Morris, R.W. v Repatriation Commission

Re: ROY WILFRED MORRIS
And: REPATRIATION COMMISSION
No. G1059 of 1988
FED No. 422
Veterans' Affairs
102 ALR 540
30 FCR 453/14 AAR 107
(1991) 23 ALD 562

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Veterans' Affairs - Disability pension - claim for pension for lateral epicondylitis and plantar fasciitis - standard of proof - change in standard of proof since Repatriation Commission decision - AAT bound to apply new standard under s. 120(4) Veteran's Entitlements Act - discussion of transitional provisions s. 42, 43 and 44 of the Veteran's Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 (Cth).

Administrative Appeals Tribunal Act 1975: s. 43

Repatriation Act 1920: s. 47, s. 107VH, s. 107VG

Repatriation Acts Amendment Act 1979: s. 11

Repatriation Legislation Amendment Act 1985: s. 16, s. 32, s. 69, s. 70, s. 71, s. 72

Repatriation Legislation Amendment Act 1984

Veterans' Entitlements Act 1986: s. 120, Part X

Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986: s. 42, 43, 44

HEARING

SYDNEY

#DATE 26:7:1991

Counsel for the Applicant : M.B. Smith

Solicitors for the Applicant : Vandenberg Reid Pappas and McDonald

Counsel for the Respondent : Miss R Henderson

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The appeal be dismissed.

The decision of the Administrative Appeals Tribunal, Veteran Appeals Division, made on 1 June 1988 (whereby the Tribunal decided to affirm the decision made on 12 April 1984 by the Repatriation Commission which was itself affirmed on 24 September 1986 by the Veterans' Review Board) that the applicant's claim for lateral epicondylitis and plantar fasciitis be refused, be confirmed.

That the applicant pay the costs of the respondent of the appeal to this Court.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal, pursuant to s. 44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), on a question of law from a decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by a senior member ("the Tribunal"), made on 1 June 1988. The Tribunal decided to affirm the earlier decision made on 12 April 1984 by the Repatriation Commission ("the Commission"), a decision which was later affirmed on 24 September 1986 by the Veterans' Review Board. The Commission's decision was that the applicant's claim for lateral epicondylitis and plantar fasciitis be refused. In lay terms the conditions are known as tennis elbow and painful heels respectively.

The applicant served in the Australian Armed Forces from 2 March 1942 to 28 January 1979. He joined the army at the age of 18 and rose through the ranks to Brigadier. During the period of service with which this matter is concerned (7 December 1972 to 28 January 1979) he was a senior officer of the Ordnance Corps posted in Melbourne, Sydney and Canberra. The applicant is now 67 years of age and is a married man.
The applicant's case is that the lateral epicondylitis arose out of or was attributable to his military service and that the plantar fasciitis, which was contracted before 1972, was contributed to in a material degree or was aggravated by his military service thereafter. It is not in issue that the applicant has the two disabilities.
Lateral epicondylitis
The applicant's case before the Tribunal was that he first noticed pain in his right elbow in the latter half of 1978. He reported it on 12 January 1979 and was treated with physiotherapy. He still has the problem when conditions recur similar to those to which he attributed its earlier occurrence. The conditions include the carrying of heavy suitcases. The applicant says that in performing his duties in the final years of his military service he had to spend 10% to 15% of his working time on visits to supply units and facilities throughout Australia. In the course of those visits he was often obliged to carry a heavy suitcase weighing 30 kilograms or more to and from official transport. Also, when at home base, he often had to carry heavy briefcases of documents to and from his car for work at home. The applicant claimed that these efforts were a cause of his lateral epicondylitis.
Medical evidence was called by both parties before the Tribunal.
It was not in dispute before the Tribunal that the applicant had lateral epicondylitis and the only question for decision was whether there was a causal relationship between that condition and his service. The Tribunal found:

"I am not reasonably satisfied that there is such a relationship. First, as I see it, there is a slight balance in favour of the respondent in the evidence of the medical witnesses who are unequivocable (Dr Kohan and Dr Stockler, as against Dr Carr). Second, a commonsense reading of the evidence suggests that the amount of carrying heavy suitcases or briefcases that the veteran had to do could not have been so great or so frequent as to be of significance. The distances involved would have been short (e.g. car to airport registration desk) and on some occasions assistance was available."

