Re Reading and Repatriation Commission

[2000] AATA 841

CATCHWORDS – REPATRIATION COMMISSION – widow's pension – whether smoking levels consistent with statement of principles (SoP) requirements – which SoP to apply – consideration of in what circumstances rights accrue – application of earlier less beneficial SoP - decision affirmed.

Veterans' Entitlements Act 1986 – Ss 5AB, 6, 7, 8, 13, 120, 196B

Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) ALR 30; (1992) 66 ALJR 753; (1992) 29 ALD 1
Byrnes v Repatriation Commission (1993) 116 ALR 210; (1993) 117 CLR 564; (1993) 67 ALJR 805; (1993) 18 AAR 1; (1993) 30 ALD 1
Deledio v Repatriation Commission (1997) 47 ALD 261; (1997) 25 AAR 396
Gartrell v Repatriation Commission [2000] FCA 1228 (Whitlam, Lindgren and Gyles JJ)
Ogston and Repatriation Commission, unreported, 1 April, 1999, NG 773 of 1998)
Re Ogston and Repatriation Commission (1998) 27 AAR 176
Re Zoarder and Secretary, Department of Social Security (1998) 26 AAR 342
Repatriation Commission v Deledio (1998) 27 AAR 144; (1998) 49 ALD 193
Repatriation Commission v Keeley (2000) 31 AAR 150, Lee, Cooper and Kiefel JJ)

DECISION AND REASONS FOR DECISION [2000] AATA 841

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q1999/91
VETERANS' APPEALS DIVISION  )

Re                  MAURINE LILITH READING

Applicant

And                REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  Miss S A Forgie (Deputy President)
  Captain E T Keane (Member)

Date   20 September,  2000

Place  Brisbane

DecisionThe Tribunal affirms the decision of the respondent dated 2 November, 1995 and affirmed by a decision of the Veterans'

Review Board dated 6 November, 1998.

S A FORGIE
  Deputy President

REASONS FOR DECISION

On 14 January, 1999, the applicant, Mrs Maurine Lilith Reading, applied for review of a decision of a delegate of the respondent, the Repatriation Commission ("Commission") dated 2 November, 1995.  That decision, which was affirmed by a decision of the Veterans' Review Board ("VRB") on 6 November, 1998, refused to grant Mrs Reading a widow's pension.  The Commission's delegate and the VRB refused to do so on the basis that the death of her husband, Mr William George Reading, was not war-caused within the meaning of the Veterans' Entitlements Act 1986 ("the Act").

1. At the hearing, Mrs Reading was represented by her solicitor, Mr Harding, and the Commission by its advocate, Mr Williams. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with an opinion dated 23 September, 1999 by Dr Peter Grant, a report by Dr Marshall dated 19 August, 1970, reports dated 12 and 13 July, 1994 by Dr David Colquhoun, a report dated 11 July, 1994 by Dr John Wicks, a report dated 5 February, 1999 by Dr Peter Lewis, a report from the Diabetes clinic dated 28 July, 1982 and a medical history sheet dated 10 July, 1970.  Oral evidence was given by Mrs Reading in support of her case together with her nephew, Mr Lindsay Wilken.

THE ISSUE

1. The issue in this case is whether the late Mr Reading's death was war-caused within the meaning of the Act. The hypothesis proposed on behalf of Mrs Reading was: her husband increased his smoking due to his operational service during World War II; he maintained his smoking at the same level until 1955 and thereafter at a reduced level until 1966; his smoking led to his suffering from diabetes mellitus; his diabetes mellitus led to his suffering from ischaemic heart disease; and his ischaemic heart disease was the cause of his death.

BACKGROUND

1. We find that the late Mr Reading was born on 11 November, 1902.  While at Brisbane Grammar School, he belonged first to the junior cadets and then to the senior cadets.  After World War I, and when he was old enough, he volunteered to join the 2nd Light Horse Regiment.  In September, 1939, Mr Reading was called up for full time duty as a militia adjutant of the 2/14th Light Horse Regiment. 

