Knight v Repatriation Commission

Case [2002] FCA 103

FEDERAL COURT OF AUSTRALIA

Knight v Repatriation Commission [2002] FCA 103

VETERANS’ AFFAIRS – veterans’ entitlements – lumbar spondylosis – whether a war-caused disease – Tribunal found material pointed to no reasonable hypothesis – whether Tribunal applied legislation correctly – application of statement of principles

WORDS AND PHRASES – “acute symptoms and signs of pain, tenderness, and altered mobility or range of movement”

Veterans’ Entitlements Act 1986 (Cth) ss 6A, 9, 119, 120, 120A, 196B
Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)

Repatriation Commission v Deledio (1998) 83 FCR 82 applied
Harris v Repatriation Commission [2000] FCA 873 (2000) 31 AAR 270 considered
Connors v Repatriation Commission [2000] FCA 783 (2000) 59 ALD 61 considered
Repatriation Commission v Bey (1997) 79 FCR 364 applied
Kumar v Immigration Review Tribunal (1992) 36 FCR 544 referred to
Repatriation Commission v Flentjar (1997) 47 ALR 67 referred to
Thanh Phat Ma v Billings (1997) 71 FCR 431 referred to
Grundman v Repatriation Commission [2001] FCA 892 referred to
Harris v Repatriation Commission [2000] FCA 1687 (2000) 32 AAR 84 applied
Arnott v Repatriation Commission [2001] FCA 262 (2001) 32 AAR 445 applied
Byrnes v Repatriation Commission (1993) 177 CLR 564 referred to
Bushell v Repatriation Commission (1992) 175 CLR 408 referred to
Repatriation Commission v Bey (1997) 79 FCR 364 referred to
Repatriation Commission v Keeley [2000] FCA 532 (2000) 98 FCR 108 considered
Repatriation Commission v Gorton [2001] FCA 1194 (2001) 33 AAR 370 considered

LESLIE ROY KNIGHT v REPATRIATION COMMISSION
V 673 of 2000

GRAY J
15 FEBRUARY 2002
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 673 of 2000

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

LESLIE ROY KNIGHT
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

GRAY J

DATE OF ORDER:

15 FEBRUARY 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the proceeding.

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 673 of 2000

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

LESLIE ROY KNIGHT
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

GRAY J

DATE:

15 FEBRUARY 2002

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The nature of the proceeding

  1. This appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) concerns the manner in which the Tribunal dealt with a review of a decision about entitlement to pension pursuant to the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”). The points raised concern the proper approach of the Tribunal to complex provisions of the VE Act relating to the establishment of such an entitlement.

    The facts

  2. The applicant served in the Royal Australian Airforce from 29 August 1944 to 8 March 1949. Part of his service was overseas before the end of World War II, so the whole of the service is within the definition of “operational service” in s 6A of the VE Act. From some…

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AGLC
Knight v Repatriation Commission [2002] FCA 103
Case
[2002] FCA 103
Decision Date

CaseChat Overview and Summary

In the matter of Knight v Repatriation Commission, the applicant, a former serviceman, appealed against a decision of the Administrative Appeals Tribunal ("the Tribunal") that had upheld the Repatriation Commission's refusal to recognise lumbar spondylosis as a war-caused disease. The applicant contended that the Tribunal erred in law by misapplying or failing to apply correctly certain provisions of the Veterans' Entitlements Act 1986 ("the VE Act") and in misinterpreting the relevant Statement of Principles No. 165 of 1996. The Court was required to determine whether the Tribunal had correctly applied the relevant legislation and principles in reaching its decision.

The Court found that the Tribunal had correctly identified the issue before it and had not erred in law. The Tribunal did not disregard the primacy of the relevant provisions of the VE Act; instead, it focused on the Statement of Principles which was sufficient to resolve the matter before it. The Tribunal's observation about the absence of medical evidence was not an imposition of a requirement but a simple observation of the material before it. Additionally, the Court held that the Tribunal correctly construed the definition of "trauma to the lumbar spine" in the Statement of Principles, and there was no misapplication of the case law on hypotheses.

Having reviewed the submissions and the evidence, the Court concluded that the applicant had not established any error of law on the part of the Tribunal. The applicant's appeal was dismissed, and the Court ordered the applicant to pay the respondent's costs of the proceeding.

ORDERS:

1. The application is dismissed.
2. The applicant pay the respondent’s costs of the proceeding.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the proceeding.

