Knight v Repatriation Commission

Case [2010] FCA 1134

FEDERAL COURT OF AUSTRALIA

Knight v Repatriation Commission [2010] FCA 1134

Citation: Knight v Repatriation Commission [2010] FCA 1134
Appeal from: Re Jacqueline Knight and Repatriation Commission [2009] AATA 929
Parties: JACQUELINE KNIGHT v REPATRIATION COMMISSION
File number: NSD 1490 of 2009
Judge: KATZMANN J
Date of judgment: 22 October 2010
Catchwords: DEFENCE AND WAR – veteran’s entitlement – pension claim by veteran’s widow – Statement of Principles concerning ischaemic heart disease – veteran exposed to an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 1000 hours – whether clinical onset of veteran’s ischaemic heart disease must occur within five years of the end of service
Legislation: Statement of Principles concerning Ischaemic Heart Disease, Instrument No. 89 of 2007
Veterans’ Entitlements Act 1986 (Cth), ss 120, 120A, 120B, 196B, 196D
Cases cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 applied
Bull v Repatriation Commission [2001] FCA 1832, 188 ALR 756
Bushell v Repatriation Commission (1992) 175 CLR 408 applied
Byrnes v Repatriation Commission (1993) 177 CLR 564 applied
Collector of Customs v Pozzolanic (1993) 43 FCR 280 applied
Comcare v Canute [2005] FCAFC 262, 148 FCR 232 distinguished
Esber v Commonwealth (1992) 174 CLR 430 cited
East v Repatriation Commission (1987) 16 FCR 517 applied

Kattenberg v Repatriation Commission [2002] FCA 412, 34 AAR 562 followed
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied
Repatriation Commission v Deledio (1998) 83 FCR 82 applied
Repatriation Commission v Gorton [2001] FCA 1194, 110 FCR 321 cited
Repatriation Commission v Newson [2008] FCA 401 distinguished
Roncevich v Repatriation Commission [2005] HCA 40, 222 CLR 115 applied
Woodward v Repatriation Commission [2003] FCAFC 160, 131 FCR 473 cited
Date of hearing: 8 June 2010
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 100
Counsel for the Applicant: Mr M Vincent
Solicitor for the Applicant: Kemp & Co
Counsel for the Respondent: Ms R Henderson
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1490 of 2009
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

JACQUELINE KNIGHT
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

KATZMANN J

DATE OF ORDER:

22 OCTOBER 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The decision made by the Administrative Appeals Tribunal on 18 November 2009 in proceeding number 2007/5801 is set aside and the matter is remitted to the Tribunal to be determined according to law. 

3.The respondent is to pay the applicant’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1490 of 2009
ON APPEAL…

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Knight v Repatriation Commission [2010] FCA 1134
Case
[2010] FCA 1134
Decision Date

CaseChat Overview and Summary

The case of Knight v Repatriation Commission involved Jacqueline Knight, the widow of Keith Knight, appealing against a decision of the Tribunal that her application for a war widow’s pension was dismissed. Mrs Knight argued that her late husband's service in the Royal Australian Navy, during which he was exposed to a significant amount of environmental tobacco smoke, materially contributed to his ischaemic heart disease, leading to his death. The Tribunal found that the clinical onset of the disease occurred well after Mr Knight's naval service had ended, which led to the rejection of her claim.

The legal issues before the court included whether the Tribunal erred in law by making factual findings at an early stage of deliberation and if those errors vitiated the decision. The court also had to decide whether the Tribunal was correct in interpreting the relevant statutory provisions, specifically the second clause of factor 6(i) of the Schedule of Prescribed Conditions (SoP). The interpretation of this clause was pivotal because it required the last exposure to the specified atmosphere to occur no more than five years before the clinical onset of ischaemic heart disease.

The court found that the Tribunal did indeed err in law by making factual findings at an early stage, which is not permitted under the statutory framework. This misstep, however, did not vitiate the decision because the errors did not affect the outcome. Nonetheless, the court ruled that the Tribunal's interpretation of factor 6(i) was incorrect. The clause should not be strictly confined to the last exposure during service but should consider any relevant exposure that could have contributed to the disease. Consequently, the court held that the Tribunal's decision was flawed, and the matter was remitted back to the Tribunal for reconsideration in light of the correct interpretation of the SoP. The court ordered that the appeal be allowed and the matter remitted to the Tribunal for further consideration.

