Merrell & Ors and Repatriation Commission

CATCHWORDS – REPATRIATION COMMISSION – widow's and veteran's pensions – fifty-three applications – whether malignant neoplasm of the prostate as suffered by each of the fifty-three veterans was war-caused within the meaning of the Veterans Entitlements Acts 1986 – which statements of principle (SoP) to apply – reference to principles to be applied in determining the applicable SoP in a particular application – Commission's decision to be reviewed on the basis of state of affairs at the time of its decision – SoPs 95 and 96 to apply.

Acts Interpretation Act 1901 ss. 8, 4, 6, 46A, 48, 48A, 49, 50
Administrative Appeals Tribunal Act 1975 – s- 42A(1B)
Veterans' Entitlements Act 1986 ss. 5AB, 8, 9, 13(1), 14, 17(2), 18(1), 19, 20, 31, 120, 120A, 120B, 135, 157, 175, 177, 196, 196B, 196C, 196D, 196E, 196G, 196W, 196Y, 196Z
Arnott v Repatriation Commission [2001] FCA 262 (Unreported, Spender, Marshall, and Merkel JJ, 16 March, 2001)
Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) 109 ALR 30; (1992) 66 ALJR 753; (1992) 29 ALD 1; (1992) 16 AAR 1
Byrnes v Repatriation Commission (1993) 177 CLR 564; (1993) 116 ALR 210; (1993) 67 ALJR 805; (1993) 30 ALD 1; (1993) 18 AAR 1
Deledio v Repatriation Commission (1997) 47 ALD 261; (1997) 25 AAR 396
Esber v The Commonwealth (1992) 174 CLR 430; (1992) 106 ALR 577; (1992) 66 ALJR 373; (1992) 15 AAR 249
Gartrell v Repatriation Commission [2000] FCA 1228 (Unreported, Whitlam, Lindgren and Gyles JJ, 9 August, 2000)
Gorton v Repatriation Commission [2001] FCA 286 (Unreported, Stone J, 21 March, 2001)
Kraljevich v Lake View and Star Ltd (1945) 70 CLR 647; (1945) 19 ALJR 325
Maxwell v Murphy (1957) 96 CLR 261; (1957) 64 ArgLR 231; (1957) 31 ALJR 143
Ogston and Repatriation Commission (1999) 86 FCR 578; (1999) 56 ALD 789; (1999) 29 AAR 89
Re Ogston and Repatriation Commission (1998) 52 ALD 392; (1998) 27 AAR 176
Reading and Repatriation Commission [2000] AATA 841 (Unreported, Deputy President Forgie, 20 September, 2000)
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Repatriation Commission v Keeley (2000) 98 FCR 108; (2000) 60 ALD 401; (2000) 31 AAR 150
Repatriation Commission v Smith (1987) 15 FCR 327; (1987) 74 ALR 537; (1987) 12 ALD 798; (1987) 7 AAR 17
Repatriation Commission v Thompson [2001] FCR 341 (Unreported, Drummond, Whitlam and Emmett JJ, 2 April, 2001)
Repatriation Commission v Walters [2001] FCA 228 (Unreported, Cooper J, 13 March, 2001)
Rodway v The Queen (1990) 169 CLR 515; (1990) 92 ALR 385; (1990) 64 ALJR 305; (1990) 47 CrimR 426
Symons and Repatriation Commission [2000] AATA 1049 (Unreported, Senior Member Lewis and Dr Lynch, Member, 28 November, 2000)
Symons v Repatriation Commission [2001] FCA 534 (Unreported, Lindgren J, 9 May, 2001)

DECISION AND REASONS FOR DECISION [2001] AATA 413

ADMINISTRATIVE APPEALS TRIBUNAL) Q1997/894;Q1997/195;Q1996/1017
) Q1997/58;Q1997/280;Q1997/453
VETERANS' APPEALS DIVISION ) Q1997/486;Q1997/509;Q1997/523

Q1997/592;Q1997/593;Q1997/594Q1997/595;Q1997/598;Q1997/599Q1997/600;Q1997/601;Q1997/609Q1997/610;Q1997/612;Q1997/613 Q1997/614;Q1997/627;Q1997/630Q 1997/634;Q1997/644;Q1997/677
Q1997/679;Q1997/680;Q1997/682Q1997/676;Q1997/775;Q1997/777Q1997/780;Q1997/781;Q1997/774Q1997/683;Q1997/684;Q1997/689Q1997/690;Q1997/772;Q1997/648Q1997/649;Q1997/788;Q1997/799Q1997/803;Q1997/829;Q1997/887Q1998/30;Q1997/890;Q1997/942;Q1997/965
Q1997/968

Re ANNIE MARY MERRELL & ORS

Applicant

AndREPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss S A Forgie (Deputy President)

Date 17 May, 2001

Place Brisbane

DecisionThe Tribunal decides that:
1.the respondent's decision in each of the forty eight applications based on the veteran's operational service is to be reviewed on the basis that the SoP in effect at the time the Commission made its decision (i.e. SoP 95) applies; and
2.the respondent's decision in each of the five applications based on the veteran's eligible war service is to be reviewed on the basis that the SoP in effect at the time the Commission made its decision (i.e. SoP 96) applies.
S A FORGIE
Deputy President

REASONS FOR DECISION

Fifty eight applications were listed for hearing to determine the Statement of Principles to be applied by the Tribunal in reviewing determinations made by the respondent, the Repatriation Commission ("Commission"), in relation to claims requiring a consideration of whether malignant neoplasm of the prostate ("prostate cancer") suffered by each of fifty eight veterans was war-caused within the meaning of the Veterans' Entitlements Act 1986 ("Act"). In all but two of the matters, the claim lodged with the Commission was made by the widow of a veteran whose death has been attributed to prostate cancer. Each of the widows has sought a pension pursuant to s. 13(1) of the Act on the basis that her late husband's death was war-caused. In the remaining two matters, the claims were made by veterans who are seeking a pension under s. 13(1) on the basis that they have become incapacitated from a war-caused injury. Since the matter came on for hearing, five applicants, Mrs Chadwick (Q1997/596), Mrs Woodrow (Q1997/643), Mrs Shaw (Q1997/800), Mr Harding (Q1998/102) and Mrs Moore (1997/681) have withdrawn their applications and, as a consequence of the operation of s. 42A(1B) of the Administrative Appeals Tribunal Act 1975 ("AAT Act"), their applications are taken to have been dismissed.

THE ISSUE

The issue in this case is to determine the Statement of Principle ("SoP") to be applied in determining each of the remaining fifty three applications. The applications may be grouped according to the nature of the service rendered by the veteran and according to the dates on which review was sought in the Veterans' Review Board ("VRB"). In view of the differences among the groups and in view of the submission made by Mr O'Gorman of counsel on behalf of the applicants, I do not propose to answer this question by reference to particular SoPs but by reference to the principles to be applied in determining the SoP to be applied in a particular application.