1. In approximately February, 1940, Mr Reading enlisted in the 2nd AIF.  He was appointed O/C Squadron 2/7 Australian Division Cavalry Regiment at Redbank.  His duties consisted of organisation, training and administration.  On 15 June, 1940, he was promoted to Major in the 2nd AIF.  He saw service in the Middle East and New Guinea.  His operational service extended from 25 July, 1940 to 2 December, 1946.

1. In 1947, Mr Reading met his future wife and they married in 1951.  Mr Reading died on 15 July, 1994 from ischaemic heart disease and aortic stenosis. 

THE EVIDENCE

1. Mrs Reading said that her husband had told her that he had smoked during the war and that he had done so as all of his friends smoked.  She said that she had met her husband's mother, who was "dead against" his smoking.  Mrs Reading herself hated his smoking.  At first, she said that when she told him how she felt about it, he gave up smoking.  Later she said that he had given up smoking when his diabetes was diagnosed.

1. In a smoking questionnaire dated 22 August, 1995, Mrs Reading stated that her husband had smoked four ounces of tobacco per week.  She did not know when he had started to smoke.  He stopped smoking in 1955 (T documents, pages 41-42).  In a file note made by a claims assessor on 13 September, 1995, it is recorded that Mrs Reading said that her husband had smoked socially before the war but not heavily as his mother would have discouraged him.  He was "moderate in everything".  She believed that he had increased his smoking during the war due to his responsibilities and the stressful situations which he faced especially during the New Guinea campaign.  His first marriage had broken up when he had returned from the Middle East and that would have added to his levels of stress.  She recalled that Mr Reading had not been a heavy smoker when she met him in 1947 after his discharge.  He moderated his smoking for her and lessened his smoking considerably in 1955.  Mr Reading stopped smoking completely after he was diagnosed with diabetes in 1966 (T documents, page 49). 

1. In a cigarette smoking questionnaire completed by Mrs Reading on the same day i.e. 13 September, 1995, she wrote that she had not known Mr Reading at the time but thought that he smoked when he served with the 2nd Light Horse Regiment.  Her feeling was that he smoked more during war service.  When she met him in 1947, he smoked either packet or tailor made cigarettes.  Sometimes, he rolled his own.  He stopped permanently in 1966 when he was diagnosed with diabetes. (T documents, pages 50-51)

1. In a letter dated 26 October, 1998, Mrs Reading said that her husband had stopped smoking completely in 1955 when he was diagnosed as a diabetic (T documents, page 65).  At the hearing on 6 November, 1998, Mrs Reading's advocate advised the VRB that Mr Reading smoked a packet of cigarettes a day and a pipe each day until 1955 when he reduced his smoking to 2 ounces of tobacco each week (T documents, page 71).

1. Mr Wilken said that he was Mrs Reading's nephew and that he had known Mr Reading.  He had first met Mr Reading when he and his aunt had started going out together shortly after the war.  At the time, Mr Wilken would have been 13 or 14 years of age.  His family and his aunt's family both lived in Toowoomba and they saw a lot of each other.  When his family moved away from Toowoomba, he boarded with Mrs Reading's family for four years until 1952, while he went to school.  Mr Reading visited the house every Sunday and would come to the house on other nights to take Mrs Reading out.  In 1952, Mr Wilken said that he lived with Mr and Mrs Reading as Mrs Reading's father had died.  Her mother and two sisters also went to live with Mr and Mrs Reading at this time.

1. Mr Wilken said that Mr Reading smoked a pipe.  His recollection was that he smoked in moderation.  Mr Reading, he said, certainly smoked when he visited the house before Mr and Mrs Reading were married.  When Mr Reading visited for Sunday dinner, Mr Wilken said that he was always smoking a pipe when the family played cards after the meal.  After Mr and Mrs Reading were married and before he lived with them, Mr Wilken said, he did not see as much of them.  Occasionally, they would all go to the pictures.  Mr Reading would always have a cigarette at the interval.  When he and Mr and Mrs Reading visited his parents on one occasion, Mr Wilken recalled that Mr Reading and his father smoked.  When he lived with them, he noticed that Mr Reading would smoke cigarettes occasionally but he understood that he was trying to give it up.  He could not recall Mr Reading's smoking inside the house but he could recall his smoking outside.  At that time, Mr Reading did not smoke a pipe. 

