Mason and Repatriation Commission - [2001] AATA 461

DECISION AND REASONS FOR DECISION [2001] AATA 461

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1428

VETERANS' APPEALS DIVISION          )
           Re      UNA MASON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Rear Admiral A R Horton, AO, Member

Date29 May 2001
PlaceSydney

Decision The Tribunal affirms the decision under review.

[Sgd] M J Sassella
Senior Member
CATCHWORDS

VETERANS' AFFAIRS – pension – whether death of applicant's husband was war caused – whether increase in animal fat related to service - whether animal fat intake during and after service met statement of principles – relevant statement of principles

Veterans' Entitlements Act 1986 - ss 5B, 6A,8,11,13,14,119,120A,139,196B(14)
Acts Interpretation Act 1901 – ss 8, 50

Statements of Principles No 95 of 1995, No 191 of 1996

Keeley v Repatriation Commission (1999) 30 AAR 48
Repatriation Commission v Keeley (2000) 98 FCR 108
Byrnes v Repatriation Commission (1993) 177 CLR 564
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 83 FCR 82
Cook v Repatriation Commission (2000) FCA 1756
Re Zoarder and Another and Department of Social Security (1998) 26 AAR 342
Re Olsen and Repatriation Commission [2000]) AATA 909
Re Reading and Repatriation Commission [2000] AATA 841
Re Ryan and Repatriation Commission [2000] AATA 849
Repatriation Commission v Walters [2001] FCA 228
Gorton v Repatriation Commission [2001] FCA 286
Repatriation Commission v Thompson [2001] FCA 341

REASONS FOR DECISION

29 May 2001 M J Sassella, Senior Member A R Horton, AO, Member

This is an application for review of a decision dated 25 August 1995 by a delegate of the Repatriation Commission ("the Respondent"), and affirmed on review by the Veterans' Review Board under section 139 of the Veterans' Entitlements Act 1986 ("the Act") on 22 September 1998, that the death of Peter Mason ("the Veteran") was not war caused, and hence Una Mason ("the Applicant") is not eligible for a war widows pension pursuant to subsection 13(1)(a) of the Act. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 9 October 1998.
At the hearing before the Tribunal on 26 October 2000, the Applicant was represented by Ms J Buchanan of Legal Aid. Ms G Pacey appeared for the Respondent.
The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence the following:

Extract (pages 308-317) of RAF Manual of Cooking (1951), 5th Edition       Exhibit A1
Letter from Ministry of Defence, London dated 23 October 1998 (covering Exhibit A1)     Exhibit A2
Statement from Mr B P Giles dated 21 October 1998   Exhibit A3
Statement from Mr W Moffatt, Honorary Secretary, 460 Squadron Association dated 16 October 1998 Exhibit A4
Statement from Mr A Copeland dated 18 October 1998          Exhibit A5
Statement by the Applicant dated 21 October 1998     Exhibit A6
Report by Dr P Lyons-Wall, Nutritionist, dated 26 March 2000          Exhibit A7

ISSUES BEFORE THE TRIBUNAL

The Applicant claims war widows pension on the basis that the death of her late husband, Peter Mason, was war caused, contending that he satisfied the amended Statement of Principles ("SoP") concerning Malignant Neoplasm of the Prostate, Instrument No. 191 of 1996 as determined by the Repatriation Medical Authority ("the RMA"). The Respondent claims that the correct SoP is the earlier SoP in respect of Malignant Neoplasm of the Prostate, Instrument No. 95 of 1995, this being the relevant Instrument at the time of primary decision. Both parties agreed that the veteran would not meet the requirements of Instrument No. 95 of 1995.
Statement of Principles Instrument No. 95 of 1995 states, relevantly:
SoP No 95 of 1995
"1. Being of the view that there is sound medical-scientific evidence that indicates that malignant neoplasm of the prostate and death from malignant neoplasm of the prostate can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate or death from malignant neoplasm of the prostate with the circumstances of that service, are:
(a) being exposed to herbicides in Vietnam; or
(b) inability to obtain appropriate clinical management for the malignant neoplasm of the prostate.
2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(b) must be related to any service rendered by a person.
…"

