Ogston v The Repatriation Commission

[1999] HCATrans 431

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S53 of 1999

B e t w e e n -

PHYLLIS NERIDAH OGSTON

Applicant

and

THE REPATRIATION COMMISSION

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 NOVEMBER 1999, AT 11.22 AM

Copyright in the High Court of Australia

MR A.T. McINNES, QC:   If the Court pleases, I appear with my learned friend, MR M. VINCENT, for the applicant. (instructed by Kenneth Harrison)

MR P.J. HANKS, QC:   If the Court pleases, I appear for the respondent. (instructed by the Australian Government Solicitor)

GLEESON CJ:   Mr McInnes.

MR McINNES:   Your Honours, this is an appeal from the Full Bench of the Federal Court.  The matters that we seek to agitate are on the last page of the judgment at page 32.  It deals with the Veterans’ Entitlement Act and, in particular, section 120A, which was introduced in 1994.  Two aspects, your Honour, that we raise:  one is the retrospective effect of statements of principle that are made pursuant to section 196B of the Veterans Entitlement Act and now, by virtue of section 120A, a necessary element in a reasonable hypothesis; and the second aspect is whether the factors in a statement of principle have to comply with other statements of principles. 

In this case the claim was death from ischaemic heart disease and one of the factors was hypertension for ischaemic heart disease.  It is defined in the statement of principle, but there is also a statement of principle which dealt specifically – is, I should say, a statement of principle which deals specifically with hypertension and the hypothesis was that the deceased veteran had ischaemic heart disease.  He had hypertension.  That caused the ischaemic heart disease.  Stress caused the hypertension.  War caused the stress.  But in the factors for the hypertension statement of principle, stress is not a factor, and it was said that we had to comply with the second statement of principle.

I should tell your Honours that there was an amendment to both these statements of principle in October, which now require the application of other factors, to look at the statement of principles that are applicable in the factors of the disease or injury that is being caused, but, so far as I know and we have been able to find out, it only relates to the hypertension and ischaemic heart disease statement of principles.

KIRBY J:   I do not quite understand that last statement.  Does that mean that you can go outside the template, does it?

MR McINNES:   Yes.  Well you would have to now, your Honour, for those two illnesses, at least, so that it is obligatory to look at other statements of principles to ‑ ‑ ‑

KIRBY J:   Yes, but one can have disagreement with this procedure; I mean, I remember there were doctors, Dr Raftos thought that heart attacks were always caused by effort; Dr Bauer thought heart attacks were never caused by effort and, depending on who you called and who the judge accepted, that determined the case.

MR McINNES:   Yes.

KIRBY J:   Well obviously the Parliament, the Executive Government, has considered that that should not be allowed, and it is pretty clearly established by the template and one can criticise it, but ‑ ‑ ‑

MR McINNES:    Well, if the hypertension template is applicable - we say it was not - in the wording of section 196B, they are discrete statements of principles and there was no justification for going outside.  The other thing we say, that subsequent amendments to those particular statements of principle, give different definitions for hypertension, so that confusion can easily arise.

Your Honours, there are two things that I would seek to do:  firstly, I would seek leave to amend the draft notice of appeal by the addition of another ground, which really expands ground 4.

GLEESON CJ:   What page, Mr McInnes?

MR McINNES:   Page 36, your Honour.

GLEESON CJ:   Thank you.

MR McINNES:    I understand there is no objection to - - -

KIRBY J:   You have not picked up a judge so far on your way to this destination in the interpretation problem that you present?  No judge has favoured your arguments?

MR McINNES:   No.

GLEESON CJ:   Well, there are eight against you altogether, are there not?  There is another decision of the Full Court of the Federal Court upholding a first instance decision.

MR McINNES:   Well there are a number, your Honour, I do not know that I have counted them all, but there are a number.  They have all followed ‑ ‑ ‑

GLEESON CJ:   At all events, you have run up a flag and nobody has saluted?

KIRBY J:   So far.

MR McINNES:   Yes, they have all followed Justice Goldberg in McKenna, Justice Mathews, of course, in this matter and then the Full Court in this matter, yes.

The retrospective argument, of course, I have at least got some support from Mr Justice Heerey in Keeley v Repatriation Commission, at first instance; that is for a hearing on appeal tomorrow, as I understand it, so at least I have got someone.  He was dealing with an amendment to a statement of principle and was therefore able to distinguish it from Ogston’s case, or this case, but we say that it really is a distinction without a difference.