BACKGROUND

The fifty three applications

Of the remaining fifty three applications, forty eight arise as a result of operational service rendered by the veteran and the remaining five applications arise as a result of eligible war service rendered by the veteran. The effect of the Act is that different standards of proof apply according to whether a veteran has rendered operational service or eligible war service and that is so regardless of whether the claim for a pension has been made by the veteran or the widow of a veteran. In the case of operational service, the standard is that set out in ss. 120(1) and (3) and is commonly described as the "reasonable hypothesis test". In the case of eligible war service, the standard of proof is that of "reasonable satisfaction" as provided by s. 120(4) ("reasonable satisfaction test").

In so far as forty six applicants of the forty eight applicants relying on operational service are concerned, the SoP in force at the time the Commission made its decisions remained the same when they lodged their applications in the VRB. In the case of the two remaining applications, it had been amended before they lodged their applications in the VRB. When all forty nine applicants had lodged their applications for review in the Tribunal, the relevant SoP had been revoked and replaced by another (see paragraphs 24-27 below).

In so far as the five applicants relying on eligible war service are concerned, the SoP in force at the time the Commission made its decisions continued to be the SoP in force at the time each lodged his or her application in the VRB. After all five applicants had lodged their applications for review in the Tribunal, the relevant SoP was revoked and replaced by another (see paragraphs 28-30 below).

The legislative framework

A claim for a pension is made in accordance with s. 14 of the Act. Once made, the Secretary of the Department of Veterans' Affairs ("Department") is required to initiate an investigation into the matters to which the claim or application relates (s. 17(1)). Once that investigation is completed, the claim, together with any evidence furnished by the applicant and any evidence or documents held by the Department, is sent to the Commission (ss. 17(2) and (3)). In considering a claim, it is the Commission's duty to satisfy itself with respect to, or to determine, all matters relevant to the determination of the claim (s. 18(1)). The manner in which the Commission is to determine a claim is set out in s. 19. Where a claim is granted, there remains the question of the date from which a pension will be payable. That is the subject of s. 20 that provides, in essence, that the Commission may approve payment of a pension from and including a date not earlier than three months before the date on which the claim for a pension was received at an office of the Department.

The Commission's determination may be reviewed by the VRB (s. 135) and, if either the claimant or the Commission is dissatisfied with the VRB's decision, by the Tribunal (s. 175). Should either the VRB or the Tribunal make a decision granting a pension, the date from which that pension is payable is determined by reference to ss. 157 and 177 respectively. The effect of those sections is that the date the VRB or the Tribunal may fix must have regard to whether the claimant for the pension applied for review within the time limits specified for each review body.

Turning to the determination of a claim for a pension, there is a difference between claims lodged before, and those lodged after, 1 June, 1994. In relation to claims made on or after 1 June, 1994, the reasonableness of any hypothesis and whether or not a state of reasonable satisfaction has been achieved is to be assessed by reference to SoPs. That must be done in accordance with s. 120A in relation to reasonable hypothesis and s. 120B in relation to reasonable satisfaction.

In so far as it is relevant, s. 120A(3) provides in relation to a reasonable hypothesis that:

"For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) ...;
(b)...
that upholds the hypothesis."

Section 120A(4) provides that s. 120A(3) does not apply if the Repatriation Medical Authority ("RMA") has neither determined a SOP under s. 196B(2) nor declared that it does not propose to make such a SOP in respect of the kind of injury or disease suffered by the person or death met by the person. Where, however, the RMA has given notice that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission may not determine a claim in respect of either incapacity or death (s. 120A(2)). It may only do so when the RMA has either determined a SoP under s. 196B(2) or has declared that it does not propose to do so (ss. 120A(2)(a) and (b)).

When assessing a claim by reference to reasonable satisfaction in s. 120(4), s. 120B(3) provides that:

"In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); …
(ii)…;

that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service."

This provision adopts the interpretation of the expression "reasonable satisfaction" adopted by the Full Court of the Federal Court in Repatriation Commission v Smith (1987) 15 FCR 327 (Northrop, Beaumont and Spender JJ). That is to say, that it equates with the civil standard of proof which may be expressed as "the balance of probabilities" (page 335, per Beaumont J).

Section 120B(4) provides that s. 120B(3) does not apply if the RMA has neither determined a SOP under s. 196B(3) nor declared that it does not propose to make such a SOP in respect of the kind of injury or disease suffered by the person or death met by the person. Where, however, the RMA has given notice that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission may not determine a claim in respect of either incapacity or death (s. 120B(2)). It may only do so when the RMA has either determined a SoP under s. 196B(3) or has declared that it does not propose to do so (ss. 120B(2)(a) and (b)).

The RMA must prepare a SOP in situations prescribed in the Act. The effect of s. 196B is that it sets out the circumstances in which the RMA must determine a SoP in relation to claims to be assessed according to ss. 120(1) and (3) on the one hand and s. 120(4) on the other. As these sections set out similar principles, I will set out only those relating to the reasonable hypothesis test:

"If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; …
(b)…
(c)…

the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service." (s. 196B(2) and see s. 196B(3) regarding the reasonable satisfaction test)

Section 196B(14) defines the concept of "related to service" in terms consistent with those used in s. 9 for the definitions of "war-caused injury" and "war-caused disease" and of "war-caused death" in s. 8. In so far as this case is concerned, only s. 196B(14)(b) is relevant. It provides that:

"A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)…
(b)it arose out of, or was attributable to, that service;"

"Sound medical scientific evidence" has the meaning given in s. 5AB(2)
(s. 5AB(1)):

"Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if:
(a)the information:
(i)is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or
(ii)in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and

(b)in the case of information about how that kind of injury, disease or death may be caused - meets the applicable criteria for assessing causation currently applied in the field of epidemiology." (s. 5AB(2))

How does the RMA decide whether it should come to a view about a particular kind of injury, disease or death and determine a SoP? This question may be answered by reference to ss. 196E and 196B(4). If the RMA receives a request from a person or body specified in s. 196E(1) to carry out an investigation in respect of a particular kind of injury, disease or death, it must do so (s. 196B(4)(a) and s. 196E(1)(d)). Its investigation is conducted in order to obtain information that would enable the Authority to establish how the injury may be suffered, the disease may be contracted or the death may occur and the extent, if any, to which the injury, disease or death may, in the circumstances of this case, be war-caused (s. 196B(4)(c) and (d)). Those persons or bodies entitled to make a request under s. 196E are the Commission, a person eligible to make claim for a pension under Part II or IV or any organisation representing, in the circumstances of this case, veterans or their dependants (s. 196E(1)(a), (b) and (c)). The RMA may also decide of its own initiative that a particular kind of injury, disease or death ought to be investigated to find out whether a SoP may be determined in respect of it (s. 196B(4)(b)).