The Plantar Fasciitis

The applicant's case before the Tribunal was that his plantar fasciitis was aggravated by the performance of his duties in the latter years of his military service upon inspection visits throughout Australia. These entailed a lot of walking on concrete floors as well as prolonged standing upon them and upon parade grounds, all this aggravating the condition. Again medical evidence was called by both parties with respect to this condition. The Tribunal concluded:

"I am reasonably satisfied that the opinions of Dr Stockler and Dr Kohen are to be preferred. In saying so, I note that there is little similarity between the analogy mentioned by Dr Seaton, a policeman on the beat and a senior Army officer as the veteran was, making occasional inspection visits, some brief, where the officer can largely regulate his own programme and pace."

The Tribunal affirmed the decision of the Commission with respect to both conditions.
The reasoning of the Tribunal indicates that it decided the claim before it by applying the test expressed in s. 120(4) of the Veterans' Entitlements Act 1986 ("the 1986 Act"), namely, that (except in certain cases which are not presently relevant) in making any determination or decision in respect of a relevant matter under that Act, it must "decide the matter to its reasonable satisfaction".
Relevant Statutory Provisions
The sole ground of appeal to this Court is that, since the applicant's claim was received by the relevant Department of the Federal Government before 15 May 1985 (I shall explain the relevance of this date later), the Tribunal was required to decide it according to the standard specified by s. 42(3) and (4) of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986, No. 28 of 1986, ("the 1986 Transitional Act"). This requirement arose, so it was argued, from s. 43(1) of the AAT Act" or s. 44(1) of the 1986 Transitional Act or by the combined operations of those two statutory provisions. This standard requires, if the submission be correct, that the claim of the applicant should have been granted by the Tribunal unless it was satisfied, beyond reasonable doubt, (a) that, after considering the whole of the material before it, that it was of the opinion that such material did not raise a "reasonable hypothesis" connecting the disease with the circumstances of the applicant's particular service, and (b) that there was no sufficient ground for granting the claim (s. 42(3) and (4) of the 1986 Transitional Act are set out in full later). That standard is a substantially lower threshold for the applicant to cross in order to succeed than the threshold specified in s. 120(4) of the 1986 Act.
An examination of the history of the relevant statutory provisions in the repatriation legislation is necessary. From the Repatriation Acts Amendment Act 1979 (No. 18 of 1979) s. 11 to 6 June 1985, the commencement of the Repatriation Legislation Amendment Act 1985 ("the 1985 Amendment Act"), s. 47 of the Repatriation Act 1920 ("the Repatriation Act") required, in the case of persons claiming pensions for death or incapacity, that a claim for pension or an application for an increased rate of a pension was to be granted unless the Repatriation Commission ("the Commission") was satisfied beyond reasonable doubt that there were insufficient grounds for doing so. Section 47 applied also to the hearing and determination by the Commission of appeals against decisions of Repatriation Boards as they were then called. Section 107VH, also introduced in 1979, required the Repatriation Review Tribunal, as it was then called to apply this same standard of proof. The Repatriation Review Tribunal was replaced by the Veterans' Review Board by the Repatriation Legislation Amendment Act 1984 ("the 1984 Amendment Act"). Part IIIA of the Repatriation Act was repealed by the 1984 Amendment Act and replaced by a new Part IIIA which contained a new s. 107VG which had the same effect as the repealed s. 107VH except that it related to the Veterans' Review Board, not the Repatriation Review Tribunal.
Sections 16 and 32 of the 1985 Amendment Act amended ss. 47 and 107VG. A new subsection (2) was inserted in s. 47 which required the Commission generally not to grant a claim for a pension if it was reasonably satisfied either that there was no material before it which raised a "reasonable hypothesis" of a connection between the death or incapacity and war service of the veteran or that any such reasonable hypothesis had been dispelled. The Commission was also required by a new subsection (3) of s. 47 not to grant the claim unless it was reasonably satisfied that there were sufficient grounds for doing so. Exception was made where the claim was by a member of the Forces whose war service had included service outside Australia, or by a dependant of such a member who had died before 12 November 1958; in such a case the Commission was required by the new subsection (3) of s. 47 to grant the claim unless it was satisfied beyond reasonable doubt that there were insufficient grounds for doing so. The Commission was required by the new subsection (4) of s. 47, when determining an application for an increase in the rate of a pension, to decide the matter to its reasonable satisfaction.
Section 107VG was amended by the 1985 Amendment Act so as to require the Veterans' Review Board, when reviewing decisions of the Commission in respect of claims for pensions, to apply standards of proof identical to those which the amended s. 47 required the Commission to apply when considering and determining claims of the two different kinds, that is those made by persons with overseas war service or their dependants and those made by other persons.
The amendments to ss. 47 and 107VG came into effect on 6 June 1985; but s. 69 of the 1985 Amendment Act provided that the amendments to s. 47, other than the new subsection (2), did not apply to the consideration and determination by the Commission of a claim received by the Department before 15 May 1985. Section 70 of the 1985 Amendment Act contained similar provisions in respect of the determination by the Veterans' Review Board of applications for review, except that the ground for not applying the new provisions of s. 107VG was whether the application for review was made to the Board before 15 May 1985, not whether the claim to which the decision under review related was received by the relevant Department before that date. Hence from 6 June 1985 the Veterans Review Board was required to apply the new provisions in reviewing decisions in respect of claims received by the Department before 15 May 1985 unless the application for review had been made to the Board before that date.
Section 71 of the 1985 Amendment Act stated that, except where the Tribunal was reviewing, on the application of the Commission, a decision given by the Veterans' Review Board upon an application made to that Board before 15 May 1985 (in which case it was required to apply the provisions of s. 107VG before amendment), the Tribunal was not to grant a claim if it was reasonably satisfied either that there was no material before it which raised a reasonable hypothesis of a connection between the death or incapacity and war service or that any such reasonable hypothesis had been dispelled. The grounds for applying the provisions of s. 107VG prior to their amendment did not rely on whether the claim for pension was received by the Department before 15 May 1985 but relied on two factors: (a) that the decision of the Board under review was given on an application for review made to the Board before 15 May 1985; and (b) that the application to the Tribunal was made by the Commission. If both factors were not present, the reasonable satisfaction standard in s. 71(3) would apply.
The meaning and effect of s. 47(2) of the Repatriation Act in the form which it stood before the amendments made by the 1985 Amendment Act were considered by the High Court in Repatriation Commission v Law (1981) 147 CLR 635 and Repatriation Commission v O'Brien (1985) 155 CLR 422. The 1985 Amendment Act was introduced, at least in part, to overcome the construction of statutory provisions, including s. 47(2), adopted by the High Court and this Court.
The 1985 Amendment Act was intended to be temporary (see the sunset clause: s. 72). The changes introduced by that Act were carried over with some modification into the 1986 Act. Section 120 made provision for the reasonable satisfaction standard of proof to be applied in respect of the making of claims for pensions. Where a claim under Part II of the 1986 Act for a pension in respect of the incapacity from injury or disease of a veteran or of the death of a veteran relates to the operational service rendered by the veteran, the Commission is required to determine that the injury was a "war-caused" injury or that the disease was a "war-caused" disease or that the death of the veteran was "war-caused", as the case may be, unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s. 120(1)). A similar provision is made by s. 120(2) in relation to claims under Part IV in respect of incapacity from injury or disease of a member of a PeaceKeeping Force or the death of such a member or where hazardous service is involved.
Subsection (3) of s. 120 provides that, in applying subsection (1) or (2) 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 the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a) that the injury was a war-caused injury or a defence-caused injury;