Orders

Orders of the court

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Background

Background to the litigation

It is common ground in this case that the Tribunal erred in law in more than one respect. One issue concerns the impact or significance of those errors, because an error that could not have affected the decision will not vitiate it. See BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 at 254 per Lockhart and Hill JJ. There is no dispute, however, that if the applicant’s principal contention is upheld, the appeal must be allowed and the matter remitted to the Tribunal. For the reasons that follow I am of the opinion that the applicant should succeed.Factual background The applicant, Jacqueline Knight, is the widow of the late Keith Knight, who served in the Royal Australian Navy (“the Navy”) from 1964 to 1974. The appeal relates to her application for a war widow’s pension following his untimely death. Mr Knight died at the age of 51 on 9 July 1998 after a myocardial infarction. Mrs Knight claimed that passive exposure to smoke in enclosed spaces onboard ships during her husband’s naval service materially contributed to him contracting ischaemic heart disease, which, in turn, caused his death. There was no dispute that Mr Knight’s death was caused by ischaemic heart disease. Neither was it in dispute that during his naval service he was exposed to a visible tobacco smoke haze in an enclosed space for at least 1000 hours. The problem for Mrs Knight was that a medical opinion submitted to the Tribunal on her behalf, and which the Tribunal accepted, pointed to the onset of clinical ischaemic heart disease in 1996, two years before Mr Knight’s death, but more than two decades after he had left the Navy. It was this circumstance that gave rise to the legal issue that has bedevilled her claim. After Mr Knight left the Navy he went on to work for the Commonwealth in the Department of Defence. There was uncontested evidence before the Tribunal that during his time in the Department “a fog of smoke” permeated his workplace and circulated via the air conditioning and, in its reasons, the Tribunal noted that it was aware that smoking was not discouraged in offices of the Commonwealth Public Service at the time. The Tribunal found as a fact that the exposure to smoke whilst in the Department of Defence affected Mr Knight’s health forcing him (in 1987) to cease work in the Public Service. In 1988 the Commissioner for Employees’ Compensation awarded him workers’ compensation for “an aggravation of a disease, namely reactive diathesis due to cigarette smoke” to which his employment was a contributing factor. After he left the employ of the Commonwealth, Mr Knight retrained and worked as a bricklayer. In that job, Mrs Knight said, he continued to be exposed to environmental tobacco smoke at hotels he attended to secure work and where he stayed when he was working away from home. Mrs Knight told the Tribunal that her husband always returned home smelling of cigarettes, that she had received reports from her son that the smoke and haze in his room was “really awful” and, although her husband would have his own bedroom, smoke “permeated through” the air-conditioning system. She also stated that, after her husband left the Navy, he continued to be involved with naval life, socialising with ex-servicemen, many of whom smoked. The Tribunal made no factual findings about any of these matters.The legislative scheme