Statement of Principles, Instrument No. 191 of 1996 amends Instrument No. 95 of 1995 by:
"1.       omitting the factor (b) from paragraph 1, and replacing it with the following:
(b)       Increasing animal fat consumption by at least 40%, and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate; or
(c)       inability to obtain appropriate clinical management for malignant neoplasm of the prostate."
The Applicant's claim hinges on paragraph 1(b) of instrument No.191 of 1996, that is that the veteran met the criteria for the consumption of animal fat as defined, and that this was related to his war service. The veteran served in the Royal Australian Air Force ("RAAF") from 30 January 1943 to 23 March 1946 and this constitutes eligible war service as defined in the Act. As the veteran served in the United Kingdom as well as Australia, the whole of his service constitutes operational service. The Tribunal is required to find that his death was war caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding, pursuant to subsections 120(1) and 120(3) of the Act. Section 120A of the Act is also relevant, in that the Tribunal must assess the reasonableness of hypotheses in accordance with relevant SoPs.
FACTS AND EVIDENCE
The Applicant gave evidence both orally and at Exhibit A6 in respect of her late husband's dietary habits. She gave evidence from her own observations in the period from first meeting the veteran in 1940, but relied on her knowledge of common Australian eating standards and the recollections of old school friends for the earlier period in his life. She relied on advice from his peers and that provided by the Ministry of Defence, London (Exhibits A1 and A2) as regards the likely dietary standards and practices during his war service. Evidence from other ex-service personnel was provided to the Tribunal at Exhibits A3, A4 and A5, and oral evidence was given for the Applicant by Mr A Copeland and Mr B P Giles. Dr Lyons-Wall, a nutritionist, also gave expert evidence.
The veteran was born in 1924, his family living on an orchard in the Castle Hill area of Sydney. Mrs Mason suggested that his pre-war diet would have been similar to that common in the community at that time, cereal and fruit juice at breakfast, sandwiches for lunch and a cooked meal at dinner, but thought the fare would have been quite simple, particularly in respect of growing up during the depression. The veteran attended King's School as a day boy, and from other evidence, he did not partake of meals at the school.
In January 1943, and directly after leaving school, the veteran joined the RAAF. He undertook pilot training through the Empire Air Training Scheme, initially in Australia, before taking passage to the United Kingdom, where he was stationed from 27 January 1944 to 4 January 1946. On completion of his training at Royal Air Force ("RAF") establishments in the United Kingdom, he served on 460 Squadron (RAAF) with Bomber Command, participating in operations flying Lancasters over Europe.
Mr A Copeland provided a statement at Exhibit A5 and gave evidence by telephone. He knew the veteran from about 1930, and attended King's School with him, also as a day boy. They joined the RAAF together, and had parallel careers, Mr Copeland also flying Lancaster bombers with 460 Squadron. He considered the standard and variety of food in RAAF establishments as being better than that available to civilians; 'there was no rationing.' Eggs and food containing animal fats were readily available. Food during the voyage to England, and whilst serving in RAF establishments was 'quite different to that experienced at home and in the RAAF'; eggs cooked in rancid butter during the voyage, and lots of fried food and 'eggs dripping with fat', at RAF establishments. Whilst there were relatively few vegetables, aircrew in particular did not suffer the privations of the rationed civilian population in the United Kingdom. There was plenty of food, and an entitlement to additional meals, such as fried eggs and bacon and welsh rarebit before and after operations. He considered the night flying suppers as 'always welcome', and in response to questioning from the Respondent, he stated that aircrew ate large meals before operational flights.