GLEESON CJ:   Why do you not read your additional ground onto the record if it is not in dispute.

MR McINNES:   Yes, your Honour.  The ground 8:  The court should have held that pursuant to sections 196B and 196D of the Veterans’ Entitlement Act 1986 and sections 46A and 48 of the Acts Interpretation Act 1901, a statement of principle does not operate retrospectively. That covers it more clearly than the earlier ground.

Now, your Honours, their Honours held that - if I may take you to section 120A.  Before I do that, your Honour, there was an affidavit of Mr Harrison’s, which sets out cases that are awaiting the decision in this matter.  It is sworn on 25 November 1999 and it has been filed in the Court. I trust your Honours have a copy of that.  He says:

1.  I am the solicitor for the Applicant.
2.  I have carriage of various other matters both at the Administrative Appeals Tribunal and the Federal Court.
3.  Some of these matters have been adjourned pending this Honourable Court’s rulings in relation to Grounds 2 to 5 in the Application for Special Leave to Appeal.

There are six listed.  Paragraph 4:

Another matter, Repatriation Commission v Jean George, has been adjourned by the Federal Court pending this Honourable Court’s ruling on Ground 6 in the Application for Special Leave to Appeal.

5.        On 22nd March 1999 I had a telephone conversation with Mr Brett Williams whom I know to be a solicitor practising, inter alia, in the field of veteran’s affairs.  He told me and I verily believe that he has the carriage of two matters which have been adjourned pending the outcome of these proceedings, they being:

They are:

Thompson v Repatriation Commission -

and –

Bilbow v Repatriation Commission.

KIRBY J:   I do not understand why you are taking time to establish that there are many cases that turn on the case.  What you have got to use your time doing is trying to persuade us that we should intervene.

MR McINNES:   Well, your Honour, what I was trying to do is establish some evidence that these are matters of significance.

KIRBY J:   It is obvious, it is a template.

MR McINNES:   Thank you, your Honour.  The section that the court held was 120A and subsection (1) says:

This section applies to any of the following claims made on or after 1 June 1994.

In subsection (2):

The Commission is not to determine a claim –

where the –

Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death –

and the Court has said that that is a clear indication that the statement of principle applies retrospectively.  Your Honour, we rely on section 196 ‑ ‑ ‑

KIRBY J:   Can I ask you this.  If it did reply retrospectively, would that raise a constitutional question as to the extinction of established rights of your client and is that a reason why one would not give it a retrospective operation?

MR McINNES:   Yes, but it would not be in line with Esbar’s Case and the others, your Honour, but what the court held was that the statement of principle was merely a matter of procedure and it did say that they accepted that there were established rights, but ‑ ‑ ‑

KIRBY J:   I do not see that point being argued anywhere.  That is to say, that a reason for construing the amendment as prospective is that if it were construed retrospectively, it would involve expropriation of property, being a cause of action, without just terms.

MR McINNES:   Sorry, your Honour, it was the accrued rights argument that we submit.

GLEESON CJ:   Well, the problem is that it is a bit hard to give a solely prospective construction to a statutory provision that says it is going to take effect from a certain date.

MR McINNES:   But, your Honour, it is more than that, because 196B sets out how the determination of statement of principles are to be made.  Then at 196D of the Act:

Disallowable instrument

A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Now, 46A ‑ ‑ ‑

KIRBY J:   Yes, we have that in papers.

MR McINNES:   Yes. It makes the disallowable instruments the same as regulations and therefore it is caught by section 48(2) of the Acts Interpretation Act 1901, which says:

A regulation, or a provision of regulations, has no effect if, apart from this subsection, it would take effect before the date of notification and as a result:

(a)  the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at the date of notification would be affected so as to disadvantage that person.

So their legislation has specifically provided that it is not to have a retrospective ‑ ‑ ‑

GLEESON CJ:   Yes, there was an important question, in this case, as to the application to what was done of the provision of that Act, but there was no question of construction, was there, because they specified the date from which this would have effect, a retrospective date.  Now there is a question as to whether they had the capacity to do that, in the light of the provision of the Acts Interpretation Act to which you refer, but there was never any question of construction, was there?

