Re Greenough and Repatriation Commission
[2002] AATA 774
•6 September 2002
CATCHWORDS – VETERANS' AFFAIRS - veterans' entitlements – Statement of Principle revoked after claim lodged – whether claim should be considered by reference to Statement of Principle in force at time claim lodged or subsequent Statement of Principle - whether accrued right to have claim reviewed by reference to Statement of Principle in force at time of claim – decision affirmed.
Veterans' Entitlements Act 1986 ss. 5AB, 8, 9, 14, 17, 18, 19, 20, 31, 120, 120A, 120B, 135, 157, 175, 177, 196, 196B, 196C, 196D, 196E, 196F, 196G, 196W, 196Y, 196Z; Part II and Part IV
Acts Interpretation Act 1901 ss. 4, 6, 8, 46A, 48, 48A, 48B, 49 and 50
Social Security Act 1991
Social Security Act 1947
Compensation (Commonwealth Government Employees) Act 1971
Compensation Employees' Rehabilitation and Compensation Act 1988
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Gorton (2001) 33 AAR 370
Ogston v Repatriation Commission (1999) 86 FCR 578
Repatriation Commission v Thompson (2001) 32 AAR 514
Re Costello and Secretary, Department of Transport (1979) 2 ALD 934
Re Cirkovski and Secretary, Department of Social Security (1992) 15 AAR 55
Esber v Commonwealth of Australia and Another (1992) 106 ALR 577
Re Ogston and Repatriation Commission (1998) 52 ALD 392
Rodway v The Queen (1990) 169 CLR 515
Esber v The Commonwealth (1992) 174 CLR 430
Maxwell v Murphy (1957) 96 CLR 261
Kraljevich v Lake View and Star Ltd (1945) 70 CLR 647
Gartrell v Repatriation Commission [2000] FCA 1228
Repatriation Commission v Thompson [2000] FCA 341
Repatriation Commission v Gorton (2001) 33 AAR 370
DECISION AND REASONS FOR DECISION [2002] AATA 774
ADMINISTRATIVE APPEALS TRIBUNAL )
) S2001/210 & S2001/211
VETERANS' APPEALS DIVISION )
ReJEFFREY GREENOUGH
Applicant
AndREPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 6 September, 2002
Place: Adelaide
Decision:The Tribunal in so far as the decision of the respondent dated 24 August, 2000 and affirmed by a decision of the Veterans' Review Board dated 12 April, 2001 relates to a claim made by the applicant for generalised anxiety disorder, it is to be reviewed by reference to the Statement of Principle in Instrument No. 1 of 2000.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 13 June, 2001, the applicant, Mr Jeffrey Greenough, applied for review of three decisions of the respondent, the Repatriation Commission ("the Commission"). All related to claims made by Mr Greenough for a pension under the Veterans' Entitlements Act 1986 ("the Act") on the basis that he is incapacitated from a war-caused injury or war-caused disease. The first decision was dated 1 December, 1998 and refused Mr Greenough's claim dated 6 October, 1998 and based on his having suffered a personality change. The second and third decisions were dated 24 August, 2000 and, in so far as they are relevant to this case, refused his claims dated 1 November, 1999 for post traumatic stress disorder ("PTSD")/anxiety, alcohol dependence and irritable bowel syndrome. Those decisions were affirmed by a decision of the Veterans' Review Board ("VRB") dated 12 April, 2001. All decisions are set out in the documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") to which I have had regard.
THE ISSUE
The parties asked that only one issue be addressed in this case. That is whether Mr Greenough's claim based on generalised anxiety disorder should be considered by reference to the Statement of Principle ("SoP") in force at the time that he lodged his claim for PTSD, alcohol dependence and irritable bowel syndrome or to a subsequent SoP.
BACKGROUND
There was no disagreement between the parties as to the relevant facts in this case. In view of that and in light of the material in the T documents, I have made the findings of fact that I will set out in the following paragraphs.
Mr Greenough, who has operational service within the meaning of the Act, lodged his claim for lymphoma, PTSD/anxiety and alcohol dependence on 1 November, 1999. At that time, there was a SoP in force in relation to generalised anxiety disorder. It was found in Instrument No. 48 of 1994 as amended by Instrument No. 275 of 1995 ("SoP 48"). On 28 January, 2000, the RMA revoked SoP 48 and determined a SoP in its place by means of Instrument No. 1 of 2000 ("SoP 1").
On 24 August, 2000, the Commission refused Mr Greenough's claim in respect of PTSD on the basis that "the condition is not present nor is any other psychiatric condition that would answer the claim for this condition" (T documents, pages 127).
