Paddon v Repatriation Commission

Case [2010] FCA 1147

FEDERAL COURT OF AUSTRALIA

Paddon v Repatriation Commission [2010] FCA 1147

Citation: Paddon v Repatriation Commission [2010] FCA 1147
Appeal from: Paddon and Repatriation Commission [2010] AATA 470
Parties: RICHARD BARRATT PADDON v REPATRIATION COMMISSION
File number: QUD 294 of 2010
Judge: LOGAN J
Date of judgment: 22 October 2010
Catchwords:

ADMINISTRATIVE LAW – Veterans’ Affairs – Eligibility for receipt of pension – Appeal from decision of the Administrative Appeals Tribunal – Whether Tribunal correctly applied the test required by s 120 and s 120A of the Veterans’ Entitlements Act 1986 (Cth) – Consideration of “category 2 stressors” for the purposes of the Statements of Principles drawn up under the Veterans’ Entitlements Act 1986 (Cth) – Whether Tribunal erred in construing aspects of relevant Statements of Principles – Where errors of law were present – Whether remittal to Tribunal should be ordered – Where remittal would be futile as conclusions reached on “clinical onset” for the purposes of the Statements of Principles were not under challenge

Held:  Appeal dismissed – Answers favourable on questions of law is a necessary but not sufficient basis for remittal to the Tribunal - Concession as to “clinical onset” finding fatal with respect to remittal

Legislation: Veterans’ Affairs (1994-1995 Budget Measures) Legislation Act 1994 (Cth)
Veterans’ Entitlements Act 1986 (Cth) ss 5AB, 120, 120A, 196A, 196B, 196M
Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited
Repatriation Commission v Deledio (1998) 83 FCR 82 considered
Repatriation Commission v Stoddart (2003) 134 FCR 392 applied
Repatriation Commission v Warren (2008) 167 FCR 511 cited
Woodward v Repatriation Commission (2003) 131 FCR 473 cited
Date of hearing: 21 October 2010
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 41
Counsel for the Applicant: Mr R Clutterbuck
Solicitor for the Applicant: Haney Lawyers
Counsel for the Respondent: Ms H Bowskill
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 294 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

RICHARD BARRATT PADDON
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

22 OCTOBER 2010

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 294 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

RICHARD BARRATT PADDON
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

LOGAN J

DATE:

22 OCTOBER 2010

PLACE:

BRISBANE

REASONS FOR JUDGMENT

  1. Mr Richard Paddon, the applicant, was a member of the Australian Regular Army between 8 May 1967 and 7 May 1970. He was discharged upon the expiry of his term of enlistment.  At the time of his discharge, he had yet to attain his 21st birthday.

  2. Mr Paddon’s parent corps was the Royal Australian Engineers.…

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Details
AGLC
Paddon v Repatriation Commission [2010] FCA 1147
Case
[2010] FCA 1147
Decision Date

CaseChat Overview and Summary

The case of Paddon v Repatriation Commission dealt with a dispute regarding the interpretation of "sound medical-scientific evidence" and its application in the context of veterans' claims for compensation. The respondent, Mr Paddon, sought compensation for generalised anxiety disorder and depressive conditions, which he claimed were related to his operational service. The primary issue before the court was whether the statements and medical records presented by Mr Paddon were sufficient to establish a reasonable hypothesis that his conditions were connected to his service, and if the relevant Statements of Practice (SoP) supported this hypothesis. The court was required to determine the proper interpretation of the term "concerns in the work environment" as used in the relevant SoP and whether these concerns could be related to the circumstances of operational service rendered by veterans.

The court examined the statutory framework, including the Veterans' Entitlements Act 1986 (VEA), which required that the hypothesis connecting the veteran's condition to his service be supported by sound medical-scientific evidence. The court found that the Tribunal's decision to accept Mr Paddon's evidence as sufficient to establish a reasonable hypothesis was not in error. However, the court held that the Tribunal erred in concluding that the relevant SoP supported this hypothesis. The court reasoned that the definition of "category 2 stressor" in the VEA, which includes "having concerns in the work environment," was not well aligned with the experiences typically encountered during operational service. The court found that the term "concerns in the work environment" was ambiguous and could potentially introduce an element of circularity. Given the lack of precedent or special technical meaning, the court adopted the Oxford Dictionary's definition of "concern" as "a matter or subject that affects or touches one, and that ought to engage one's active interest and attention." The court concluded that the Tribunal's interpretation of the relevant SoP was incorrect, as it did not properly align with the statutory language and context.