MR McINNES:   Well, your Honour, in our submission, what has to happen is that it has to make it clear that rights, whatever they may be, are affected, and although it would have retrospective application for many purposes, suppose it was more favourable to the applicant, for example, it would have effect, but we are dealing with a loss of rights and the submission is that the mere fact that the section is retrospective, without more, does not take away the established rights of a person.  There are many instances, in my submission, where an Act would be retrospective, that the cases, Esbar’s Case and the others, say the right to preserve.

GLEESON CJ:   I was just suggesting for your comment that that may be the explanation of why we do not see the argument whose absence was commented on.

MR McINNES:   Yes, I see, your Honour, yes.  But, in any event, the court held that section 120A virtually overruled, as it were, the later provisions of the Veterans’ Entitlement Act and the Acts Interpretation Act.  Our submission is that one has to look at 120A and see whether it is, with reasonable certainty, intended to take away established rights.  I do not know there is more I wish to say, your Honour.

GLEESON CJ:   Thank you, Mr McInnes.

MR McINNES:   The other matter, your Honour, the meaning – if I might take your Honours back to 196B “Functions of Authority”, subsection (2):

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; or
(b)  peacekeeping service rendered by members of Peacekeeping Forces; or

(c)hazardous service rendered by members of the Forces;

the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death –

Now, my submission is that it is quite clear from that, and from the reading of 120A, that the legislation is dealing with but one statement of principle, setting out the factors that a minimum exist.

Now that does not include factors of other statements of principles, which:

those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised –

Now, your Honours, my submission is that it is quite clear, at that stage, that the statement of principle was complete in itself, one template, and that was what had to be applied by 128.  They are my submissions, your Honours.

GLEESON CJ:   Yes, Mr Hanks.

MR HANKS:   If the Court pleases.  We would say that this is simply a question of construction, that is the construction of section 120A, the section which commenced operation on 1 June 1994.

KIRBY J:   But it is one that affects a lot of veterans.

MR HANKS:    It has an affect on the administration of the Act generally and I can say that there are a significant number of claims that are lodged annually, which would fall to be determined under this system.  So that is the case, your Honour, yes, a very significant number.

KIRBY J:   Is it a wrong thing for me to have in mind that they fought for the country and that the Court should give them a little of its time?

MR HANKS:   Yes, your Honour, I think that might not be a relevant consideration on the construction of the section in the Act, and that is what this case is about.  It is apparent, your Honour, if one looks, for example, at the extrinsic material accompanying the introduction of the legislation, that a particular objective was being sought by the Parliament and I cannot do better than refer your Honours to the summary which his Honour Justice Lindgren offered in the matter of Beale v Administrative Appeals Tribunal and Another.  That does appear in the authorities which we have provided to the Court.  It is at tab 2.  That was an attempt to prohibit the AAT from proceeding with the matter.  If I might take your Honours very briefly to page 500 of the Administrative Appeals Reports, AARs.  There, under the heading of “Legislative scheme” his Honour sets out the background to this amending legislation and at about point 7 on the page, carrying over until about point 4 on the following page, his Honour summarises some of the points which were made in the second reading speech in the explanatory memorandum. 

Then his Honour goes on to set out, as it were, the structure of the amendments which were introduced in 1994 and it is plain, we would say, that the intention of the amendments was that issues of aetiology, that is causation of injuries, diseases and death, were to be determined not by decision makers such as the Commission, my client, or the Tribunal, the Administrative Appeals Tribunal, but were to be determined by a panel of experts, the Repatriation Medical Authority which is established and given corporate status under the Act.

KIRBY J:   These are experts chosen by the Commonwealth.

MR HANKS:   By the Minister.  They are appointed by the Minister, your Honour.

KIRBY J:   Yes.  As I said earlier, you choose the doctor, you get your template.

MR HANKS:   That might be so, your Honour, were it not for the case that the Authority is not a single doctor and were it not for the case that the Authority ‑ ‑ ‑

KIRBY J:   Once again, you choose your doctors with their well‑known views and you get your template.

MR HANKS:   Your Honour, this does not go to the construction of the Act, with respect.  The scheme which has been adopted by the legislature ‑ ‑ ‑

KIRBY J:   It goes to the scrutiny, perhaps, that the Court should give to the Act.

MR HANKS:   Quite so, your Honour.  Your Honour is, with respect, entirely justified in adopting that approach, but even with the heightened scrutiny your Honour will not find the scrutinies in the decision of the Full Federal Court here which my learned friends appearing for the application assert are there, and that is really the point of this application for special leave.  It is plain that the intention was that where an issue arose as to the medical causation of a particular disease, injury or death, that that was to be determined by reference, as your Honour has put it, the template, that is the template prescribed by the Authority.  That is the approach which was taken here.