Mr Greenough sought review of the Commission's decision by the VRB on 28 November, 2000 (T documents, pages 7-14). It considered the matter in terms of a generalised anxiety disorder and was not satisfied that Mr Greenough was suffering from that condition. Despite having reached that conclusion and for completeness of its consideration, the VRB considered whether the material raised any of the factors in what it described as the "relevant Statement of Principles" but did not otherwise identify (T documents, page 13). The VRB found that it did not and consequently concluded that the material did not raise a reasonable hypothesis connecting his service with his generalised anxiety disorder.
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."
CONSIDERATION
The submissions of both Mr Jolly and Mr Hanks centred on a line of recent authorities in the Federal Court concerning the identification of the SoP to be applied in particular proceedings. Mr Jolly submitted that the facts pertaining to the SoP are exactly the same as those in Repatriation Commission v Keeley (2000) 98 FCR 108 (Lee, Cooper and Kiefel JJ). As the Act confers a benefit, a claimant for that benefit is entitled to have his or her entitlement determined by reference to the SoP in force at that time. The case of Repatriation Commission v Gorton (2001) 33 AAR 370 (Heerey, Emmett and Allsop JJ) appears to challenge that proposition but the factual situation with which the court was concerned was almost the reverse of that considered in Keeley.
Relying on the cases of Ogston v Repatriation Commission (1999) 86 FCR 578 (Burchett, Branson and RD Nicholson JJ) and Repatriation Commission v Thompson (2001) 32 AAR 514 (Drummond, Whitlam, Emmett JJ), Mr Hanks submitted that lodgement of a claim does not give rise to a right to have a claim determined by reference to the law in force at the time. Section 120A(3) of the Act requires the Commission to have regard to the SoP applying at the date of its decision (Gorton). As the Tribunal must decide whether the Commission's decision as varied by the VRB was the correct or preferable decision, it must review the decision by reference to the law then in force (Keeley). The Tribunal is also required to consider a claim by reference to the SoP in force at the time of its review (Gorton). If the current SoP does not uphold the hypothesis, the Tribunal should consider it by reference to the SoP in force at the time the Commission made its decision (Gorton).
Before considering the authorities referred to by Mr Jolly and Mr Hanks, I feel that it is important to begin with the principles that the Tribunal generally applies where there has been a change in the law. I feel that it is important to keep sight of the general principles for it is against the background of such principles that the cases of Keeley, Ogston, Gorton and Thompson have been decided. If the general principles are lost sight of, there may be a tendency to resolve issues by reference to factual situations rather than principles. In that regard, I note that I do not consider that the facts of this case are on all fours with those in Keeley. This case is concerned with a situation in which one SoP was in force at the time Mr Greenough made his claim and another was in force when the Commission made its decision. In Keeley, one SoP was in force when the Commission made its decision and another was in force when its decision was reviewed by the Tribunal. While the two cases are both concerned with one SoP replacing another, the timing of those replacements is crucial to the outcome of each case.
The general principles were considered by the Tribunal in Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 (Senior Member Hall and Mr CCH Thompson and Mr Marsh, Members). It said that, in determining the law to be applied, regard must be had to the nature of the decision under review and the provisions of the legislation by which any change in the law is effected and continued:
" The nature of the decision under review may require the Tribunal to consider the facts and circumstances before it in the light of the law at some anterior date in order to form an opinion as to the accrued rights or liabilities of the applicant (see, for example, s 132 of the Customs Act 1901 as to liability for customs duty). A subsequent change in the law will not affect the matter unless it is expressed to apply retrospectively (Quilter v Mapleson, (1882) 9 QBD 672). …
But where the nature of the decision under review does not involve a consideration of accrued rights or liabilities but rather involves an investigation whether the applicant has a present entitlement to the grant of a right or privilege, we have concluded that, unless the amending law otherwise provides we should apply the law as amended as at the date of our decision. We would draw some support for this conclusion from the decision of the Full Court of the Supreme Court of Victoria in Robinson v City of Nunawading [1973] VR 819. The question in that case was whether an applicant, who had applied to the council for approval for a sub-division before an amending statute came into effect, had a right to have the application determined according to the law as it stood at the time when the application was lodged. …" (pages 943-44)
Regard must also be had to s. 8 of the AI Act, which provides:
"Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:
(a)revive anything not in force or existing at the time at which the repeal takes effect; or
(b)affect the previous operation of any Act so repealed, or anything duly done or suffered under any Act so repealed; or
(c)affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or
(d)affect any penalty forfeiture or punishment incurred in respect of any offence committed against any Act so repealed; or
(e)affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid;
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 had not been passed."