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In effect, Mrs Knight was contending that the second clause of the SoP was satisfied if there was material to point to the conclusion that Mr Knight developed ischaemic heart disease within five years of his last exposure to the required atmosphere, whether the time of last exposure occurred during service or, as in Mr Knight’s case, after service. The Tribunal’s decision In an ex tempore decision given on 18 December 2009 the Tribunal determined that Mrs Knight’s hypothesis with respect to Mr Knight’s operational service was not upheld by the SoP and therefore affirmed the decision under review and dismissed her claim. Unsurprisingly, as the applicable SoP is in similar terms and the standard of proof is less beneficial, it also dismissed her claim in so far as it was based on Mr Knight’s defence service. On any view, Mrs Knight must succeed on the basis of Mr Knight’s operational service or not at all and, as I said earlier, only the claim based on operational service is material in this Court. It appears from the Tribunal’s reasons that the Commission did not dispute that Mr Knight satisfied the first clause of factor 6(i) of the SoP during his “naval service”, that is, that Mr Knight had at least 1000 hours of the required exposure. Regardless, the Tribunal was independently “reasonably satisfied” that Mr Knight had in fact accumulated the required exposure by the end of his period of operational service. Thus, the Tribunal’s decision turned on its view about whether Mr Knight satisfied the second clause in factor 6(i), which required that the “last exposure to that atmosphere” be no more than “five years before the clinical onset of ischaemic heart disease”. The Tribunal summarised Mrs Knight’s hypothesis. But it did not deal with the material bearing on Mr Knight’s exposure after leaving the Navy except to find that he would not have had the required exposure to a visible tobacco smoke haze “while actually working as a bricklayer”. The reason why it considered it unnecessary to deal with this material is clear. The Tribunal took the view that clause 6(i) required that Mr Knight’s ischaemic heart disease develop within five years of the last exposure during operational service. Thus, the Tribunal stated that to conform to the SoP, clinical onset would have had to occur before 26 November 1973, that is, within five years of the end of his operational service. So, although the Tribunal accepted that Mr Knight’s exposure during service “may have had a cumulative effect upon passive smoke endured by him after naval service”, it considered it was irrelevant, as he had not developed ischaemic heart disease within five years of the end of his last period of operational (or defence) service. In reaching its conclusion about the correct interpretation of factor 6(i), the Tribunal referred to two judgments of this Court. The first was Kattenberg v Repatriation Commission [2002] FCA 412, 34 AAR 562 (“Kattenberg”), where the Court held that the Tribunal had erred in law in holding (with regard to an SoP regarding intervertebral disc prolapse) that a factor requiring the smoking of at least 30 pack years of cigarettes before clinical onset signified that the 30 pack years must have occurred during service. The second was Repatriation Commission v Newson [2008] FCA 401 (“Newson”) which relates to SOPs on osteoarthrosis.

Ratio Decidendi

Legal Principle Established

The third question is, in effect, whether the Tribunal was wrong to find that there was no evidence that Mr Knight’s service made a material contribution to his heart disease.The first ground of appeal: making factual findings at an early stage of deliberation The first question of law was pleaded in the following way:When a decision maker, applying sub-section 120(3) of the Act, considers the whole of the material before it as to whether a reasonable hypothesis of connection is raised between the death of a veteran and the circumstances of the particular service rendered by the veteran, is the decision-maker permitted at law to make findings of fact at that stage of consideration, and to make any such findings at the ‘reasonable satisfaction’ standard of proof? The short answer to this question is ‘no’. Both parties believed that the Tribunal did not move beyond what has come to be known as the third stage of the Deledio process. The third stage of the Deledio process is a reference to the Full Court’s not entirely accurate parsing of the decision-making process prescribed by s 120 of the Act in Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”) at 97-98. The inaccuracy, pointed out in Bull v Repatriation Commission [2001] FCA 1832, 188 ALR 756 at [13]-[14] per Emmett and Allsop JJ, is not presently relevant. In Deledio the Court said there was a four stage process involved in the determination of whether (amongst other things) death was war-caused. At the first stage the decision maker has to consider whether the whole of the material points to an hypothesis connecting the death with the circumstances of the veteran’s service. If not, then the application fails. At the second stage where the material raises such an hypothesis the question is whether there is an SoP in force. At the third stage (where an SoP is in force), the Court explained, the Tribunal must decide whether the hypothesis is consistent with the ‘template’ in the SoP, that is, whether one or more of the minimum factors the SoP lists are present and considering whether one or more of them is related to the relevant service, which, in turn, involves the application of s 196B(14) of the Act. Until this stage is complete, the Tribunal is not permitted to make findings regarding the facts necessary to make out the hypothesis. It is not to determine whether the material before it establishes the necessary facts, only if the material “points to some fact or facts (“the raised facts”) which support the hypothesis” (Bushell v Repatriation Commission (1992) 175 CLR 408 at 414 per Mason CJ, Deane and McHugh JJ), which in turn must be supported by the applicable SoP. Put another way, in the other key High Court decision, “the material before the Commission [or Tribunal] must raise some fact or facts which give rise to the hypothesis” (Byrnes v Repatriation Commission (1993) 177 CLR 564 (“Byrnes”) at 569 per Mason CJ, Gaudron and McHugh JJ). If, in accordance with these principles, the material raises a reasonable hypothesis connecting the service and the injury, disease or death, the claim has to be dealt with in accordance with s 120(1). That is the fourth stage.