the Tribunal is referred to Statement of Principles Instrument No 17 of 2000.   The factor referred to in paragraph 5(g) in support of the hypothesis is that the applicant is suffering from cirrhosis of the liver.   In relation to the applicant’s condition of cirrhosis of the liver, the Tribunal is referred to Statement of Principles Instrument No 35 of 1998 and in particular factor 5(a) relating to alcohol consumption in support of the alleged causal connection between this condition and the applicant’s service.

23.     As it is accepted that the applicant’s condition of cirrhosis of the liver was not considered by the Repatriation Commission in accordance with the above authorities, the Tribunal determines that it only has jurisdiction to review the applicant’s condition of malignant neoplasm of the bile duct and lacks authority to make any determination in relation to the applicant’s condition of cirrhosis of the liver.

I certify that the 23 preceding paragraphs are a true copy of the reasons for decision herein of Ms A F Cunningham (Part-time Member).

Signed K L Miller (Administrative Assistant)

Date of Hearing:  29 January 2004
Counsel for the applicant:             Ms O McTaggart
Solicitor for the applicant:              Ogilvie Jennings
Counsel for the respondent          Mr M Castle
Solicitor for the respondent           Repatriation Commission