The principles in Costello's case have been applied in many cases in the Tribunal including those concerned with claims for benefits and pensions under legislation such as the Social Security Act 1991 and its predecessor, the Social Security Act 1947, and under the Act. It has been frequently held, as was said in Re Cirkovski and Secretary, Department of Social Security (1992) 15 AAR 55 (O'Connor J, President):
"... a claimant for a pension or benefit has an accrued right to that pension or benefit, although that right remained inchoate or contingent until determined. Accordingly, the legislation to be applied in such circumstances in determining eligibility for pension or benefit is the legislation in force at the date of the making of the claim." (page 61 and see also Re Reilly and Secretary, Department of Social Security (1987) 7 AAR 130, Senior Member Hallowes and Mr Brewer and Dr Sutherland, Members, and Re Panke and Director-General of Social Services (1981) 4 ALD 179 at 197, Davies J, President, Mr Hall, Senior Member and Dr Glick, Member)
The issue of the law to be considered by the Tribunal has been considered by the High Court in Esber v Commonwealth of Australia and Another (1992) 106 ALR 577 (Mason CJ, Deane, Toohey and Gaudron JJ, Brennan J dissenting). The Court was concerned with the applicability of redemption provisions in the Compensation (Commonwealth Government Employees) Act 1971 ("1971 Act") after they had been repealed by the Compensation Employees' Rehabilitation and Compensation Act 1988 ("1988 Act").
The majority considered first the transitional provisions of the 1988 Act and concluded that those provisions ensured that Mr Esber's entitlement to redemption was to be determined in accordance with the 1971 Act. Although it acknowledged that this was sufficient to decide the case, the majority went on to consider s. 8 of the AI Act and whether or not Mr Esber had an accrued right under the 1971 Act.
The delegate of the Commissioner for Compensation had disallowed Mr Esber's claim for redemption because he was not satisfied that certain requirements had been met. At the time of the repeal of the 1971 Act, Mr Esber's application to the Tribunal was out of time and the extension had not yet been granted. The majority said that he had, "... at the time of the repeal of the 1971 Act, a right to have his application to the tribunal determined pursuant to Part V of the 1971 Act." The majority went on to say:
"... at the least, the appellant had, at the time of the repeal of the 1971 Act, a right to have his application to the Tribunal determined pursuant to Pt V of the 1971 Act. It may not be possible to say of a person in the position of the appellant that he had a right to a favourable determination from the Tribunal. The Tribunal was required to stand in the shoes of the decision-maker (the delegate) and arrive at its own decision (Drake v Minister for Immigration (1979) 24 ALR 577 at 589). In Drake, Bowen CJ and Deane J said of the Tribunal (at 589):
`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.'
But that is not to the point here. If it be assumed that the appellant did not have a right to redemption in the sense first discussed [i.e. a right to redemption of weekly payments within the meaning of section 8 of the Acts Interpretation Act 1901], he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope JA in NSW Aboriginal Land Council v Minister Administering Crown Lands (Consolidation) Act and Western Lands Act (1988) 14 NSWLR 685 at 694:
`The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.'
Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely `a power to take advantage of an enactment' (Mathieson v Burton (1971) 124 CLR 1, per Gibbs J at 23; and see Robertson v City of Nunawading [1973] VR 819). This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act." (page 583)
The majority's judgement in Esber did not alter the matters that must be considered. The Tribunal must look to the repealing legislation in order to determine whether there are transitional provisions or whether it is intended to operate retrospectively. If there are no such provisions, there must still be a consideration of the repealed legislation to determine whether a right has accrued under that repealed legislation.
I will turn now to the authorities to which Mr Jolly and Mr Hanks referred. 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)
Her Honour decided that Mrs Ogston's claim had to be decided by reference to the SoP that had subsequently been determined.
An appeal against that decision was dismissed (Ogston v Repatriation Commission (1999) 86 FCR 578). 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 582)
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 was concerned with a different factual situation in Keeley. One SoP had been taken into account by the Commission in making its decision. Arguably, that SoP upheld an hypothesis linking the late Mr Keeley's death with his operational service. By the time the Tribunal reviewed that decision, it had been replaced with another. It was common ground between the parties that the hypothesis was not consistent with that SoP. The issue for the court's consideration was whether the initial or subsequent SoP should be taken into account in the review by the Tribunal. 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 that 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.)" (page 121)
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." (page 121)
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." (page 122)
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. " (page 123)
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 Pedersen 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." (page 130-131)
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." (page 132)
The Full Court of the Federal Court considered both the Ogston case and the Keeley case 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 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)
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."