1. Mr Wilken moved to Brisbane in 1955 and did not see as much of Mr and Mrs Reading after that but would see them five or six times a year.  He could recall Mr Reading's occasionally smoking a cigarette.  The last time he could recall Mr Reading's having a cigarette was early in the 1960s.  He could recall that as it was at the time that his own father had given up smoking.  Mr Reading was not a constant smoker at the time.  He said that Mr Reading was a depot supervisor with the Wheat Board and was regularly away from home from Monday to Friday.  There was the opportunity for him to smoke when he was away from home but Mr Wilken could not recall that he did.

1. Mr Wilken said that smoking at home was "taboo" for Mr Reading.  He knew that because Mrs Reading had told him that she had made Mr Reading's giving up smoking a condition of their marriage as she did not like the smell.  Mr Reading had not given it up immediately but had phased it down.  Mr Wilken's memory was that Mr Reading smoked the "occasional cigarette" and put it no higher than that.

LEGISLATIVE FRAMEWORK

1. Section 13(1) of the Act provides that, subject to the Act, the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran if the veteran's death was war-caused. The amount of that pension and the terms under which it is payable are determined by the Act.

Provisions relevant to a consideration of whether the conditions are war-caused

1. A veteran's death is taken to have been 'war-caused" if it meets one of the criteria specified in s. 8. In so far this case is concerned, only s. 8(1)(b) is relevant.  It provides that:

"… the death of the veteran shall be taken to have been war-caused if:

(a)       …

(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …"

1. The expression "eligible war service" is defined in s. 7 of the Act. For the purposes of this case, it is sufficient to note that s. 7(1)(a) provides that a person who has rendered operational service is taken to have rendered eligible war service while he or she was rendering operational service. There is no question in this case that, as a member of Australia's Defence Force, Mr Reading rendered operational service, and so eligible war service, while he rendered continuous full-time service outside Australia during World War II. That is the effect of s. 6A of the Act.

1. The standard of proof which must be used in determining whether or not a veteran's death is taken to be war-caused is set out in s. 120.  That section sets out two standards but, as Mr Reading had operational service, only that in s. 120(1) is relevant.  It provides:

"Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination."

1. Section 120(3) deals with the situation in which the Commission must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining, among other matters, that the death was war-caused.  It provides:

"In applying subsection (1) ... in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

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

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

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

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

1. Section 120(3) must be read with s. 120A of the Act. In so far as it is relevant, it provides 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." (s. 120A(3))

1. 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 particular death or injury in issue.

1. The RMA must prepare a SOP in situations prescribed in the Act. In respect of cases to which ss. 120(1) and (3) apply, it has the following role:

"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 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))

1. 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:

(b)it arose out of, or was attributable to that service;"

1. "Sound medical 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."           

1. The manner in which the provisions of ss. 120(1) and (3) inter-related prior to the introduction of SoPs was considered by the High Court in the cases of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 116 ALR 210. In Byrnes, Mason CJ, Gaudron and McHugh JJ summarised the approach to be adopted in applying those sub-sections:

"The position may be summarised as follows:

(1)       First, subs(3) of s120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable  hypothesis is established, sub-s. (1)of s.120 is applied The claim will succeed unless:

(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or

(b)the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis." (page 215)

1. In relation to the first step, their Honours had earlier said:

"The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the commission must raise some fact or facts which give rise to the hypothesis.  When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable.  In Bushell, Mason CJ, Deane and McHugh JJ said:

'… a hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature." [Commissioner for Government Transport v Adamcik (1961) 106 CLR 292, at 306] Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous'.