Background

Background to the litigation

This appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) concerns the manner in which the Tribunal dealt with a review of a decision about entitlement to pension pursuant to the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”). The points raised concern the proper approach of the Tribunal to complex provisions of the VE Act relating to the establishment of such an entitlement. The facts The applicant served in the Royal Australian Airforce from 29 August 1944 to 8 March 1949. Part of his service was overseas before the end of World War II, so the whole of the service is within the definition of “operational service” in s 6A of the VE Act. From some time in 1946 until 22 December 1948, the applicant served in Japan. He may also have served in Borneo before going to Japan. By application lodged with the Repatriation Commission (“the Commission”) on 1 September 1997, the applicant sought a disability pension and medical treatment for disabilities that had not by then been accepted as service-related. The conditions he identified were heart problems, stress, hearing problems, tinnitus and back problems (spondylosis). On 18 November 1997, a delegate of the Commission published a written decision, accepting the claim for bilateral sensorineural hearing loss and tinnitus and anxiety disorder. At the same time, the delegate refused the claim for ischaemic heart disease and lumbar spondylosis. The delegate granted a disability pension at 40 per cent of the general rate with effect from 1 June 1997. The applicant appealed from this decision to the Veterans’ Review Board. On 1 February 1999, the Veterans’ Review Board published a decision in writing, affirming the decision to refuse the claim for lumbar spondylosis and ischaemic heart disease on the ground that these conditions were not war-caused. The applicant then appealed to the Tribunal. The Tribunal conducted a hearing on 30 May 2000, at which the applicant was represented by counsel. The Tribunal’s decision was dated 4 August 2000. In its reasons for decision, the Tribunal recorded the fact that, in opening the applicant’s case at the hearing, his counsel had conceded that the applicant could not succeed in having ischaemic heart disease accepted as war-caused. It was not in dispute that the applicant was suffering from lumbar spondylosis. The only issue before the Tribunal, as it recorded in its reasons for decision, was whether the applicant’s lumbar spondylosis was a war-caused disease. The Tribunal found that it was not and affirmed the decision under review. It is from that decision of the Tribunal that the applicant has appealed to this Court. By s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), such an appeal is limited to a question of law. The questions of law identified in the applicant’s notice of appeal are:“1. Was the Tribunal wrong in law in failing to apply or apply correctlyss 9, 119, 120(1)(3)(6) and 120A of the Veteran’s [sic] Entitlements Act 1986?2.Was the Tribunal wrong in law in following the decision of Connors vRepatriation Commission [2000 FCA, at 283] where the Courtqualified the High Court decisions of Bushell and Byrnes that the hypothesis may assume the existence of a fact?3.Was the Tribunal wrong in law in interpreting Statement of PrinciplesNo. 165 of 1996?”The legislation

Evidence

Evidence Before The Court

Counsel for the applicant argued that the Tribunal failed to recognise the primacy of s 9 and s 120(1) and (3) of the VE Act. The submission was based on the proposition that the Tribunal had focused its attention on the SoP, and had thereby “disregarded the primacy” of the provisions referred to. As I have said, the Tribunal, with the assistance of counsel who appeared for the applicant, identified correctly the issue before it. It was unnecessary for it to discuss in detail, or at all, the effect of s 9 or of any subsection of s 120. Requiring medical evidence According to the next submission of counsel for the applicant, the Tribunal erred in law in requiring medical evidence relating to the extent of the injury. This appears to have been based on a statement in the reasons for decision of the Tribunal that there was “no medical evidence relating to the extent of injury and treatment.” This statement was made in the context of an examination of the terms of the definition of “trauma to the lumbar spine” in the SoP, and particularly the words “acute symptoms and signs of pain, tenderness and altered mobility or range of movement … where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs.” The Tribunal was merely pointing out the absence of material that would point to a hypothesis that acute symptoms and signs lasted for a period of at least one week immediately after an injury. It was not attempting to impose any requirement that there be medical evidence. It was not imposing any onus. Nor was it drawing any adverse conclusion on the facts. It was simply pointing to the absence of material of a particular kind.The interpretation of the SoP Counsel for the applicant contended that the Tribunal had misconstrued the definition of “trauma to the lumbar spine”. The contention focused on the words “acute symptoms and signs of pain, tenderness and altered mobility or range of movement”. The argument was that the adjective “acute” qualified only the noun “pain”, leaving the other elements unqualified. The argument is itself a misconstruction. The adjective “acute” plainly qualifies both of the nouns “symptoms” and “signs”. In turn, those nouns are related to each of the elements following, namely “pain”, “tenderness”, “altered mobility” and “[altered] range of movement”. It is true, as counsel for the applicant put, that there cannot be “acute range of movement”. This is not to the point in construing the words of the SoP. In Harris v Repatriation Commission [2000] FCA 873 (2000) 31 AAR 270, Finn J dealt with the same argument. At [31], his Honour said:“Insofar as the trauma component of those factors is concerned this requires (inter alia) that the injury in question caused the development of ‘acute symptoms and signs’ of (i) pain, (ii) tenderness and (iii) altered mobility or range of movement. Though the preposition ‘of’ only precedes the word ‘pain’ in the SoP’s definition I am satisfied that the definition is to be read as if ‘of’ preceded the words ‘tenderness’ and ‘altered’ as well. The applicant has submitted to the contrary, contending that the definition is to be read as if it referred to ‘acute symptoms and signs of pain and/or tenderness, and [meaning “together with”] altered mobility’ etc. When one has regard both to the balance of the sentence in which the definition appears (and particularly to the words ‘and where such acute symptoms and signs last for a period of at least one week’) and to what, ordinarily, would be the work done by the preposition ‘of’ in a sentence constructed in the manner of the definition, the definition must be construed as I have proposed. I should add that the construction is the one propounded by the respondent.”

Decision

Reasons for decision

GRAY J
Counsel for the applicant also complained that the Tribunal misapplied Deledio by failing to appreciate that, if there was a dispute about a hypothesis, it had to be rejected beyond reasonable doubt if it were to be discarded. I have already dealt with this argument in another form in these reasons for judgment. The Tribunal was not attempting to find the facts. It was only examining the material before it for the purpose of determining whether there existed a hypothesis satisfying the requirements of the SoP. It found that the material did not point to any such hypothesis.Conclusion The applicant has therefore failed to establish that the Tribunal made any error of law in rejecting his claim. The application must therefore be dismissed. Costs should follow the event, so that the applicant must be ordered to pay the respondent’s costs of the proceeding.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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