Whether the investigation arises as a result of a request or on its own initiative, the RMA must publish a notice in the Government Gazette that it is carrying out that investigation and inviting interested persons or organisations authorised to make written submissions under s. 196F(1) to do so (s. 196G(1)). The Authority must determine a SoP in respect of an injury, disease or death as soon as possible after carrying out the investigation if it is of the view that there is sound medical-scientific evidence on which it can rely to determine a SoP under ss. 196B(2) or (3) (s. 196B(5)) or if that evidence is insufficient to allow it to do so, the RMA must state in writing that it does not propose to make a SoP and give reasons for its decision (s. 196B(6)).

A SoP may be reviewed by the RMA in certain circumstances as may a decision that it does not propose to make a SoP. A person or body specified in s. 196E may ask it to do so or the RMA may do so if it thinks that there are grounds for such a review. It may also be directed by the Specialist Medical Review Council ("Review Council") under s. 196W(7) to do so (s. 196B(7)). If it decides of its own accord or receives a request or direction, the Authority must, subject to certain provisos set out in s. 196C(4) in relation to a request from a person or body specified in s. 196E, carry out an investigation to find out if there is new information. That new information must, in the circumstances of this case, relate to how the injury may be suffered, the disease may be contracted or the death may occur, or the extent to which the disease, injury or death may be war-caused (s. 196B(7)(d) and (e)).

If, after the investigation, the RMA is of the view that there is a new body of sound medical-scientific evidence that, together with that body of evidence it had previously considered, justifies the making of a SoP, or an amendment of a SoP, the Authority must determine a SoP, amend a SoP or revoke the SoP and determine a new SoP in respect of the particular kind of injury, disease or death under consideration (s. 196B(8)). Should the RMA be of the view after the investigation, that there is no such new body of sound medical-scientific evidence, or that the new evidence available is insufficient to justify the making of a SoP or amending a SoP, it must make a written declaration, supported by reasons, that it does not propose to make a SoP or amend an existing SoP (s. 196B(9)).

If the Review Council directs the RMA to make a SoP or amend a SoP, it must do so (ss. 196(10), (11) and (12)). Those persons who may request the RMA to make a SoP may also request the Review Council to review the contents of a SoP or the RMA's decision to determine not to make a SoP (s. 196Y) or to review the RMA's decision not to carry out an investigation (s. 196Z).

Once made, a SoP is a disallowable instrument for the purposes of s. 46A of the Acts Interpretation Act 1901 ("AI Act") (s. 196D). Section 46A provides that ss. 48, 48A, 48B, 49 and 50 apply in relation to the instrument as if, among other matters, references to regulations were references to the instrument, references to a regulation were references to a provision of the instrument and references to repeal were references to revocation (ss. 46A(1)(a)(i), (ii) and (iii)). Only s. 50 of the AI Act is relevant in the context of this case. It provides that:

"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 repeal:
(a)affect any right, privilege, obligation or liability acquired, accrued or incurred under any regulations so repealed; or
(b)affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any regulations so repealed; or
(c)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act or regulations had not been passed or made."

The authorities regarding the application of the reasonable hypothesis test

The manner in which the provisions of ss. 120(1) and (3) inter-related prior to the introduction of SoPs was considered by the High Court in the cases of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564. The SoPs were introduced after the High Court's judgement had been handed down. The manner in which ss. 120(1) and (3) inter-relate with the provisions of a SOP was considered by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261. An appeal from his judgement was dismissed by the Full Court of the Federal Court (Repatriation Commission v Deledio (1998) 83 FCR 82, Beaumont, Hill and O'Connor JJ). After considering the structure of the Act and its various amendments and the judgements of the High Court in Bushell v Repatriation Commission and Byrnes v Repatriation Commission, his Honour concluded:

"Therefore when s 196B(2) says a factor 'must ... exist' and 'must be related to service', it is not interfering with the functions of ss 120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii)(since 1994) inconsistent with (not upheld by) an applicable SoP.

If the hypothesis is reasonable the claim will succeed unless:

(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.

At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact. For example, in the present case the factors in the SoP include 70 gm/day consumption for at least 20 years. As it happens there was no dispute in the present case that the veteran's intake in fact was of this order. But if the commission were to deny this, then s 120(1) requires the commission to prove beyond reasonable doubt that the veteran's intake was in fact less than the SoP level. Put another way, the SoP system does not have the effect that some of the facts relevant to a claim, viz those facts which coincide with factors set out in an SoP, have to be proved by the claimant. Such a view would be inconsistent with the retention of ss 120(1) and 120(3) in the face of the Baume committee's recommendations [in its report entitled "A Fair Go: Report on Compensation for Veterans and War Widows"]. Still less do the 1994 amendments have the effect, as happened in the present case, that the claimant has to prove all the facts raised by the hypothesis." (page 275)

In its judgement on appeal, the Full Court of the Federal Court summarised the course which must be followed in cases involving a SOP. It said:

"… we would restate the course which the Tribunal is to take in a case, such as the present, (that is, one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved." (pages 97-98)

Although these authorities were concerned with the interaction of ss. 120(1) and (3) and the SoPs, the principles they refer to are equally applicable to the interaction between the reasonable satisfaction test in s. 120(4) and the SoPs.

The Statements of Principle: claim based on operational service

At the time the Commission made its decisions on each of the forty eight claims based on the veteran's operational service, SoP 95 of 1995 ("SoP 95") was in force. That SoP was made on 8 March, 1995. It determined that the factors that must exist as a minimum and that must be related to the veteran's operational service before it can be said that a reasonable hypothesis has been raised connecting prostate cancer or death from prostate cancer with the circumstances of that service were:

"(a) being exposed to herbicides in Vietnam; or
(b)inability to obtain appropriate clinical management for the malignant neoplasm of the prostate." (paragraph 1)

At least one of those factors must relate to the service rendered by the veteran and, where the factor in paragraph 1(b) is relied upon, the person must satisfy the additional criteria set out in paragraph 3 of SoP 95.

In so far as the forty eight applications are concerned, it is common ground that none proposes a hypothesis that raises either of the factors specified in SoP 95. The claim in each of them was refused. Each veteran or widow applied to the VRB for review of the Commission's decision. At the time forty six of them lodged that application with the VRB, SoP 95 continued in force. By the time the remaining two had lodged the application, SoP 95 had been amended by SoP 191 of 1996 ("SoP 191") with effect from 9 December, 1996. The two applications were those lodged by Mrs Eggar (Q1997/609) and Mrs Brinkley (Q1997/777).

The amendment effected by SoP 191 added a new factor while retaining the original two factors. That factor was:

"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." (paragraph 1(b))

The expression "animal fat" was defined to mean:

"… fat contained in or derived from:
(a)beef, veal, pork, mutton or lamb or offal which may be in any form, for example, main dish, sandwich or mixed dish; in preserved meats, ham, frankfurters, sausages, salami, bologna, deli meat items, lard and bacon; and
(b)dairy products, for example: milk, cream, sour cream, sherbet or ice milk, icecream, yogurt, cottage cheese, ricotta cheese, cream cheese, other cheese and butter." (paragraph 4)

As before, at least one of the three factors specified in paragraph 1 of SoP 95 as amended by SoP 191 must relate to the service rendered by the veteran (paragraph 2).