In some cases, the hypothesis may assume the occurrence or existence of a 'fact'.  That itself does not make the hypothesis unreasonable.  So, in the present case, the appellant's hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the commission  did not reveal the extent of the injury which he then suffered." (page 214)

1. The SoPs were introduced after the High Court's judgement had been handed down.  The manner in which ss. 120(3) and (4) inter-relate with the provisions of a SOP was considered by Heerey J in Deledio v Repatriation Commission (1998) 47 ALD 261. An appeal from his judgement was dismissed by the Full Court of the Federal Court (Repatriation Commission v Deledio (1998) 27 AAR 144, Beaumont, Hill and O'Connor JJ). After considering the structure of the Act and its various amendments and the judgements of the High Court in Bushell v Repatriation Commission and Byrnes v Repatriation Commission, his Honour concluded:

"Therefore when s 196B(2) says a factor 'must ... exist' and 'must be related to service', it is not interfering with the functions of ss120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:

(i)        contrary to proved or known scientific facts,

(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or

(iii)since (1994) inconsistent with (not upheld by) an applicable SoP.

If the hypothesis is reasonable the claim will succeed unless:

(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or

(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.

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

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

"… we would restate the course which the Tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:

1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11) of the 1986 Act. If no such SoP is in force, the hypothesis will be taken not be reasonable and, in consequence, the application must fail.

3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by s 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not be 'reasonable' and the claim will fail.

4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved." (pages 159-160)

The Statements of Principle

1. At the time the Commission made its decision on 2 November, 1995, SoP 85 of 1995 as amended by SoP 360 of 1995 ("SoP 85") applied in relation to ischaemic heart disease and SoP 174 of 1995 ("SoP 174") applied in relation to diabetes mellitus.  By the time the VRB reviewed the Commission's decision, those SoPs had been revoked and replaced by SoP 140 of 1996 in relation to ischaemic heart disease and SoP 47 of 1996 in relation to diabetes mellitus.  On 22 January, 1997, the VRB had adjourned its consideration of Mrs Reading's application for review as it had been advised that the RMA intended to carry out formal investigations into ischaemic heart disease.  The SoPs in relation to both ischaemic heart disease and diabetes mellitus were then varied or revoked and replaced on at least one occasion after the VRB completed its consideration and before the matter was heard in the Tribunal.  At the time of the hearing, SoP 38 of 1999 ("SoP 38") applied in relation to ischaemic heart disease and SoP 82 of 1999 ("SoP 82") applied in relation to diabetes mellitus.

1. The Federal Court has now considered several cases in which SoPs have been varied or revoked and replaced at various times between the time the Commission made its initial decision and subsequent reviews of that decision or a SoP has been made for the first time after the initial decision was made.  The first of these cases was Re Ogston and Repatriation Commission (1998) 27 AAR 176. In that case, Mrs Ogston had claimed a war widow's pension after 1 June, 1994 but before a SoP had been made in relation to the disease from which her husband had died. A SoP was subsequently made and the Commission applied it in refusing her claim. The then President of the Tribunal, Mathews J, decided that the Commission was bound to apply the SoP in those circumstances. An appeal against that decision was dismissed (Ogston and Repatriation Commission, unreported, 1 April, 1999, NG 773 of 1998) and a subsequent application for special leave to appeal to the High Court was refused.

1. The issue of whether the SoP taken into account by the Commission or a subsequent SoP should be taken into account in the review by the Tribunal was considered by the Full Court of the Federal Court in Repatriation Commission v Keeley (2000) 31 AAR 150, Lee, Cooper and Kiefel JJ. The Court concluded that the SoP in force at the time the Commission made its decision should be applied in subsequent reviews. In the Keeley case, the earlier SoP was more beneficial to Mrs Keeley's case than the SoP which replaced it.  The contrary is the situation in this case.  The SoP now in force in relation to diabetes mellitus is more beneficial to Mrs Reading's case than the earlier SoP which was in force when the Commission made its decision. 