Mr B P Giles provided a statement at Exhibit A3 and gave oral evidence to the Tribunal. He too knew the veteran from childhood and also attended King's School. He commenced pilot training before the veteran, but their courses were similar. He served in a RAF Bomber Command squadron flying Lancasters. In Exhibit A3 he stated that 'in both Australia and Britain, air force personnel, particularly aircrew, were well fed, …if perhaps not wisely in the light of present knowledge.' He saw aircrew as being young with good appetites and 'being plied with all types of animal fatty products.' He described meals to the Tribunal as often swimming in fat, with plenty of bacon, eggs, pork pies, fish and chips and fried bread, and usually on a self service basis. There was usually a desert such as pudding for one meal, but not much fruit. During flights, which lasted anywhere from about six to eight hours, aircrew carried limited flight rations such as chocolate, dried fruit and coffee, and each man carried an small emergency pack. Crew generally remained at their operating station. The Tribunal found Mr Giles to be a forthright and credible witness.
At Exhibit A4, 460 Squadron (RAAF) Association stated that the food regime was generally 'pretty much the same' (for aircrew at the different air stations) and 'principally contained a lot of "fatty" items'. The Association considers that the style of food served to Australian servicemen in the United Kingdom 'was, in most cases, foreign to their normal diets'.
Dr P Lyons-Wall gave telephone evidence in support of her comprehensive report at Exhibit A7. In response to a request by the Applicant for professional opinion on a number of issues relating to the fat intake of the veteran, she drew the following conclusions:
(a)      the veteran consumed an average of 71 g of saturated animal fat for about 25 years after service, based on the evidence given to her by the Applicant, and hence met that component of the criteria in the SoP Instrument No. 191 of 1996 paragraph 1(b);
(b)       the veteran's animal fat consumption increased by over 200% during his RAAF service (to about 92 g) from that estimated (44g) as being consumed pre-war, this increase being related to the ready availability of foods high in animal fats. Hence, the veteran would meet that component of the criteria in Instrument No. 191 of 1996 paragraph 1(b); and
(c)       the increase in animal fat consumption during service contributed to the formation of a habit which continued post war for two reasons, namely a greater variety of food and an increase in the quantity, the latter being corroborated by the weight gain of the veteran.
Dr Lyons-Wall addressed the evidence in support of her conclusions during examination in chief, conceding that she was perforce required to base some of her conclusions on the recollections of the Applicant and the evidence of other aircrew. In cross examination, she conceded that her conclusions were based on estimates, but given that the estimated consumption was for saturated fats, the total fat consumption (as defined in Instrument No. 191 of 1996), could well be higher to the extent of some 10g daily. She conceded that the veteran had a choice as to his diet post war, but reaffirmed her view that his war experience at an impressionable young age, with the introduction to a wider variety of food and an associated increase in consumption, had a significant influence on his eating habits thereafter, until about 1970. At this stage his children left home, and his wife was able to modify his diet to take account of medical advice. In response to the Tribunal, Dr Lyons-Wall indicated that the pre-war diet as evidenced by the Applicant accorded with her own research and the views she recalled of her parents. She agreed that Australians pre 1960 or so basically followed a British diet, but ate less fried food and fat.
Returning to the medical history of the veteran, a composite report was prepared by Dr H M Learoyd, Consultant Urologist, on 7 March 1996 (T20) in which he detailed the 'relationship between Mr Mason's war service and his stone formation'. This indicates that in 1976, a calculus was treated, with a further renal calculus being treated by operation in 1970. A number of urinary and bladder problems occurred spasmodically until August 1993, when the veteran was diagnosed as having carcinoma of the prostate. The death certificate shows that he died on 15 May 1995 of prostate cancer. Dr Learoyd postulated that the development of prostatic obstruction 'was an immediate consequence of his renal surgery and the ultimate progression to malignancy of the prostate was related to the trauma of the numerous endoscopic procedures'. Thus he considers it reasonable to state that the veteran's war service ultimately contributed to his death from prostate carcinoma. The Veteran's Advocacy Service subsequently requested the RMA to investigate the hypothesis developed by Dr Learoyd, in accordance with section 196E of the Act. The advocate for the Applicant believes this investigation has been undertaken, but no relevant amendment to the Statement of Principles for Malignant Neoplasm of the Prostate has eventuated.