SoP 95 as amended by SoP 191 did not recognise fat derived from birds, game or fish. On 9 November, 1999, SoP 95 as amended by SoP 191 was revoked and replaced by SoP 84 of 1999 ("SoP 84"). By this time, each of the forty eight applications had been lodged in this Tribunal. SoP 84 recast and expanded upon the factors that must exist as a minimum. In so far as this case is concerned, only that relating to the consumption of fat is of interest. That remained cast in similar terms to those previously adopted (paragraph 5(c)) but the expression "animal fat" has now been defined to mean "… fat contained in or derived from meat, other flesh or offal from animals (including birds), and dairy products" (paragraph 8).

The Statements of Principle: claim based on eligible war service

At the time the Commission made its decisions on each of the five claims based on the veteran's eligible war service, SoP 96 of 1995 ("SoP 96") was in force. That SoP was made on 8 March, 1995. It determined that the factor that must exist as a minimum and that must be related to the veteran's eligible war service before it can be said that, on the balance of probabilities, prostate cancer or death from prostate cancer is connected with the circumstances of that service, was the veteran's inability to obtain appropriate clinical management for the prostate cancer (paragraph 1). That factor must relate to the service rendered by the veteran and must satisfy the additional criteria set out in paragraph 3 of SoP 96 (paragraph 2).

In so far as the five applications are concerned, it is common ground that none relies on the factor specified in SoP 96. The claim in each of them was refused. Each veteran or widow applied to the VRB for review of the Commission's decision. There then followed an amendment of SoP 96 by SoP 192 of 1996 ("SoP 192") with effect from 9 December, 1996. It introduced the factor of an increased consumption in animal fat in the context of the reasonable satisfaction test. It did so in terms consistent with those used in SoP 191 to introduce that factor into the reasonable hypothesis test. However, rather than requiring that the increased consumption have persisted for twenty years as in the case of SoP 191, SoP 192 required that it persist for twenty five years.

SoP 96 and SoP 192 were also revoked by the RMA as had happened with SoP 95 and SoP 191. This happened with effect from 9 November, 1999 when the RMA determined SoP 85 of 1999. By this time, all five applicants had lodged their applications for review in this Tribunal. SoP 85 also recognised a factor relating to an increased consumption of animal fat and mirrored the factor previously determined in SoP 192. As with SoP 84, SoP 85 altered the definition of "animal fat" to mean "… fat contained in, or derived from meat, other flesh or offal from animals (including birds), and dairy products" (paragraph 8).

CONSIDERATION

In Reading and Repatriation Commission [2000] AATA 841 (20 September, 2000), I considered similar issues but in a slightly different context. Since then, a number of cases in the Federal Court have considered the vexed question of the appropriate SoP to apply when the relevant SoP has been varied or revoked and replaced at various times after the lodgement of a claim for a pension. As I am bound by the judgements of the Federal Court, I no longer feel free to consider the issues in quite the same way as I did in Reading. Consequently, I will briefly set out several of the significant cases showing the history of the consideration of this matter in the Federal Court. As Mr O'Gorman submitted that each of the fifty five applications should be determined by reference to the SoP most beneficial to each applicant, regardless of when that SoP was determined in the course of the decision-making and review processes in relation to each, I have arranged the cases according to their relevance to a favourable outcome, or otherwise, to the applicant. Whether or not categorisation by reference to the outcome is a legitimate manner in which to consider the cases is a matter to which I will return.

SoP first made after date claim lodged but prior to Commission's determination

In Re Ogston and Repatriation Commission (1998) 52 ALD 392, Mrs Ogston had claimed a war widow's pension after 1 June, 1994 but, at that time, the RMA had not made a SoP in relation to the disease from which her husband had died. A relevant SoP was made after the lodgement of the claim but before the Commission made its determination. The Commission then applied it in refusing her claim. As President of the Tribunal, Mathews J stated that the question for her to decide was:

"… whether, consideration of the claim having been deferred under s 120A(2), and an SoP in relation to that injury or disease having subsequently been determined, the decision-maker is then required to apply that SoP, even if it operates disadvantageously to the claimant." (page 401)

An appeal against that decision was dismissed (Ogston v Repatriation Commission ((1999) 86 FCR 578, Burchett, Branson and RD Nicholson JJ). The Full Court of the Federal Court concluded that Mathews J had been correct and continued:

"…First, s 120A(1) declares that it applies to claims of the type referred to therein 'made on or after 1 June 1994'. Secondly, and even more tellingly, s 120A(2) requires the Commission in certain circumstances not to determine a claim unless or until the Authority has either determined a relevant Statement of Principles or declared that it does not propose to make such a Statement of Principles. There could be no point in the Commission delaying its determination of a claim as required by s 120A(2) unless, assuming a relevant Statement of Principles was ultimately determined, s 120A(3) was to have an operation in respect of the Commission's determination of the claim." (page 93)

It found s. 8 of the AI Act to be inapplicable as there had been no repeal of the Act, either in whole or in part, by another. With regard to ss. 4, 6 and 50 of that legislation, it concluded that they were subject to a contrary intention being shown in the Act. That contrary intention had been shown unambiguously in s. 120A of the Act. It rejected a contention that Mrs Ogston had a right to have her claim determined by reference to the law in operation on the day she lodged her claim. Upon making her claim, she gained a vested right to receive a pension if her husband's death was war-caused but had no right to have that claim determined by any particular procedure or to be able to vindicate her claim in any particular way. Their Honours referred to Rodway v The Queen (1990) 169 CLR 515. A subsequent application for special leave to appeal to the High Court was refused.

The Full Court of the Federal Court considered both the Ogston case and the subsequent case of Repatriation Commission v Keeley [2000] 98 FCR 108; 60 ALD 401; 31 AAR 150, Lee, Cooper and Kiefel JJ) (see paragraphs 38-46 below) in Gartrell v Repatriation Commission [2000] FCA 1228 (Unreported, Whitlam, Lindgren and Gyles JJ, 9 August 2000). The facts in the Gartrell case mirrored those in Ogston in that no SoP was applicable to the claim at the date it was lodged but a SoP was subsequently made before a decision was made on the claim. The SoP had the effect of negating a reasonable hypothesis that Mr Gartrell's claimed disability was service related. The Full Court reached the same conclusion as that reached in Ogston. The decision had to be reviewed in light of the SoP that had been made after the date of the claim and before the decision was made.