1. An application for special leave to appeal against the Full Court's judgement was lodged in the High Court in May, 2000 but has yet to be heard.  We had thought to wait until the application had been heard and determined before proceeding to give our decision in this matter but note that the Full Court of the Federal Court has since given its judgement in Gartrell v Repatriation Commission [2000] FCA 1228 (Whitlam, Lindgren and Gyles JJ). In that case, the Full Court considered both the Keeley and Ogston cases.  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.

1. The Federal Court in Gartrell considered whether Keeley and Ogston are consistent with each other:

"          The respondent also points out that the decision in Keeley is consistent with, and even depends upon, the correctness of Ogston.  In Keeley (as here) there was no Statement of Principles in existence at the time of the claim.  The first Statement of Principles was promulgated prior to the refusal of the claim by the Commission, and did not rule out success in the claim.  The second Statement, which did, was promulgated after affirmation of the refusal by the Veterans' Review Board but prior to the decision of the Administrative Appeals Tribunal.  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.

Thus, the position is that there is a recent, and reasoned, decision of the Full Court directly in point.  It, in turn, upheld the decision of Mathews  J sitting as a member of the Administrative Appeals Tribunal.  The Full Court decision which we are invited to follow in preference to it is, in truth, in accordance with it.  The decision in Ogston was unanimous.  Special leave to appeal to the High Court from it was refused.  It cannot be said to be clearly wrong.  Indeed, it appears to accord with the usual principles applicable in situations of this kind.  We have no proper course other than to follow Ogston.
           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."

1. In reconciling the Ogston and Keeley cases we would also observe that s. 120B(2) of the Act provides that:

"If 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, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a)has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death;

(b)has declared that it does not propose to make such a Statement of Principles."

In requiring that the SoP be applied by the Commission, it cannot be said that any right accrues to an applicant simply by virtue of there being no SoP in force when he or she lodged his or her claim.

1. The Federal Court has not considered the particular situation with which we are concerned.  The situation in the Keeley case has the closest alignment in that a SoP was in existence at the time of the lodgement of the claim and was subsequently varied.  Lee and Cooper JJ in the Keeley case appear to have assumed that the law as it stood when the right was accrued would be more beneficial than a subsequent amendment.  This would seem to be inherent in the passage in which they said:

"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 per Mason CJ, Deane, Toohey, Gaudron JJ at 440 – 441.)" (page 165)

1. Kiefel J considered the matter from a different point of view which 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 connexion between death and service as a minimum, in each case (see Maxwell v Murphy, 278).  It cannot therefore be described as relating only to procedure (see Pederson v Young (1964) 110 CLR 162, 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, 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, 41).

The repeal of the first SoP affected the content of Mrs Keeley's right.  It follows, in my view, that s 50 AIA operates, subject to the further question whether any intention to the contrary is disclosed by the second SoPs as the repealing provision." (pages 172-173)

1. 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 connexion. 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 AIA [Acts Interpretation Act 1901] requires.  His Honour the primary Judge considered that the underlying view, that a new law is considered to be an improvement on the old, could be applied to virtually all amending or repealing legislation.  Further, the need for consistency of decisions of lay tribunals is equally met by applying the SoP existing at the time of the primary decision.  I respectfully agree." (pages 173-174)

2. On the reasoning of all of their Honours, it would seem that we should consider whether SoP 38 and SoP 82 have indicated an intention that SoP 85 and SoP 174 do not apply.  Before we do that, we will set out the provisions of each of the SoPs that are relevant to Mrs Reading's case. 

1. In relation to those relating to ischaemic heart disease, there has been no change.  The factor set out in both SoP 85 and SoP 38 and relevant in this case was:

"… the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of that service are:
…

(b)the presence of diabetes mellitus before the clinical onset of ischaemic heart disease; …" (clause 1(b) and see also clause 5(b) of SoP 38)

1. In relation to diabetes mellitus, there has been a significant change.  Of the factors set out in SoP 174, factor 1(c) was relevant.  It stated that:

"… the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting diabetes mellitus or death from diabetes mellitus with the circumstances of that service are:
…

(c)in relation to type 2 diabetes mellitus, smoking at least 10 cigarettes per day for at least 20 years, and continuing to do so within 10 years immediately before the clinical onset of diabetes mellitus; or