ANALYSIS OF EVIDENCE AND FINDINGS

Both parties agreed at the outset that the veteran would not meet the requirements of SoP Instrument No. 95 of 1995. Accordingly the issue then becomes that of whether the later amended principles enunciated in Instrument No. 191 of 1996 can be applied. The Applicant submitted that should be the case, based primarily on the consideration of accrued rights in the majority judgment of the Full Federal Court in Repatriation Commission v Keeley (2000) 98 FCR 108.
Relying also on Keeley (supra), as well as other decisions, the Respondent submitted that the earlier Instrument No. 95 of 1995, in force at the date of the primary decision, was the applicable authority. The Respondent further submitted that were the Tribunal to decide that the amended Instrument has application, the review of the primary decision would nevertheless fail as the evidence was insufficient to establish a causal link between the veteran's war service and the carcinoma of the prostate, nor did it establish that the consumption of fat by the veteran post his war service was related to that war service.
Keeley (supra) was an appeal to the Full Federal Court from the decision by a single judge (Heerey J) in Keeley v Repatriation Commission (1999) 30 AAR 48, concerning the application for a pension by the widow of a veteran who died of multiple myeloma. Both the Repatriation Commission and the VRB rejected the widow's claim against the extant SoP. In the intervening period before a hearing by the Tribunal, the SoP was revoked and replaced by a new SoP. The Tribunal applied the new SoP and the claim failed. Before Heerey J, it was argued by the Commission that as the matters related to sections 120A and 120B of the Act, then the SoP regime referred to matters of procedure, thus no substantive right accrued. Heerey J rejected both this and the alternate submission that the second SoP was intended to apply to all claims decided after it came into effect. His Honour further held section 50 of the Acts Interpretation Act 1901 ("the AIA") to be applicable, in the absence of any contrary intention. That is, the Tribunal is to apply the SoP in force at the date of the primary decision.
Relevantly, section 50 of the AIA states:
"50. Where an Act confers power to make regulations, the repeal of any regulations which have been made under the Act shall not, unless the contrary intention appears in the Act or regulations effecting the appeal;
Affect any right, privilege, obligation or liability acquired, accrued or incurred under any regulations so repealed, or;
…."
The Full Federal Court in Keeley (supra) dismissed the appeal, holding that the provisions of section 120A and a determination of the RMA under section 196B were substantive in character. Lee and Cooper JJ stated in a majority decision in respect of accrued rights (paragraph 46):
"Unless a contrary intention is clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued. With regard to beneficial legislation such as the Act, it may be assumed that a construction of substantive provisions least likely to work or cause unfairness in result is to be preferred. It may be concluded that Parliament intended that the review of a decision on a claim made pursuant to a Statement that replaced the former Statement after the decision had been made, is to be conducted as if the former Statement had not been revoked. Unless the Act provides otherwise, a proceeding initiated under the Act to review a decision made by the Commission was to be carried out determining if the respondent's claim to a pension had been wrongly refused, the decision of the Commission to be replaced by the decision that should have been made by the commission had it properly applied the law as it stood: see Esber at 440-441 per Mason CJ, Deane, Toohey, Gaudron JJ"
Kiefel J considered the matter of accrued rights in the following manner (at paragraph 76):
"The repeal of the first SoP affected the content of Mrs Keeley's right. It follows, in my view, that s 50 AIA operates, subject to the further question whether any intention to the contrary is disclosed by the second SoP as the repealing provision"

In respect of whether any contrary indication had been disclosed in the matter of Keeley, it was stated at paragraph 79:

"The essence of the appellant's argument was that one might derive from the provisions of the Act that it was intended to present current scientific and medical knowledge as the requirement of evidence of connexion. One may put to one side, for the present, the question whether this contextual setting for the second SoP was sufficient for an intention to be derived from it, as the repealing provision, as the AIA (Acts Interpretation Act 1901) requires. His Honour the primary judge considered that the underlying view, that a new law is considered to be an improvement on the old, could be applied to all amending or repealing legislation. Further, the need for consistency of decisions of lay tribunals is equally met be applying the SoP existing at the time of the primary decision. I respectfully agree."

In Keeley, the first SoP was more beneficial to the Applicant than the second SoP. This matter differs in that the second SoP, that is Instrument No 191 of 1996, is more beneficial to the Applicant and, as agreed by the parties, is the only SoP that could have relevance to the circumstances of the veteran. In that respect it aligns with Re Reading and Repatriation Commission [2000] AATA 841 and Re Ryan andRepatriation Commission [2000] AATA 849, as relied upon by the Respondent. In both those cases, the presiding member was a Deputy President; in each case, the Tribunal decided that the SoP in force when the primary decision was made was the relevant authority.