The court's decision resulted in the appeal being allowed, and the matter was remitted to the Tribunal for reconsideration in light of the court's findings. The Tribunal was directed to reassess whether the relevant SoP supported the hypothesis that Mr Paddon's conditions were connected to his operational service, taking into account the court's interpretation of the term "concerns in the work environment." The final orders of the court would likely involve the Tribunal conducting a further review of Mr Paddon's claim based on the clarified interpretation of the relevant statutory provisions and SoP.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The “Authority” mentioned in the sub-section is the Repatriation Medical Authority (RMA) established pursuant to s 196A. The Authority’s membership is drawn exclusively from persons who are registered medical practitioners or medical scientists, with at least 10 years experience: see s 196M of the VEA. Subsection 5AB(2) of the VEA defines “sound medical-scientific evidence” as follows:sound medical-scientific evidence, in relation to a particular kind of injury, disease or death, has the meaning given by subsection (2).(2)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. The effect of the Budget Measures Act was, subject to review of its determinations by the Specialist Review Council, to consign to the RMA, by its formulation of an SoP, the relating of particular kinds of injury or disease to the circumstances of operational service rendered by veterans for the purposes of the reasonable hypothesis test posited by s 120(3) of the VEA. Hitherto, the existence of such a relationship had been a matter for evidence at the time of assessment of a veteran’s claim or upon later review. The amendments made by the Budget Measures Act appear to have been responsive to an apprehension by Parliament of the possibility that, under the VEA as it then stood, an hypothesis supported only by idiosyncratic scientific views may have had to be accepted as reasonable. One might, with respect, have thought that the introduction of a requirement that the hypothesis be supported by sound medical-scientific evidence, as has come to be defined would itself have addressed that apprehension. As it is, for the apprehended flaw in the legislation as it earlier stood has been substituted not only an expectation that the RMA will remain continually receptive to the evolution of medical science and its ramifications for connecting conditions with the circumstances of service but also new scope for controversy in disputes as to the meaning of the plethora of determinations that the RMA has made. This case is one such dispute. The Tribunal (Reasons at para 52) concluded that, “the statement of the veteran that he had ‘a terrible anxiety attack’ when action stations were called on his first tour of duty and the entry by the veteran on the discharge medical examination form that he has ‘frequent severe depression’ is sufficient to point to … [an] hypothesis [connecting Mr Paddon’s generalised anxiety disorder and depressive conditions with the particular operational service he had rendered]”. Given those conditions, the Tribunal regarded the following SoP as relevant to its deciding whether there was an SoP that upheld that hypothesis:(a) SoP for Anxiety Disorder: Instrument No 101 of 2007; and(b) SoP for Depressive Disorder: Instrument No 27 of 2008.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

As a matter of first impression and with all due respect to the RMA, the language employed in the definition of “category 2 stressor” gives me pause for thought as to the extent to which the members of that authority appreciated that, in s 196B(2) of the VEA, the view described in that sub-section must be capable of being related to “operational service rendered by veterans”. That is because, viewed as a whole, the “negative life events” described in the definition of “category 2 stressor” seem to owe more to the experience of civilian life than what one might expect to be circumstances arising in “operational service rendered by veterans”. Note, for example, the references to “school” in contradistinction to “work” in the definition. There is a need, flowing from s 196B(2), to relate the view formed on the basis of sound medical-scientific evidence as to particular kinds of injury or disease to the forms of military service specified in this subsection when determining an SoP. Be this as it may, the task to hand is to decide the meaning of the definition which has come to be employed in the SoP having regard to the language adopted, the context in which it appears and the purpose of an SoP as evident from the VEA. More particularly, the task requires determining whether, for example, Mr Paddon’s witnessing a helicopter attack or the damage sustained by the USS Tom Green County and the AV Clive Steele could ever constitute “concerns in the work … environment” as that term is to be construed. The expression “concerns in the work … environment” has about it a euphemistic quality sometimes encountered, in my experience, in the language of contemporary sociologists or psychologists or even some public administrators. That is quite apart from the surrealism attending a conception of a war zone as a “work environment”. Further, read into the definition’s opening words, paragraph (c) is capable of introducing an element of circularity – “having concerns in the workplace, the effects of which are chronic in nature and cause the person to feel on-going … concern”. There are truly elusive qualities in the notion of having concerns that cause one to feel on-going concern Neither party pointed to any precedent illuminating the meaning to give to “concerns” in the context in which it appears in paragraph (c). Nor was it submitted that the word had any special, technical meaning in medical science. The Oxford Dictionary’s (Oxford English Dictionary, Online Edition, accessed 22 October 2010) definition of the word “concern” is divided as between the word as used in the context of a relation objective or subjective and as used in the context of a matter that concerns. It is the latter context in which the word is used in paragraph (c). Of the meanings given in that dictionary, meaning 7a strikes me as the most apt, “7. a. A matter or subject that affects or touches one, and that ought to engage one's active interest and attention”.