The Full Court agreed that Ogston could not be distinguished even though in Gartrell there had been more than one (rather than only one as in Ogston) SoP made since 1 June, 1994 and made after Mr Gartrell lodged his claim. Each of the SoPs had the effect of defeating his claim. Even though there was no SoP made at the time the claim was lodged and only came into existence before the Commission made its determination, the issue in Keeley, the Full Court observed, was different from that in Ogston. It was whether, if a SoP does not deny a claim and is then revoked and replaced by a SoP that does, the claim must be considered according to the first rather than the later SoP. That question did not arise in Gartrell. With regard to Keeley, their Honours noted that:
"…The starting point of the judgment in Keeley is that the first Statement of Principles did bind – indeed, gave rise to an accrued right. That is directly contrary to the present submission of the current appellant. This, no doubt, explains why it is that Lee and Cooper JJ in Keeley did not refer to Ogston at all. Ogston was cited by Kiefel J in support of the proposition that the first Statement of Principles applied." (paragraph 5)

The Full Court later said:
"We recognise, of course, that there may be difficulty in reconciling all of the reasoning in the judgments in Keeley with all of the reasoning of the judgment in Ogston. That is not the concern of this Court in these proceedings. That will arise when, and if, the correctness of the decision in Keeley becomes necessary to decide in another case." (paragraph 7)

SoP made after Commission's determination and before review less favourable to applicant than the SoP made at date of Commission's determination

The issue of whether the SoP taken into account by the Commission or a subsequent SoP should be taken into account in the review by the Tribunal was considered by the Full Court of the Federal Court in Keeley. Arguably, the SoP in force at the time the Commission made its determination and when that determination was affirmed by the VRB upheld an hypothesis linking the late Mr Keeley's death with his operational service. By the time the decision was reviewed by the Tribunal, that SoP had been replaced by a further SoP. It was common ground between the parties that the hypothesis was not consistent with that SoP. The Court concluded that the SoP in force at the time the Commission made its decision should be applied in subsequent reviews. An application for special leave to appeal against the Full Court's judgement was refused by the High Court.

The reasoning between Lee and Cooper JJ on the one hand and Kiefel J on the other differs. At the outset, Lee and Cooper JJ took the view that:

"When the respondent lodged her claim for a pension under the Act, the respondent obtained a right to have that claim determined under the Act according to law. The right accrued was a right to which s 50 applied: see Continental Liqueurs Pty Ltd v G F Heublein and Bro Inc (1960) 103 CLR 422 at 426-427, (on appeal G F Heublein & Bro Inc v Continental Liqueurs Pty Ltd (1962) 109 CLR 153.)" (pages 121; 413 and 163)

Their Honours continued to observe that:

"… The right to have the claim determined under, and pursuant to, the Act, therefore, was more than an expectation that a request for a remedy or benefit would be considered or a hope that a remedy or benefit may be provided if a discretion were exercised in her favour pursuant to a power provided under an enactment: see Director of Public Works v Ho Po Sang [1961] AC 901. If an enactment provides that the exercise of a discretion is subject to review and redetermination under review procedures to be conducted according to law, even a mere expectation or hope may become a right to have a matter determined under the enactment upon initiation of a review proceeding pursuant to the enactment in respect of a decision made in the exercise of a discretion: see Australian Coal & Shale Employees' Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161 at 175, 178, 185, 194; Colonial Sugar Refining Co Ltd v Irving [1905] AC 369 at 372-373; Lee v Secretary, Department of Social Security (1996) 68 FCR 491." (pages 121; 413-414 and 163)

Lee and Cooper JJ also considered that this approach was consistent with that adopted by the High Court in Esber v The Commonwealth (1992) 174 CLR 430). The majority of that Court (Mason CJ, Deane, Toohey and Gaudron JJ), they said, decided that:

"… a right to have a decision reconsidered and determined by the Tribunal was not merely a power to take advantage of an enactment nor a mere matter of procedure; it was a substantive right that may be said to have accrued under that enactment. It was implicit in the reasoning of their Honours that it was not necessary for such a right to accrue, that it be a right enforceable by reason of prior adjudication or determination." (pages 122; 414 and 163-164)

The question to be asked, Lee and Cooper JJ said, is whether a determination by the RMA under s. 196B affects any right that has accrued under the Act. They accepted that a provision that did no more than alter the provisions relating to the evidence in a proceeding may not affect a right to have a matter determined. Whether such a provision did affect that right was a matter of degree and also involved consideration of issues of justice (Maxwell v Murphy (1957) 96 CLR 261 at 267, per Dixon CJ). Should a provision be no more than procedural, it will be construed as having retrospective effect.

Lee and Cooper JJ analysed ss. 120A and 196B and concluded that those provisions involved more than alterations of a procedural character in that they purported to define the liability of the Commonwealth. They defined that liability by effectively confining the claim upon which a claimant may rely (Kraljevich v Lake View and Star Ltd (1945) 70 CLR 647 at 652, per Dixon J).

They then turned to consider whether ss. 120A and 196B affected any accrued rights. Section 196B, they concluded, did not alter the meaning of "war-caused" injury, disease or death as set out in ss. 8 and 9. Section 120A was a different matter:

" The terms of s 120A(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 by 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).

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 more beneficial to a claimant than the terms of 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 provided otherwise, a proceeding initiated under the Act to review a decision made by the Commission was to be carried out by 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. " (pages 123; 415 and 165)

Kiefel J considered the matter from a different point of view that is encapsulated in the following passage:

" In my view, the Statements of Principles operate generally as a bar or threshold test. The bar or limitation operates on the right to a pension itself because the Statements of Principles determine the connection between death and service as a minimum, in each case: see Maxwell v Murphy at 278. It cannot therefore be described as relating only to procedure: see Pederson v Young (1964) 110 CLR 162 at 169. The introduction of the second SoP affected the right to pension under s 13, as the first had.
From the time the first SoP came into effect, Mrs Keeley's right to a pension was defined specifically by the requirement that the circumstances of her husband's service involved his exposure in the course of his work to paints and/or lacquers before the clinical onset of multiple myeloma, and then more generally by the requirement that the condition be attributed to his service. Whilst she was required to prove or vindicate that right, it was one which was then held by her. The second SoP required more - that work as a painter had been undertaken for a minimum period or periods and that the condition onset within a certain time from cessation of exposure through that work. Any increase in the bar to the remedy could not in my view be regarded as procedural. It affected a substantive right: see Pedersen v Young at 169. The comparison is as between a provision limiting access to the courts for enforcement of a claim and one which destroys or impairs the basis upon which a remedy will be given (and see McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 41).

The repeal of the first SoP affected the content of Mrs Keeley's right. It follows, in my view, that s 50 of the Interpretation Act [Acts Interpretation Act 1901] operates, subject to the further question whether any intention to the contrary is disclosed by the second SoPs as the repealing provision." (pages 130-131; 422 and 172-173)

In considering whether a contrary indication had been disclosed, Kiefel J said:
" 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 connection. 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 Interpretation Act 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 virtually all amending or repealing legislation. Further, the need for consistency of decisions of lay tribunals is equally met by applying the SoP existing at the time of the primary decision. I respectfully agree." (pages 132; 423 and 173- 174)

In Arnott v Repatriation Commission [2001] FCA 262 (Unreported, Spender, Marshall, Merkel JJ, 16 March, 2001), the Full Court of the Federal Court considered whether a claim should be assessed by reference to the SoP in force at the time of the Tribunal's review or that in force when the Commission made its determination. Mr Arnott had submitted that the later SoP was more onerous than the earlier SoP and that the earlier SoP ought to have been applied. Merkel J, with whom Spender and Marshall JJ agreed, decided that it was unnecessary to decide whether the matter should be determined by reference to the earlier or the later SoP. His Honour adopted that view as the outcome of the appeal would be the same irrespective of which SoP was applicable. He then proceeded to determine it on grounds that existed as a minimum under both SoPs.