(b) that the disease was a war-caused disease or a defence-caused disease; or

(c) that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. Hence the previous reverse onus test that applied under the Repatriation Act became subject to a threshold test of reasonable hypothesis.

Subsection (4) of s. 20 provides that in "Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under" the 1986 Act or the regulations, "including the assessment or re-assessment of the rate of a pension granted under Part II or IV, decide the matter to its reasonable satisfaction".
Counsel for the applicant argued that the Tribunal, when hearing and deciding the present application (which it is common ground was brought under s. 175 of the 1986 Act), in relation to the applicant's claim which was made before 15 May 1985, "was placed in the same position as the Commission would be if it were deciding the claim at the date of the Tribunal's decision"; or, put another way, "the transitional standard of proof of s. 42(3) and (4) was applicable, without the necessity for reference to other provisions of" the 1986 Transitional Act. It was also argued by counsel for the applicant that, if s. 44(1) of the 1986 Transitional Act "is read as a provision relating to applications under s. 175 of" the 1986 Act "as well as to reviews pending at the date" of its commencement, "then it carries the same effect".
Sections 42, 43 and 44 of the 1986 Transitional Act are critical. They provide as follows:

"42(1) Subject to sub-section (3), section 120 of the Veterans' Entitlements Act applies to and in relation to the consideration and determination by the Commission of a claim for a pension on or after the commencing date, whether the claim was received at an office of the Department before, on or after that date.

(2) Subject to sub-section (3), section 120 of the Veterans' Entitlements Act applies to and in relation to every determination or decision made by the Commission under the Veterans' Entitlements Act, including a determination or decision so made by reason of the application of that Act as provided in this Act.