Re Olsen and Repatriation Commission [2000] AATA 909, following a presidential decision in Re Zoarder and Anotherand Department of Social Security (1998) 26 AAR 342, took a different approach. In that matter, the Tribunal found that the veteran should benefit from application of the second SoP, which came into effect in the course of the Tribunal hearing.
The arguments used, and the conclusions reached in the above decisions, encapsulate the relevant issues in this matter in respect of the appropriate SoP. In Re Reading (supra), the Tribunal referred to various cases considered by the Federal Court, and at paragraph 35 stated:
"The Federal Court has not considered the particular situation with which we are concerned. The situation in the Keeley case has the closest alignment in that a SoP was in existence at the time of the lodgement of the claim and was subsequently varied. Lee and Cooper JJ in the Keeley case appear to have assumed that the law as it stood when the right was accrued would be more beneficial than a subsequent amendment."
The Tribunal went on to state that in its view, the fact that the later SoP was more beneficial to the applicant did not show an intention that it should take precedence over the SoP applying at the time of the primary decision on the claim, continuing at paragraphs 49 and 50:
"…The only difference between the situation in this case and that in Keeley is that the outcome is more beneficial to the claimant for the person. The other factors taken into account in Keeley remain the same. That is to say, the scheme of the Act and the need for consistency of decision making remain the same. There has been a change in the claimant's substantive right although, on this occasion, the change has been to lower the bar to the remedy.
We do not consider the fact that the application of the later SoP would lead to a more beneficial outcome than the earlier SoP can, in itself, lead to a different conclusion. It is not only rights which are preserved pursuant to s 8 of the Acts Interpretation Act 1901 but also privileges and, more relevantly in this case, obligations and liabilities acquired, accrued or incurred under the repealed legislation. Where a SoP has been made, the Commission acquires an obligation to determine a person's claim in accordance with that SoP. Although we have paid it the highest regard, it follows that, with respect, we do not agree with the view expressed by the Tribunal in Re Zoarder and Secretary, Department of Social Security (1998) 26 AAR 342, Mathews J, President) (in respect of s.8)…"
The Tribunal concluded in the following manner at paragraph 51:
"The only way in which consistency of decision making can be maintained is if the finding of their Honours in Keeley applies equally whether the change to the later SoP is beneficial to claimants or not. If it were otherwise, the applicable SoP could be determined by the particular circumstances of each claimant for what might be beneficial to one might not be beneficial to another…"
The Tribunal in Re Ryan came to a similar conclusion, stating at paragraph 20:
"Clearly the Act is beneficial legislation. However we do not agree that the fact the current SoP provides a more beneficial result for the veteran indicates an intention that it should apply in the present circumstances. Unless a contrary intention is clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued: Keeley per Lee and Cooper JJ at 165. When the application for review was made to the Tribunal, the veteran had a right to have the commission decision reviewed on the law as it stood. The fact that the later SoP would lead to a different outcome does not in our opinion of itself provide an answer. Heerey J in Keeley referred to the need for consistency in decision making. His Honour observed that if the Commission argument were to be accepted it would mean that when a decision on a claim is made by the Commission, liability under the Act is subject to variation, whether up or down in an unpredictable way over an unpredictable period. This view was impliedly endorsed on appeal by Lee and Cooper JJ and expressly by Kiefel J"

The Federal Court has considered this issue in four cases, with somewhat inconsistent results. The first case was Cook v Repatriation Commission [2000] FCA 1756 (decided on 7 December 2000). That was a matter in respect of a claim for osteoarthritis of the left and right knees. At the time of the primary decision, the relevant SoP was Instrument No.352 of 1995. This was replaced by Instrument No. 41 of 1998 in June 1998, prior to review by the AAT, which then applied the more recent instrument. The first point of appeal was that the AAT had incorrectly applied the later SoP. Weinberg J found at paragraphs 33 and 34 that:
"In the light of the judgments of Heerey J in Keeley v Repatriation Commission (1999) 30 AAR 48 and of the Full Court in Repatriation Commission v Keeley (2000) 98 FCR 108, it is clear that the AAT did not apply the correct SoP when considering the applicant's claim. Thus was all but conceded by the respondent in the proceedings before me. The AAT should have applied the SoP which was in force at the time the Commission made its decision in September 1996. That SoP was that contained in Instrument No. 352 of 1995.
"Although the respondent formally submitted that the decision of the Full Court in Keeley was erroneous, and informed me that an application for special leave to appeal against that decision was to be heard in the near future by the High Court, the respondent accepted that I was bound to follow that decision. On 28 November 2000, after this application was argued before me, the High Court refused special leave. It follows that I proceed upon the assumption that the AAT erred in applying the wrong SoP when considering the applicant's claim".
However, in paragraph 37 of his reasons for decision, Weinberg J held that the application of the incorrect SoP yielded no difference in result of any consequence. Indeed, if anything, the earlier SoP, which should have been applied, set a higher hurdle than the later SoP which was applied.
"37. I accept the respondent's submission that there is no difference of any consequence between the SoP which the AAT applied, and that which it should have applied. If anything, the SoP which should have been applied would have created a greater hurdle for the applicant to overcome than the SoP which was applied. The SoP which should have been applied includes as a factor which must be present the existence of "swelling" (and possibly "acute symptoms and signs of ... swelling"). That factor is not, however, required under the SoP which was applied. It is important to note that the applicant gave evidence before the AAT that he had no real recollection of any swelling (let alone any acute symptoms and signs of swelling). It follows that had the correct SoP been applied, the applicant would have failed to bring his case within the template. It also follows that the error of law which has been established does not give rise to any entitlement on the part of the applicant to the relief which is sought."