SoP made after Commission's determination and before review more favourable to applicant than the SoP made at date of Commission's determination

In Gorton v Repatriation Commission [2001] FCA 286, (Unreported, Stone J, 21 March, 2001) Stone J considered a situation in which the parties had agreed before the Tribunal that SoP 83 of 1995 ("SoP 83") in force at the date of the Commission's determination was the appropriate SoP to apply on review of that determination. The Commission had refused Mr Gorton's claim for a pension on the basis that his hypertension with left ventricular hypertrophy was not war-caused. After the Commission's determination, the RMA had made SoP 64 of 1998 ("SoP 64") and SoP 25 of 1999 ("SoP 25"). Despite the parties' agreement, Mr Gorton submitted that his claim should have been considered by reference to SoP 64 or SoP 25 rather than SoP 83.

Stone J considered that the case of Keeley provided guidance although no authority. She considered the joint judgement of Lee and Cooper JJ in that case, as in the passage I have set out above (see paragraph 44) and then said:

"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.'"

Her Honour then concluded that:

"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 legislature 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."

SoP made at time of Tribunal's decision no less favourable to applicant than SoP made at time of Commission's determination but less favourable to applicant than SoP in effect between date of Commission's determination and Tribunal's decision

In Symons v Repatriation Commission [2001] FCA 534 (Unreported, Lindgren J, 9 May, 2001), Lindgren J considered the SoPs relating to cervical spondylosis. At the time that the Commission made its determination on 11 June, 1996, the applicable SoP was SoP 102 of 1995 as amended by SoP 331 of 1995 and SoP 355 of 1995 ("the amended SoP 102"). After the determination and before Mr Symons lodged his application with the VRB on 11 April, 1997, the amended SoP 102 was revoked and replaced by SoP 162 of 1996. In the circumstances of Mr Symons' claim, SoP 162 was more favourable to him than the amended SoP 102. That was so because of variations in the definition of the expression "trauma to the cervical spine". SoP 162 continued in effect at the time the VRB made its decision and at the time Mr Symons lodged his application in the Tribunal. Before the Tribunal made its decision, however, SoP 162 had been amended by SoP 57 of 1998 ("SoP 57") and then both SoP 162 and SoP 57 were revoked and replaced by SoP 32 of 1999 ("SoP 32"). Both SoP 162 (as amended by SoP 57) and SoP 32 adopted the substance of the definition of "trauma to the cervical spine" appearing in the amended SoP 102. That was a definition less favourable to Mr Symons than that adopted in SoP 162.

In reaching its decision, the Tribunal applied the amended SoP 102 (Symons and Repatriation Commission [2000] AATA 1049, Unreported Senior Member Lewis and Dr Lynch, Member, 28 November, 2000). It did so on the basis that:

"…Applying the Full Court decision in Keeley, it is the Statements of Principles in place at the time of the primary decision that must be applied in the event of the Applicant seeking to rely on his accrued rights. …" (paragraph 82)

Lindgren J did not consider whether the Tribunal was correct in applying amended SoP 102 but rather whether it was correct in not applying SoP 162. He did so in addressing the ground of appeal that the Tribunal had erred in not applying SoP 162. His Honour decided that the Tribunal was correct in not applying SoP 162 as it was in effect prior to its amendment by SoP 57. In doing so, he referred to both the Keeley and Gorton cases:

" In my opinion, the Tribunal was correct not to apply the unamended Instrument No 162 of 1996. Neither Keeley nor Gorton required it to do so. Gorton did not so require because it was not the Statement of Principles in force when the Tribunal decided Mr Symons' application for review. Keeley did not so require because it was not operative either at the time of the lodgement by Mr Symons of his application for the pension on or about 5 September 1995 or at the time of the Commission's decision on that application on 11 June 1996, with the result that there is no scope for saying that Mr Symons had an 'accrued right' under the Act to have his claim determined in accordance with that Instrument." (paragraph 70)

Lindgren J considered that Mr Symons was not entitled to have the decision reviewed by reference to SoP 162 on the basis that it was the SoP in effect at the time of the VRB's decision. That was so because it was the determination of the Commission that was under review and not the decision of the VRB affirming the Commission's determination.

He also considered a further submission that the Tribunal should review the Commission's determination by reference to SoP 162. It was based on the premiss that it was the most favourable of any of the SoPs in effect at any time between the date of the Commission's decision to the date of the Tribunal. Lindgren J rejected this submission saying that:

"…As will be clear from what I have said above, in my view Gorton does not so require." (paragraph 71)

He also rejected the submission on the basis that Mr Symons had not identified any respect in which SoP 162 would have been more beneficial to him in its effect than the amended SoP 102. In order to be successful, it was not enough for Mr Symons to point to the variation in the definitions of the one expression. He must be able to point to a practical difference in the application of the two definitions to the facts of his case.

SoP in effect at date of Commission's determination revoked and replaced before Tribunal's decision but no indication whether one more favourable than the other to the applicant

In Repatriation Commission v Walters [2001] FCA 228 (Unreported, Cooper J, 13 March, 2001), Mrs Walters lodged her claim for a pension on the basis that her husband's death was caused by multiple myeloma and that it was war-caused within the meaning of the Act. At the time she lodged her claim on 8 August, 1995 and at the time the Commission determined that claim, SoP 1 of 1995 ("SoP 1") was in effect. By the time the Tribunal reviewed the Commission's determination, SoP 1 had been revoked and replaced by SoP 134 of 1996 ("SoP 134"). The parties agreed that the decision should be reviewed by reference to SoP 134 and the Tribunal adopted that course. On appeal, Cooper J took the view that this was incorrect and said:

"The effect of the decision of a Full Court of this Court in Repatriation Commission v Keeley (2000) 98 FCR 108, is that the review of the decision refusing the pension fell to be determined in accordance with SoP Instrument No 1 of 1995, and not the later SoP Instrument No 134 of 1996 which revoked and replaced the earlier 1995 SoP." (paragraph 11)

SoP first made after date of VRB's review of Commission's determination but before Tribunal's review

In Repatriation Commission v Thompson [2000] FCA 341 (Unreported, Drummond and Emmett JJ, Whitlam J dissenting, 2 April 2001), Mr Thompson lodged his claim for a pension on 10 April, 1995. He did so in relation to irritable bowel syndrome. As he had operational service, his claim attracted the application of s. 120A but, when the Commission made its determination on 29 June, 1995, the RMA had yet to make a SoP regarding the claimed condition. That continued to be the position when the VRB affirmed the Commission's determination on 29 March, 1996. By the time the application for review was heard at the Tribunal on 28 May, 1997, a SoP had been made by the RMA on 16 August, 1996. The Tribunal held that it should review the decision by reference to the SoP but, on appeal, the Federal Court decided that this approach involved an error of law. Madgwick J decided that when a claim has been made according to one set of legally relevant criteria and a right of review has been exercised on that basis, the substantive rules governing the claim should not be changed to the disadvantage of the claimant.