(3) Where, on or after the commencing date, the Commission is considering and determining a claim for a pension (not being a service pension) that was received at an office of the Department in Australia before 15 May 1985 -

(a) section 120 of the Veterans' Entitlements Act does not apply to or in relation to its consideration and determination of the claim; and

(b) the Commission shall, subject to sub-section (4) of this section, grant the claim unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for granting the claim.

(4) In applying paragraph (3)(b) 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 the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining -

(a) that the injury was a war-caused injury or a defence-caused injury;

(b) that the disease was a war-caused disease or a defence-caused disease; or

(c) that the death was war-caused or defence-caused, as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

43(1) Subject to sub-section (2), where the Board reviews, on or after the commencing date, a decision or determination of the Commission made before that date, section 139 of the Veterans' Entitlements Act applies to and in relation to the review, and, for the purpose of its application in relation to the review, the Commission shall be deemed to have the powers and discretions conferred on it by the Veterans' Entitlements Act in its application by virtue of the provisions of this Act.

(2) Where, on or after the commencing date, the Board reviews, upon an application that was made to it before 15 May 1985, a decision of the Commission with respect to a claim for a pension, the Commission shall be deemed to have the powers and discretions conferred on it by -

(a) the provisions of the Veterans' Entitlements Act, other than section 120 of that Act; and

(b) the provisions of sub-sections 42(3) and (4) of this Act. 44(1) Subject to sub-section (2), where the Administrative Appeals Tribunal reviews, on or after the commencing date, a decision made under a repealed Act, the person who made the decision shall be deemed, for the purposes of section 43 of the Administrative Appeals Tribunal Act 1975, to have the powers and discretions conferred on that person by the Veterans' Entitlements Act in its application by virtue of this Act.

(2) Where, on or after the commencing date, the Administrative Appeals Tribunal, upon application made by the Commission, reviews a decision given by the Board before 15 May 1985, being a decision granting a claim for a pension, the person who made the decision shall be deemed, for the purposes of section 43 of the Administrative Appeals Tribunal Act 1975, to have the powers and discretions conferred on the Commission by -

(a) the provisions of the Veterans' Entitlements Act, other than section 120 of that Act; and

(b) the provisions of sub-sections 42(3) of this Act."

These sections require close examination, but they must be examined in the context of the repatriation legislation and its history, to some of which reference has already been made.
Findings
Section 42 is directed to the cases where the Commission is considering and determining a claim for a pension where that consideration and determination is being given and made on or after 22 May 1986 (the commencing date of the 1986 Transitional Act) whether that claim was viewed by the Department before, on or after that date. This is plain from the clear language of the section. Subject to subsection (3), the standard of proof provisions in s. 120 of the 1986 Act apply to and in relation to the consideration and determination by the Commission of those claims. The exception in subsection (3) of s. 42 is designed to ensure that, where the Commission is considering and determining a claim for a pension (not being a service pension) after 22 May 1986 that was received at the office of the Department in Australia before 15 May 1985, the veteran does not lose the benefit of the lower standard of proof which applied under the earlier legislation. Hence, the Commission is obliged to grant the claim unless it is satisfied beyond reasonable doubt that there is no sufficient ground for granting the claim but subject to the qualification provided for by s. 42(4) in relation to the raising of a "reasonable hypothesis".
Section 43 contains the same provision in substance as does s. 42, but with respect to the review by the Veterans' Review Board of earlier decisions of the Commission where the application for review by the Board was made to it before 15 May 1985.
The Tribunal's powers of review are derived from the 1986 Act (Part X) together with the AAT Act (s. 43) (the earlier Repatriation Legislation having been repealed).
Section 44(1) of the 1986 Transitional Act applies where the Tribunal reviews after 22 May 1986 a decision made under a repealed Act. It deems the decision-maker, for the purposes of s. 43 of the AAT Act, to have the powers and discretions conferred on the decision-maker by the 1986 Act in its application by virtue of the 1986 Transitional Act. Section 43(1) of the AAT Act provides (relevantly):-

"For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision ..."

It is clear that in the exercise of its review function under s. 43 of the AAT Act the Tribunal stands in the shoes of the decision-maker. The effect of s. 44(1) is to change the "shoes" of the decision-maker by deeming him to have the "powers and discretions" that are conferred by the 1986 Acts. In this context, "powers and discretions" would, in my opinion, include the relevant standard of proof as that is linked inextricably to the determination of the claim. This construction of the words "powers and discretions" is supported by s. 44(2) which includes for the purposes of that subsection the provisions of s. 42(3) within the scope of "powers and discretions"; and subsection (3) of s. 42 is concerned solely with standard of proof.