In the Tribunal's view, this means that Weinberg J's views were obiter dicta in the Cook case (supra) and may not be binding.
The next Federal Court authority was Repatriation Commission v Walters [2001] FCA 228 (decided on 13 March 2001) which dealt with a scenario involving a SoP that was in place at the time of the primary decision being replaced by a SoP that set a higher hurdle that was in force by the date of the Tribunal decision. This case involved essentially a re-run of the scenario in Keeley (supra). It was no surprise that Cooper J, one of the judges in Keeley (supra) held that the earlier SoP was the correct SoP to apply.
On 21 March 2001 Stone J handed down her decision in Gorton v Repatriation Commission [2001] FCA 286. An issue in that case was whether the applicant's case was supported by Instrument No. 83 of 1995 and, if it was not, could the case fall within Instrument No. 64 of 1998 and Instrument No. 25 of 1999. All of these instruments dealt with hypertension. All instruments included a factor relating to the consumption of alcohol at a certain level. The level described in the more recent instruments was easier to satisfy than that specified in the 1995 instrument. The applicant had not argued in the Tribunal that the later instruments should be applied. However, this was successfully argued at the Federal Court. Stone J wrote in paragraphs 21-24:
"21 For the purpose of this discussion, I will assume, though I am not in the position to decide, that the situation here is the opposite of that considered by the court in Keeley; that is, that the later Statement of Principles is more favourable. On that assumption, the question is whether the AAT may or should apply the more favourable Statement. This question has been raised, but not been necessary to answer, in at least two recent cases. In Arnott v Repatriation Commission [2001] FCA 262, decided on 16 March 2001, a Full Court held the same outcome would be reached whichever Statement applied. In Harris v Repatriation Commission [2000] FCA 1687, a Full Court refused to allow this question to be raised for the first time on appeal. Unfortunately, I do not have the luxury of avoiding this issue. It is not possible for me to conclude that the outcome of this case would be the same whichever Statement of Principles applied.
"22 Although on this question Keeley provides no authority, it does provide some guidance. It is useful to set out comments made in Keeley by Lee and Cooper JJ at [44] immediately before the comments quoted above:
The terms of s120A(2) show a clear intention by Parliament that such a Statement is to "affect" the accrued right obtained by the lodgment of a claim under the Act to have the claim decided by the Commission. It is plain that by postponing a right to have a claim decided until a Statement has been determined, Parliament intended that the decision, and therefore the right to have a decision made, may be affected by a Statement determined under s 196B and that a pending claim is to be decided by application of the Statement when determined.
However, that circumstance does not apply after a claim has been determined and the right that has accrued under the Act is a right to have the determination reviewed. The Act is silent about the effect upon such an accrued right of the revocation of a Statement and determination of another Statement under s 196B(8)(c). It is significant that there is no provision equivalent to s 120A(2) where the Authority is carrying out an investigation under s 196B(7) preparatory to deciding whether to revoke a Statement and determine another Statement under s 196B(8).
"23 In this passage, their Honours distinguish between the situation which exists before a claim has been initially determined and after it has been determined. Their Honours note that the Act is silent on the effect of the revocation of a Statement and the determination of another Statement after the initial determination of a claim. In my opinion, it is not necessary where the later statement of principles is more beneficial, to rely on the reasoning that led the Court in Keeley to lean towards applying the earlier (and more beneficial) Statement of Principles. In particular, the decision in Keeley was based, in part, on the view that, with beneficial legislation such as the Act, a construction of substantive provisions least likely to cause unfairness is to be preferred. The decision in Keeley is not authority for the principle that, when choosing among current or revoked statements, the revoked statement is the one that applies. The Act provides in s 196B(7) and (8) for the continual updating of Statements of Principle so that current statements embody sound medical-scientific evidence against which claims are assessed. In providing for the Board to review decisions of the Repatriation Commission on the merits taking into account not only material considered by the Commission but also additional evidence, the Act evinces an intention for the claim to be assessed in the light of all available evidence, including medico-legal evidence as embodied in the most recent Statement of Principles; ss 138 and 139. The AAT also has the duty to review decisions of the Board on the merits and conduct a complete rehearing of the claim. As Bowen CJ and Deane J commented in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 in relation to appeals to the AAT,
'The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.'
"24 The decision of the Court in Keeley can thus be seen as an exception to this position, dictated by the beneficial nature of the legislat[ion] to which the Court referred. The exception applies to preserve the benefit of an existing entitlement to be assessed in the context of a more favourable Statement of Principles. In my opinion, the AAT is obliged to consider the applicant's claim in the context of the Statement of Principles No 25 of 1999 unless Instrument 83 is more favourable. If the latter position is the case, then the applicant's claim must be considered in the context of Instrument 83."