On appeal to the Full Court of the Federal Court, Drummond and Emmett JJ decided, in essence, that the decision of the Full Court in Keeley dictated the outcome of the appeal and dismissed the appeal. Whitlam J did not agree with that approach and decided instead that the Tribunal had been correct in applying the SoP.

The reasoning of Drummond J is encapsulated in the following paragraphs:

"8 The issue for decision here is whether a Statement of Principles issued for the first time after the determinations made by the Commission and then by the Review Board, but before the Tribunal decision was made, is, by force of s 120A(3), to govern determination by the Tribunal of the issue whether the condition the subject of the pension claim was 'war-caused'. In my opinion, Keeley does govern the present case because it establishes that upon making an application to the Tribunal for review of a determination by the Board, the pension claimant acquires an accrued right to have the Board's determination reviewed by the Tribunal in accordance with the law then in force.
9 As Whitlam J observes, the present case, unlike Keeley, is not concerned with the preservation of rights accrued under repealed legislation, to which s 50 the Acts Interpretation Act is alone directed. But, in Fisher v Hebburn Ltd (1960) 105 CLR 188, it was said at 194:
'... the general rule is that an amending enactment - or, for that matter, any enactment - is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts or events which occurred before its commencement.' (emphasis added)

10 The general principle of construction of both the common law and of provisions such as s 50 is that no Act, be it amending or repealing legislation or new legislation operating in an area for the first time, affects past facts or events upon which legal rights depend, unless a contrary intention appears in the statute. Section 50 states in statutory form the limb of this common law principle that applies to repealing enactments (which will include provisions in statutes in the form of amending legislation which are, however, inconsistent with provisions of the earlier Act: Mathieson v Burton (1971) 124 CLR 1 at 9 - 12 and at 20 - 22). It is the other limb of this same principle that applies to new enactments. Both limbs operate to prevent statutes that change the law from applying to facts or events that have already occurred and by reference to which legal rights or liabilities have to be determined, unless a contrary intention is discernible in the particular statute: Maxwell v Murphy (1957) 96 CLR 261 at 267.
11     In my opinion, Ogston v Repatriation Commission (1999) 86 FCR 578; [1999] FCA 342 does not go beyond holding that s 120A(2) stands in the way of any claim that a claimant for a pension acquires a right to have a determination by the Commission made in accordance with the law in force at the time the claim was made. Ogston was not concerned with the question of the law to be applied by the Board or the Tribunal where that differs from the law in force at the time of the Commission's determination.
12     Though appellant's counsel drew the Court's attention to the fact that there was at the time of the hearing an application pending before the High Court for special leave to appeal the decision in Keeley, it was not contended on behalf of the appellant that the majority decision in Keeley was wrong and should not be followed. It is an important principle that this Court should not decline to follow the decision of another Full Court unless it first concludes that the previous decision is 'clearly erroneous'; it would be wrong for one Court to decline to follow the decision of an earlier Full Court 'merely because the matter was one on which minds might differ'. See Transurban City Link Ltd v Allan (1999) 168 ALR 687 at 693 - 694; [1999] FCA 1723 at [29].
13     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 that 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."

Emmett J analysed the judgement of the majority in Keeley. His Honour noted that the majority had said that:

"48 … 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. Their Honours considered that an analysis of the provisions of ss 120A and 196B showed that those provisions involved more than alterations of a procedural character in that they purport to define the scope of liability of the Commonwealth under the Act by, in effect, confining the claim that a claimant may present..."

After setting out the effect of ss. 120A(2) and 196G, he continued:

"50 The majority in Keeley's Case accepted that the terms of s 120A(2) show a clear intention by Parliament that such a Statement of Principle is to 'affect' the accrued right obtained by the lodgment of a claim under the Act to have the claim decided by the Commission. By postponing a right to have a claim decided until a Statement of Principles has been determined, Parliament intended that the decision, and therefore the right to have a decision made, could be affected by a Statement of Principles and that a pending claim is to be decided by application of the Statement of Principles when determined: at [44].
51 However, the majority considered that 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 majority considered that it was 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). That was the circumstance under consideration in Keeley's Case. …"

Emmett J observed that it is clear from Keeley that the Commission's decision could be affected by a SoP made after the date the claim was made. It is possible that a SoP may affect an application beneficially. The mechanism provided by s. 31 of the Act recognises that possibility by permitting the Commission to review any decision before an application is made to the VRB or, if made, before it is reviewed (s. 31(1)). It is also recognised in a similar fashion by s. 31(2) where an application is made to the Tribunal and it has yet to be determined. Where the applicant agrees, the Commission may vary that decision after its review.

Once Mr Thompson had lodged an application in the Tribunal to review the VRB's decision, he had a right to have the decision of the Board reconsidered and determined by the Tribunal. It was not a mere matter of procedure, Emmett J said, but a substantive right and a right in existence at the time the SoP was published. Relying on Esber v The Commonwealth, Emmett J said that, in the absence of a contrary intention, the right was protected.

In so far as Keeley's case is concerned, it was involved with the revocation of a SoP and the determination of another. Despite its issue being limited to that, its reasoning was not so limited, Emmett J said, and later stated:

"65 Esber's Case was concerned with change in the law by statutory repeal. No such question arose in Keeley's Case. Nor does such a question arise in the present case. Nevertheless, the majority in Keeley's Case proceeded on the basis that the revocation of a Statement of Principles and determination of another Statement of Principles in its place was equivalent to the statutory repeal that was under consideration in Esber's Case. The determination of a Statement of Principles where there was previously none is not distinguishable from the circumstances that arose in Keeley's Case."

Emmett J considered Keeley and Ogston:

"67 The reasoning of the Full Court in Keeley's Case that there is a vested right to have the original decision reviewed on the basis of the state of affairs concerning Statements of Principles at the time when the original decision was made. In contrast, the Full Court in Ogston's Case held that an applicant had no vested right to have a claim determined on the basis of the state of affairs concerning Statements of Principles at the time of lodging the application."

His Honour then noted that no submission had been made on behalf of the Commission that the Court should not follow Keeley on the basis that it was wrongly decided. Instead, the Commission had submitted that Keeley should be distinguished on the basis that the language of s. 120A of the Act clearly abrogated the applicant's right to have the decision of the VRB reviewed on the basis that there was no applicable SoP. At the same time, the Commission did not submit that the Court should not follow Keeley in holding that:

"69 …there is a vested right to have the original decision reviewed on the basis of the state of affairs at the time of the original decision. It would follow that the Veteran had an accrued right to have the decision of the Board reviewed by the Tribunal on the basis that no Statement of Principles had been determined. Once that assumption is made, the reasoning in Keeley's Case governs the outcome of the present case. Without expressing any view one way or the other about the correctness of Keeley's Case, it is therefore appropriate to apply the reasoning in Keeley's Case to the present case."