In the present case, the Commission in 1984 was applying the beyond reasonable doubt standard of proof required by s. 47 of the Repatriation Act, as it then stood. Section 44(1) deems, in my view, the Commission to have decided the matter on the 1986 Acts standard of proof. Therefore s. 43 of the AAT Act would require the Tribunal to decide the matter on that same standard of proof.
What is then the standard of proof required under the 1986 Acts? Section 44(2) applies to reviews before the Tribunal of decisions given by the Veteran's Review Board before 15 May 1985 where the application for review was made by the Commission. In such cases, the veteran does not lose the lower standard of proof that previously existed and which is stated in s. 42(3). However, section 44(2) does not apply to this appeal as the appeal to the Tribunal from the Veterans' Review Board was instituted by the applicant not the Commission.
Section 44(1), in my view, obliged the Tribunal to apply the standard of proof in subsection (4) of s. 120 of the 1986 Act; that is, to decide matters to its reasonable satisfaction. Counsel for the applicant argued that the "standing in the shoes" concept propounded by s. 44 of the 1986 Transitional Act and s. 43 of the AAT Act required the Tribunal to place itself in the same position as the Commission would be if it were deciding the claim at the date of the Tribunal's decision. This would have the effect, so it was argued, of making the standard of proof provisions in s. 42(3) and 42(4) applicable, without the necessity for reference to other provisions. In my view the argument is fallacious. Section 42 of the 1986 Transitional Act is a transitional provision concerned only with the actual consideration and determination by the Commission of claims after 22 May 1986. Section 42 of the 1986 Transitional Act has no application to claims that the Commission considered before 22 May 1986.
When you consider sections 42, 43 and 44 of the 1986 Transitional Act, if the veteran has been previously unsuccessful before the Commission or the Board, then the Legislature has plainly enough in my view indicated an intention that the higher standards of proof apply to him. It is a fallacy to import into the transitional provisions, in particular s. 44, the notion that when the Tribunal exercises its powers of review it becomes bound by the constraints imposed upon the Commission by s. 42(3) or the Board by s. 43(2) relating to the benefit to the veteran of the lower standard of proof. The conclusion for which the applicant contends does not flow from the ordinary meaning of the language of any of the relevant statutory provisions. Nor is it a case where the construction of the legislation for which the Commission contends would produce a capricious result (see Cooper Brookes (Wollongong) Pty. Limited v Commissioner of Taxation (1981) 147 CLR 297 at 305, 321). On the contrary the construction which appeals to me flows in my opinion naturally from not only the language of the statutory provisions but the evident purpose which they are to serve when viewed in the context of the scheme of the Repatriation Legislation, in particular the 1986 Act and the 1986 Transitional Act.
In short ss. 42, 43 and 44 are intended to bring about the result that injustice is not done to veterans (by subjecting them to a higher standard of proof) where at the date of the commencement of the 1986 Transitional Act they have claims for pensions pending before the Commission and received by the Department before 15 May 1985 (s. 42) or applications for review by the Veterans' Review Board made to it before 15 May 1985 (s. 43) or applications to the Tribunal by the Commission for review of decisions of the Board made before 15 May 1985 (s. 44).
In this case there is no room for the operation of sections 42, 43 or 44(2). Hence the Tribunal was bound to conduct the review before it by applying the test expressed in s. 120(4) of the 1986 Act, by deciding the matter to its "reasonable satisfaction". This it did and correctly so. The attack on the Tribunal's decision fails.
In Re Fallows and Repatriation Commission (1986) 9 ALD 570 the Tribunal held that it would be inconsistent with the history of the "standard of proof" provisions in the repatriation legislation to construe s. 44(1) of the 1986 Transitional Act as having the effect of making receipt of the claim for pension by the Department before 15 May 1985 the criterion for requiring the Tribunal to apply the standard of proof referred to in s. 42(3). The Tribunal concluded that the provisions of s. 120 of the 1986 Act therefore must be applied in that case. I agree with the conclusion which the Tribunal reached in that case and the later decisions of the Tribunal in Re Repatriation Commission and Errol Smith (1986) 11 ALD 119; Re Delkou and Repatriation Commission (No 2) (1988) 16 ALD 363; Re Bowman and Repatriation Commission (1987) 12 ALD 759.
I would dismiss the appeal and confirm the Tribunal's decision made on 1 June 1988. The applicant must pay the costs of the Commission of the appeal.

[1991] FCA 422

26 JULY 1991