Stone J regarded herself as compelled to decide this question in the Gorton case (supra). Her assessment could therefore be regarded as part of the ratio decidendi of the case and binding. However, in view of other findings she makes as to the correct interpretation of Instrument No. 83 of 1995, it is doubtful that the finding on the applicable SoP was in fact essential to her decision. In paragraph 27 Stone J finds that the Tribunal was in error in its interpretation of the SoP and remits the case to the Tribunal for further consideration according to law on that point alone. Her opinion on the applicable SoP is, therefore, obiter and of no greater weight than Weinberg J's contrary view.
Drummond J, in Repatriation Commission v Thompson [2001] FCA 341, made statements in paragraph 13 of his decision that were very definitely obiter dicta and were in accordance with the views of Weinberg J. Thompson (supra) was a case where there was no SoP in force at the time of the making of the original decision. A SoP had been promulgated by the time of the Tribunal decision. In paragraph 13 he said:
"I have difficulty with some of what was said by the majority in Keeley. Since legislative changes are prima facie to be taken as universally neutral in not affecting either accrued rights or accrued liabilities, I doubt that the fact that a change made in the statute law which is beneficial to a person claiming a right justifies departure from the prima facie rule since that change will, of necessity, be detrimental to the correlative liability of the person against whom the right is asserted. Cf Doro v Victorian Railways Commissioners [1960] VR 84 at 86. I think for the reasons given by Emmett J that changes made with respect to a Statement of Principles after the Commission's determination which are more favourable to the pension claimant than the earlier Statement are accommodated within s 31 the Veterans' Entitlements Act, rather than within a legislative intent identified in Keeley that review of a Commission determination should be in accordance with the most beneficial Statement of Principles in force at any time, if the majority in Keeley intended their comments at [46] to go that far. But I do not think there is justification for declining to apply the critical holding in that case to an accrued right to have a Commission decision on a pension claim reviewed in accordance with the law, including any Statement of Principles, in force when the application for review was made, then arises."

The legal position that seems to have been dictated by this survey of the views of the Federal Court is that the better view is that the SoP in force at the date of the original decision by the Repatriation Commission should continue to apply even if a later SoP more beneficial to a veteran is promulgated. It is possible that the Court will decide that Stone J's views are preferable when it is called on to decide this issue definitively. This might follow in part because the Act is beneficial legislation. However, at present the indications from the Federal Court are that it is marginally more likely to favour the approach promoted by Weinberg and Drummond JJ as discussed above.
SoP 95 of 1995 requires that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate or death from malignant neoplasm of the prostate with the circumstances of the service, are:
(a)being exposed to herbicides in Vietnam; or
(b)inability to obtain appropriate clinical management for the malignant neoplasm of the prostate.
There is no evidence to suggest that a reasonable hypothesis could be raised against either criteria. Further, as already noted, both parties conceded that the circumstances of the veteran would not meet the instrument. As to the theory postulated by Dr Learoyd in respect of the contribution of renal surgery and endoscopic procedures to the causal relationship between prostate cancer and war service, the Statement of Principles does not acknowledge this theory, and hence it has not been further considered by the Tribunal. In the circumstances, the Tribunal therefore does not address the issues relating to the consumption of animal fats.
The decision under review must be affirmed.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Rear Admiral A R Horton, AO, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  24, 25 October 2000
Date of Decision  29 May 2001
Solicitor for the Applicant  Dibbs, Barker Gosling, Solicitors
Counsel for the Applicant  Mr M Vincent
Representative of the Respondent          Ms G Pacey