…"

1. SoP 82, which reflected the earlier SoP 47 of 1996 which it revoked and replaced, stated that the factor that must exist was:

"(c)     in relation to type 2 diabetes mellitus, smoking at least 10 pack years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of diabetes mellitus, and where smoking has ceased, the clinical onset has occurred within 10 years of cessation;" (clause 5(c))

1. The expression "pack years of cigarettes or the equivalent thereof, in other tobacco products" is defined in clause 8 to mean:

"… a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes (being the 'standard' cigarette pack contents) per day for a period of one calendar year, or 7300 cigarettes.  One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight.  One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3kg of smoking tobacco by weight.  Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;"

1. Assuming for the moment that there is material pointing to the hypothesis put forward on behalf of Mrs Reading and it is not contrary to proved or known scientific facts and not obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous, it must also be consistent with any applicable SoP before it can be said to be a reasonable hypothesis. 

1. If SoP 174 is the applicable SoP, the hypothesis cannot be said to be consistent with it.  There is no material pointing to Mr Reading's having smoked 10 cigarettes per day within 10 years immediately before the clinical onset of diabetes mellitus.  The material points to his diabetes being diagnosed in 1966 at the earliest.  That material is found in the medical officer's report dated 13 July, 1970 (Exhibit 5), a report from Dr Marshall, physician (part of Exhibit 2), and a report from a medical officer dated 30 June, 1982 (Exhibit 3).  It is also found in Mrs Reading's evidence that her husband stopped smoking in 1966 and that he stopped smoking when he was diagnosed with diabetes. 

1. The material points to his stopping smoking in 1966 and to his having decreased his smoking by 1955.  The only available material as to the level of his decreased smoking is the statement of Mrs Reading's then advocate at the hearing by the VRB.  That is that he smoked 2 ounces of tobacco.  SoP 174 does not refer to tobacco but to "at least 10 cigarettes per day" for the requisite period of time.  The VRB took the view that it could consider only cigarettes and not the equivalent of 10 cigarettes in tobacco smoked in another form.  We agree with its conclusion and do so on the basis of the precise formulation in factor (b) in SoP 174 and also the RMA's choice on other occasions to adopt a broader formulation. We refer, for example, to factor (e) of SoP 85, also made in 1995, which refers to "smoking at least five cigarettes per day or the equivalent thereof" for the requisite period (clause 1, emphasis added).  It follows that there is no material pointing to Mr Reading's smoking at least 10 cigarettes per day in the ten years preceding 1966.

1. Should we be incorrect in that interpretation, we note that 2 ounces of tobacco each week is not the equivalent of 10 cigarettes per day.  SoP 82 prescribes, in effect, that 20 tailor made cigarettes equates to 7.3 kilogrammes of smoking tobacco by weight each year (see paragraph 38 above).  Consequently, 10 tailor made cigarettes equate to 3.65 kilogrammes each year.  Two ounces of tobacco each week for a year equates to 104 ounces or 6.4 pounds or 2.95 kilogrammes each year.  It follows that the material does not point to Mr Reading's having smoked an amount that is consistent with the minimum requirement set out SoP 174.

1. If SoP 82 were the appropriate SoP to apply, the hypothesis would be consistent with it.  That is so because of two important changes in the factor.  The first is that it is expressed now in terms of "10 pack years of cigarettes or the equivalent thereof" (emphasis added).  The second is that the smoking need not be considered on a daily habit but on the basis of a person's cumulative smoking over an indefinite period provided the clinical onset of diabetes mellitus occurred within 10 years of his or her ceasing to smoke.  As a pack year equates to 7.3 kilogrammes of smoking tobacco each year, 73 kilogrammes of smoking tobacco must have been smoked by Mr Reading before he gave it up in 1966. 