There are two issues that are raised against us in this application.  The first of those is whether in the circumstance of the present case, there being no template at the time that the claim was lodge but there being a template before the primary decision was made, whether the claim was to be determined by reference to that template.  In our submission both section 120A(1) and (2) make it clear that that was the Parliament’s intention and one need not go any further than that.  Indeed, that is the primary basis on which the Full Court in this case held that the Tribunal had not erred in law by applying the statements of principles made after the lodging of the claim.

Those statements of principles did not, in our submission, have any retrospective effect.  They applied to the determinations which were to be made, in this case after the statements of principles were presented.  They were not retrospective in any sense.  They did not purport to be retrospective.  However, the Act, that is section 120A, demanded that they be applied when a determination was made, if that determination was one in response to  a claim “made on or after 1 June 1994” that being the date on which these amendments came into operation.  Could I take your Honours very briefly to the language which is used in ‑ ‑ ‑

KIRBY J:   That does have a retrospective operation, though does it not?

MR HANKS:   In what sense, your Honour?

KIRBY J:   In the sense that if the stress occurred in wartime 30 years before and if by the supervening law it is taken out of the template then it has a retrospective operation on the entitlements to the veteran.

MR HANKS:   In so far as there are any such entitlements, that being a matter which remains for determination in the administrative process which is set up under this Act.

KIRBY J:   I realise that but if it gets to the Tribunal that is what it is bound by.

MR HANKS:   Quite so.  Yes, it is bound to apply the law as it stands.

KIRBY J:   That, therefore, does have a retrospective operation in the sense that but for the template the veteran would have been entitled to just call evidence in the ordinary way and seek to establish it.

MR HANKS:   And that evidence may or may not have assisted the veteran.

KIRBY J:   Exactly.

MR HANKS:   Yes.

KIRBY J:   But that would have been decided on the basis of evidence, not on the basis of a template.

MR HANKS:   That point might go to an alternative basis which was alluded to by the Full Court at the conclusion of its reasons, namely that these changes relate to matters of procedure, that is, they relate to the process which is to be adopted for the vindication or the establishment of the right to pension rather than diminishing that right, rather than reducing the liability of the Commonwealth which is expressed in section 13 of the Act, but that is an independent point we would say, your Honour.  As a matter of construction, even if it were the case that the 1994 amendments and the statements of principles which they supported operated to reduce existing rights, it is plain that the legislature intended that result, for subsection (1) says, in terms, that section 120A is to apply to all “claims made on or after 1 June 1994”.

Subsection (2) contains what one might describe as the suspending provision, where a claim is made and the Repatriation Medical Authority responsible for making statements of principles issues a notice that it is considering making a statement of principles for the first time.  The Commission is directed not to proceed with consideration of the claim, not to proceed unless or until the statement of principles is made, and, as their Honours said in the Full Court, the intention of that suspension can only be that once the statement of principles is made it is to be applied, otherwise there would be no point in directing the Commission to suspend its operations.  So, it was in those two provisions ‑ ‑ ‑

KIRBY J:   That provision is in the Act itself, is it?

MR HANKS:   Yes, it is, your Honour.  I have been referring to section 120A(1) and (2).  Those were provisions which attracted the attention of the Full Court here and which we would say quite clearly formed the very fulcrum of their reasoning as to why it could not be said that, once made, the new statement of principles could not be applied. 

If I might turn to the second matter which is agitated here.  As my friend, Mr McInnes, said, there was a hypothesis with a series of steps in it which was proposed on behalf of the present applicant, a hypothesis which was said to connect the late veteran’s death with his war service.  It started with the war service which it was said had induced some psychiatric reaction or psychological reaction of stress.  Then it was said that the stress had induced hypertension or contributed to it.

The next step, indeed the fourth step was that the hypertension had led to ischaemic heart disease, and, finally, it was said the ischaemic heart disease was the cause of death.  So, one has a chain, as it were, by a hypothesis, a theory, a possible explanation for the veteran’s death, linking that death to war service.  Now, in those circumstances, that hypothesis, according to the existing standard of proof at the time that 120A was enacted, according to that standard of proof as it appeared in section 120(3) and (1) the question of the Tribunal was, first, after considering all of the material is that a “reasonable hypothesis”.  Formerly, that would have been answered by considering medical opinions, perhaps contested medical opinions and resolving any disputes between the medical experts on the principles outlined by the principal judgment in Bushell v Repatriation Commission.