Reconciliation of the cases

In view of the various Federal Court authorities, this is not a case in which I feel free to consider the matter afresh. Rather, I am bound by the Federal Court and its interpretation of the relevant provisions of the Act. As to precisely what that interpretation may be is a matter that has caused me some anxiety. My anxiety has focused particularly on the judgement of Stone J in Gorton on the one hand and the various judgements of the Full Court in Ogston and of the majority of the Full Court in Keeley and Thompson on the other.

On its face, the factual situation in Gorton mirrors that which I must consider. The SoP in force at the time at which I am to consider the matter may be more favourable to the applicants than the SoP in force at the time the Commission made its decisions. If I were to apply the principles in her Honour's judgement, it seems to me that I would have to decide that each of the fifty five applications would have to be considered in the light of each of the SoPs that applied at any time on or after the date of the Commission's decision. I would then have to direct that each of the Commission's decisions would need to be reviewed by reference to whichever SoP led to the most favourable outcome for each applicant. It would not be possible to nominate one SoP by reference to which all of the forty eight applications relying on operational service and one SoP by reference to which all five applications relying on eligible war service should be reviewed. That would be so even though forty eight decisions were made by the Commission on the basis of one SoP and five decisions were made on the basis of another.

Mr Hanks has submitted that Stone J's judgement, in so far as it concerns the selection of the applicable SoP, is obiter dicta. Although her Honour ultimately decided the appeal on the construction of terminology common to each of the SoPs that had related to Mr Gorton's condition at some time or other, it seems to me that her consideration of the selection of the applicable SoP must carry weight whether or not it was strictly necessary to decide the appeal.

At the same time, I am bound by the judgement of Cooper J in Walters. He paid no regard to whether one SoP was more beneficial to the applicant than another. He decided that it was the SoP in effect at the time of the Commission's determination that was to apply. On their face, it is difficult to reconcile the judgements in Gorton and Walters. Whether the judgement in Symons is consistent with Gorton or Walters is difficult to say. By addressing only the ground of appeal, Lindgren J had no need to address whether the Tribunal was correct in applying the SoP in effect at the time of the Commission's determination. It could be thought that, by implication, his Honour approved that approach and so applied the same principles as did Cooper J in Walters. At the same time, it needs to be noted that, in practical terms, the SoPs applicable at the time of the Commission's determination and at the time of the Tribunal's decision, although different, were in substance the same. There would have been no point in considering whether one was more beneficial than the other. Lindgren J's consideration of how an applicant may establish that one SoP is more beneficial than another suggests that, in other circumstances, he may have adopted the approach of Stone J in Gorton.

It follows that I am unable to reconcile the judgements in Gorton, Walters and Symons with each other. While I am able to reconcile the judgement in Walters with the judgements of the Full Court in Ogston, Keeley and Thompson, by which I am bound, I have been unable to reconcile that in Gorton with those judgements. Whether or not I can reconcile the judgement in Symons depends upon its proper interpretation.

Having read the judgements in all four cases decided by the Full Court, it seems to me that, whereas Stone J in Gorton determines the applicable SoP by reference to that which is most beneficial to an applicant at the date of the Tribunal's decision, the Full Court does not pay any regard to whether any particular SoP is or is not beneficial to an applicant. Although the reasoning differs from one Full Court to another and from one judge in the majority in Thompson to the other, it seems to me that there is a thread common to all. That thread is apparent in the following principles that can be drawn from the judgements in Ogston, Keeley and Thompson:

1.upon lodgement of a claim:
an applicant does not accrue a right to have that claim determined according to the state of affairs prevailing at the time that he or she lodges his or her claim (Ogston); and
an applicant does accrue a right to have that claim decided by the Commission (Keeley);

2.the applicant's right to have a claim decided by the Commission is affected by (and effectively postponed by):
a notice given by the RMA that it intends to carry out an investigation in respect of a particular kind of injury, disease or death (s. 120A(2) and Keeley);

3.in making its decision, the Commission must:
assess the claim by reference to any SoP that has been made at the time of its decision (Keeley);

4.an applicant accrues a right to have the Commission's decision reviewed by the VRB and then by the Tribunal (Keeley);

5.unless a contrary intention is clearly disclosed, the accrued right is determined under the law as it stood when the right accrued (i.e. when the Commission's decision was made) (Keeley and Thompson):

it is a prima facie rule that an accrued right or an accrued liability is not affected simply by virtue of the fact that there has been a legislative change (Thompson);
the fact that a later SoP is more beneficial to an applicant than the SoP made at the date of the Commission's decision does not justify a departure from that prima facie rule (Thompson)

It seems to me that the thread upon which each of the Full Courts has decided its particular case is that, on review by the Tribunal, an applicant has a vested right to have the Commission's decision reviewed on the basis of the state of affairs at the time of the Commission's decision. That is not altered if a SoP is subsequently made or, if already in effect at the date of the Commission's decision, is amended or revoked and another made. While the judgement of Lee and Cooper JJ may be open to the interpretation that the Tribunal must apply whatever SoP is most beneficial to the applicant, the reasoning of Drummond and Emmett JJ in Thompson is inconsistent with those views. Drummond J expressly doubted that the majority in Keeley had intended their comments to go as far as that. Emmett J, with whose views Drummond J concurred on this aspect, considered that s. 31 of the Act is intended to accommodate subsequent amendments to a SoP, or subsequent SoPs, that prove to be more beneficial to a claimant than the SoP applicable at the time of the Commission's decision. The fact that assessment of a decision by reference to subsequent amendments, or a subsequent SoP, would prove more beneficial to a claimant does not support a finding that Parliament intended any variation to the claimant's accrued right to have the Commission's decision reviewed on the basis of the state of affairs at the time of the Commission's decision.

On my understanding of the authorities, it follows that, in the context of the fifty three applications that I am concerned with, I have decided that:

1.the respondent's decision in each of the forty eight applications based on the veteran's operational service is to be reviewed on the basis that the SoP in effect at the time the Commission made its decision (i.e. SoP 95) applies; and

2.the respondent's decision in each of the five applications based on the veteran's eligible war service is to be reviewed on the basis that the SoP in effect at the time the Commission made its decision (i.e. SoP 96) applies.

I certify that the seventy five preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President)
Signed:          ..............................................
  A Horne         Associate
Dates of Hearing  6 March, 2001
Date of Decision                  17 May, 2001
Counsel for the Applicant                            Mr D O'Gorman
Solicitor for the Applicant                           Gilshenan & Luton
Counsel for the Respondent                        Mr P Hanks
Legal Officer for the Respondent                  Mr S Francis, DVA

[2001] AATA 413

17 May 2001