1. The material points to Mr Reading's having smoked 4 ounces of tobacco each week from 1947 up to 1955 and 2 ounces thereafter.  It points to his having increased his smoking during the war from his earlier habit.  There is no material pointing to its having decreased after the war and before 1955.  The material, then, points to his having smoked the equivalent of 5.9 kilogrammes each year for a 15 year period from 1940 until 1955 i.e. 88.5 kilogrammes.  It points to his having smoked 2.95 kilogrammes each year for an 11 year period from 1955 until 1966 i.e. 32.45 kilogrammes.  For the whole period from 1940, the material points to his having smoked 120.95 kilogrammes.  This exceeds the requirement in SoP 82.

1. Does the fact that the later SoP 82 is more beneficial to Mrs Reading's case than the earlier SoP 174, mean that there has been shown to be an intention that it apply rather than that which applied when she made her claim?  We do not think that it does.  The only difference between the situation in this case and that in Keeley is that the outcome is more beneficial to the claimant for the person.  The other factors taken into account in Keeley remain the same. That is to say, the scheme of the Act and the need for consistency of decision making remain the same. There has been a change in the claimants' substantive right although, on this occasion, the change has been to lower the bar to the remedy.

1. We do not consider that fact that the application of the later SoP would lead to a more beneficial outcome than the earlier SoP can, in itself, lead to a different conclusion. It is not only rights which are preserved pursuant to s. 8 of the Acts Interpretation Act 1901 but also privileges and, more relevantly in this case, obligations and liabilities acquired, accrued or incurred under the repealed legislation.  Where a SoP has been made, the Commission acquires an obligation to determine a person's claim in accordance with that SoP.  Although we have paid it the greatest regard, it follows that, with respect, we do not agree with the view expressed by the Tribunal in Re Zoarder and Secretary, Department of Social Security (1998) 26 AAR 342, Mathews J, President) that s. 8:

"… applies where the change in the law would otherwise deprive a claimant of rights already accrued.  It operates to prevent a claimant being unfairly disadvantaged by changes in the law between the making of a claim and the time of its determination (Re Reilly and Secretary, Department of Social Security (1987) 12 ALD 407 at 414). Accordingly, it will normally (if not invariably) only apply to preserve rights where the change in the law is disadvantageous to the person asserting the right. It is difficult to conceive of a situation where the law has moved from a restrictive to a less restrictive regime where the applicant could be said to have an accrued right which will require preservation under s 8(c). …" (paragraph 25)

1. The only way in which consistency of decision making can be maintained is if the finding of their Honours in Keeley applies equally whether the change to the later SoP is beneficial to claimants or not.  If it were otherwise, the applicable SoP could be determined by the particular circumstances of each claimant for what might be beneficial to one might not be beneficial to another.  It could also be determined by the persistency exhibited by a claimant in pursuing his or her appeal rights.  If he or she decides to accept the Commission's initial decision, he or she might be disadvantaged against a person who does not and, while proceeding in the VRB or this Tribunal, finds that the RMA has made a SoP more favourable to his or her claim.  The person who accepted the Commission's decision would need to make a new claim and his or her entitlement would be determined by the date of that new claim.  The person who proceeded would have his or her entitlement determined by reference to the date of his or her original, but usually significantly, older claim.

1. Taking all of these matters into account, we have concluded that SoP 82 does not indicate any intention to displace SoP 174 as the appropriate SoP by which to consider Mrs Reading's claim.  As the material does not point to the hypothesis' being consistent with that SoP, it cannot be regarded as reasonable.  As the link between Mr Reading's smoking and his diabetes is an essential link in the hypothesis proposed on behalf of Mrs Reading, it follows that we do not consider that hypothesis that Mr Reading's death was war-caused is reasonable.

1. For these reasons, we affirm the decision of the respondent dated 2 November, 1995 and affirmed by a decision of the Veterans' Review Board dated 6 November, 1998.

I certify that the fifty three preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President) and Captain E T Keane (Member)

Signed:          ....................................……….
  S Thomson Personal Assistant

Date of Hearing  27 April, 2000
Date of Decision       20 September,  2000
Solicitor for the Applicant                Mr A Harding, Gilshenan & Luton
Advocate for the Respondent           Mr B Williams