If there was a reasonable hypothesis, the decision maker would then have turned to subsection (1) “beyond reasonable doubt”, the reverse standard, in order to determine whether the foundation for the hypothesis was present or excluded.  The changes that were introduced in 1994 impacted on one part of that decision-making process, namely the evaluation of medical evidence.  The clear direction is stated in section 120A(3).  It links back directly to section 120(3) from its opening words:

For the purposes of subsection 120(3), a hypothesis connecting –

if I might elide some of the language -

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) –

that is the only one that need worry us -

that upholds the hypothesis.

The reasoning adopted by – one might say very shortly adopted by the Full Court in this case was elaborated by a differently constituted Full Court in McKenna v Repatriation Commission which in turn followed, or should I say upheld, the reasoning of Justice Goldberg in that case.  So, one would need to look at what the Full Court said in McKenna v Repatriation Commission in order to understand the reasoning fully, but the simple point, as we understand it, was made and it is one that we embrace as entirely correct, we would say, and not open to any serious doubt, where a hypothesis has within it a number of, as it was put in McKenna, sub‑hypotheses, as the present one does, where there are a number of links

in the explanation in the hypothesis and there is a statement of principles that is relevant to several of those links, then those links for which there is a statement of principles are to be upheld by the relevant statement of principles.

As their Honours said in McKenna, there is no difficulty in construing, indeed there is no reason against adopting the construction of section 120A(3) which attributes to the word “statement of principles” the plural, “statements of principles”. There is no reason to assume that the Parliament intended to exclude the operation of section 23(b) of the Acts Interpretation Act.  Unless the contrary intention appears, words connoting the singular are to connote the plural. 

So, in the present case, as the Full Court said in McKenna, a hypothesis of this type can be no stronger than its components and where there are two statements of principles, one expressing the acceptable links between ischaemic heart disease and war service, the other expressing the acceptable links between hypertension and war service, a hypothesis of the type advanced here must be consistent with each of those statements of principles.

No doubt your Honours have had some time to look very briefly at the two statements of principles and your Honours will see that if one turns, for example, to page 85 ‑ ‑ ‑

GLEESON CJ:   We have looked at that, thank you, Mr Hanks.

MR HANKS:   Yes, if your Honour please.  I perhaps wanted to respond briefly to a comment that I think was implicit in his Honour Justice Kirby’s observations.  One sees that the connections which are accepted as sufficient to found, or the factors which were accepted as sufficient to found connection with war service in the case if ischaemic heart disease, are many.  If your Honour, pleases.

GLEESON CJ:   Thank you, Mr Hanks.  Yes, Mr McInnes.

MR McINNES:   Your Honours, first of all, it is not a matter of mere procedure, it is a right that the applicant had prior to coming into existence, the statement of principles, all be it a contingent right.  The claim was dependent upon the time when the Commission got around to considering that because there is a period of time when there was no statement of principle and until the notice is given under section 196G, in accordance with 120A(2), then the Commission could have dealt with the matter. 

The other thing that I wanted to say, your Honour, if the plural is to be used, it gives a very strange meaning to that section of 196B(4):

If the Authority:

(a) receives a request under section 196E to carry out an investigation in respect of a particular kind of injury, disease or death ‑

that would have to be particular of “injury, disease or death” to come within the plural.

KIRBY J:   But it could be, and appears to be, used in a generic sense.

MR McINNES:   Yes.  They were the only submissions I wished to make in reply, your Honour.

GLEESON CJ:   Thank you, Mr McInnes.

The Court does not consider that there are sufficient prospects of success of an appeal to warrant a grant of special leave in this matter.  The application is refused.

Do you seek costs?

MR HANKS:   In the ordinary course, yes, your Honour, we do seek costs.  We did not seek costs before the Full Court.  That was our appeal – I am sorry, I do withdraw that – it was not our appeal.  We did not seek costs before the Full Court.  We do here.

GLEESON CJ:   What is your submission?

MR McINNES:   I have nothing to say on costs, your Honour.

GLEESON CJ:   Very well.  The applicant must pay the respondent’s costs of the application.

AT 11.56 AM THE MATTER WAS CONCLUDED