In Repatriation Commission v Gorton, (2001) 33 AAR 370 (Heerey, Emmett and Allsop JJ), the Full Court considered a situation in which the SoP in force at the time the Commission made its decision was replaced by another SoP with a less onerous criterion. Having considered Keeley and Thompson, Heerey J, with whom Emmett J concurred, stated that the system of SoPs established by the Act is intended to operate in the following way:
"… Assume an SoP in force at the time of the claim is revoked by another SoP which is in force at the time of the AAT decision. The starting point is that the AAT must consider the reasonableness of the hypothesis by reference to the SoP which 'is in force': s 120A (3), see s 43 AAT Act. If the current SoP 'upholds' the claimant's hypothesis then the AAT moves, pursuant to s 120(1), to consider whether it has been disproved beyond reasonable doubt.
If, however, the current SoP does not uphold the hypothesis, the claimant may then contend, pursuant to Keeley, that he or she has an accrued right under the earlier SoP. If that contention is accepted then again the hypothesis has to be disproved beyond reasonable doubt under s 120(1).
The claim for a pension under s 13 is in respect of death which was war-caused or incapacity from a war-caused injury or disease. The claim is not in respect of death or incapacity based on any particular SoP or on any particular characterisation of a medical condition or cause of death. Keeley and the present case concern SoPs which are sequential in point of time or, so to speak, in a vertical relationship to each other. However, there may well be in respect of any particular claim, horizontally applicable SoPs. In respect of the one death or disease or injury a claimant is entitled to advance more than one hypothesis based on more than one SoP. As already discussed, SoPs operate as delegated legislation to determine conclusively in relation to a particular disease what factors can constitute a reasonable hypothesis. If at the time of claim a claimant could raise one hypothesis consistent with the factors in that SoP, the capacity to rely on that hypothesis is a right which a later revoking SoP does not affect because an intention to do so does not appear: AI Act s 50." (pages 380-381)
Allsop J considered that:
"The nature, purpose and origins of SoPs and the terms of subs 120A(3), especially the phrase 'is in force', signify to me a parliamentary intention that only the current SoP is relevant when the Commission or the Tribunal (the latter by reason of a review under s 175 of the Act and s 43 of the Administrative Appeals Tribunal Act 1997 (Cth) (AAT Act)) is addressing the matter." (page 384)
Despite his view, Allsop J reflected that the issues were those upon which minds might differ. Therefore, notwithstanding his own views and recognising that others had expressed a different view, he considered that Keeley should be followed.
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, Thompson and Gorton:
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);
6.notwithstanding any accrued rights, an applicant is entitled to have his or her entitlement assessed by reference to the SoP in force at the date of the Tribunal's review of the Commission's decision (Gorton);
7.the order in which the Tribunal is to approach the SoPs is:
first consider the claim by reference to the SoP in force at the date of the Tribunal's decision;
if the consideration is favourable to the applicant, that is an end of the matter; and
if the consideration is not favourable to the applicant, consider the claim by reference to the SoP in force at the date of the Commission's determination (Gorton).
Applying these principles to this case, Mr Greenough did not accrue a right to have his claim determined according to the state of affairs prevailing at the time that he lodged his claim. That is to say, he did not accrue a right to have his claim determined according to SoP 48. The Commission was obliged to consider his claim by reference to SoP 1 that was in force at the time that it made its determination. Mr Greenough has a right to have the Commission's decision reviewed first by the VRB and then by this Tribunal. In reviewing the Commission's decision, the Tribunal must have regard to SoP 1 which is now in force. It may not have regard to SoP 48 which was revoked before the Commission made its decision.
For the reasons I have given, I have decided that:
in so far as the decision of the respondent dated 24 August, 2000 and affirmed by a decision of the Veterans' Review Board dated 12 April, 2001 relates to a claim made by the applicant for generalised anxiety disorder, it is to be reviewed by reference to the Statement of Principle in Instrument No. 1 of 2000.
I certify that the sixty-one preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President),Sgd. P. Paczkowski
Signed: …………………………………..
Paul Paczkowski AssociateDates of Hearing 29 July, 2002
Date of Decision 6 September, 2002
Counsel for the Applicant Mr Jolly
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr Hanks
Solicitor for the Respondent Australian Government Solicitor
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