Repatration Commission & Ors v Yates, Darren Yates, Darren v Repatration Commission

[1997] FCA 512

THE REPATRIATION COMMISSION v. M.D. ALLEN, J.D. CAMPBELL, and A.R. HORTON
(constituting the Administrative Appeals Tribunal) AND DARRYN PAUL
YATES
Nos. NG416 and NG489 of 1996
DARRYN PAUL YATES v.
REPATRIATION COMMISSION
No. NG700 of 1996
FED No.
512/97
Number of pages - 9
Administrative law

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

MOORE J

Administrative law - meaning of phrase "to be heard and decided in conformity with the Reasons for Judgment" - Whether Judge intended to preclude reception of further evidence by the Administrative Appeals Tribunal

Veterans Entitlement Act 1986

Administrative Decisions (Judicial Review) Act 1977

Administrative Appeals Act 1975

Repatriation Commission v Nation (1995) 57 FCR 25

Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Langley v Repatriation Commission (1993) 43 FLR 194

Owen v Repatriation Commission (1995) 59 FLR 93

Harradine v Secretary, Department of Social Security (1990) 25 FLR 35

Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550

Gikas v Papanayiotou [1977] 2 NSWLR 944

Re Future Life Enterprises Pty Ltd (1994) 33 NSWLR 559

Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385

Commonwealth Banking Corporation v Percival (1988) 20 FCR 176

SYDNEY, 12 March 1997 (hearing), 12 June 1997 (decision)

#DATE 12:6:1997

#ADD 18:6:1997

Counsel for the Applicant: Miss R M Henderson

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr M B Smith

Solicitor for the Respondent: Vardanega Roberts Solicitors

THE COURT ORDERS AND DIRECTS THAT:

1. The application being matter no. NG 489/96 is dismissed.

   2. The application being matter no. NG 416/96 is dismissed.

   3. The cross-claim by Mr Darryn Yates in matter no. NG 416/96 is dismissed.

   4. The application being matter no. NG 700/96 is dismissed.

   5. Any written submissions as to costs should be filed and served within 7 days of the publication of these reasons.

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

MOORE J

1. On 22 July 1994 the Veterans' Appeals Division of the Administrative Appeals Tribunal ("AAT") made a decision concerning the entitlement of Mr Darryn Yates to a pension under the Veterans Entitlement Act 1986 ("Entitlements Act"). The claim for a pension has resulted in what is now protracted litigation. To understand the nature of the decision of the AAT, it is necessary to set out some of the history of the matter. The following historical narrative is taken from an earlier judgment of this Court and a chronology handed up by counsel for the Repatriation Commission ("the Commission") which I understand to be uncontentious.

2. Mr Yates served in the Australian Regular Army from 11 January 1988 to 8 February 1993 when he was discharged on medical grounds. On 6 October 1992 he had lodged a pension claim with the Commission, in effect, to have a disability, spondyloarthritis, recognised as "defence-caused" thus founding an entitlement to a pension. On 2 February 1993 a delegate of the Commission determined it was not defence-caused and this decision was affirmed by the Veterans Review Board. The decision was further reviewed by the AAT. On 22 July 1994 the AAT set aside the decision and remitted the matter to the Commission on the following basis:

"That the applicant is entitled to the payment of pension for the defence-caused disease of aggravation of spondyloarthritis as and from 6 July [1991].

AND THAT the Respondent is to assess the rate at which pension is to be paid for incapacity occasioned by the said defence-caused disease."

3. The Commission successfully appealed to this Court under s 44 of the AAT Act against that decision. In a judgment published on 5 May 1995 Lindgren J ordered, as the orders were entered:

1. The appeal is allowed

   2. The decision of the Administrative Appeals Tribunal given on 22 July 1994 in proceedings No P93/365 be set aside.

   3. The matter be remitted to the Administrative Appeals Tribunal to be heard and decided in conformity with the Reasons for Judgment.

   4. Each party pay its own costs.

4. While the judgment is reported in (1995) 57 FCR 241 I was referred only to the judgment as it has been published by the Court.

5. I will consider the reasons for judgment of Lindgren J in some detail shortly though I should now note that the penultimate paragraph of those reasons was:

"CONCLUSION In my opinion, for the foregoing reasons, the appeal should be allowed, the decision of the AAT of 22 July 1994 should be set aside and the matter should be remitted to the AAT to be heard and decided again by it in conformity with the foregoing reasons, without the hearing of further evidence." (emphasis added).

6. As a result of these orders, the matter returned to the AAT and, in due course, a hearing took place on 1 March 1996. The further decision of the AAT was given on 26 April 1996, the operative part of which was:

"This matter is adjourned and remitted to the Respondent, Repatriation Commission, with the following direction, namely: That a further x ray be obtained of the Applicant and a further report obtained as to whether clinical examination and those changes reveal a making worse of the Applicant's underlying condition."

7. A decision in these terms gave rise to an application by the Commission to this Court filed on 22 May 1996 made under the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act"), which became matter NG 416 of 1996. Five days later, on 27 May 1996, there was a further hearing by the AAT in which it issued what is described as a direction in the following terms:

"UPON hearing Mr M.B. Smith of counsel for the applicant and Miss R.M. Henderson of counsel for the Respondent, the Tribunal vacates its direction of 26 April 1996 and substitutes in lieu thereof the following Direction, namely:- THAT this matter is adjourned in order that either party may place before the Tribunal such material as they consider relevant regarding the making worse of the Applicant's condition by the incidences of his military service."

8. A direction in these terms gave rise to a further application under the ADJR Act by the Commission to this Court, filed on 18 June 1996, which became matter NG 489 of 1996. On 26 June 1996 the AAT provided reasons for its decision or direction of 26 April 1996. On 26 June 1996 Mr Yates filed a cross-claim in NG 416 of 1996. Also on 29 August 1996, Mr Yates filed an application for an extension of time in which to appeal against the judgment of Lindgren J of 5 May 1995. This application became matter NG 700 of 1996. This judgment deals with these three applications. No point has been taken about reliance by the Commission on the ADJR Act.

9. The issues that arise in these proceedings are, potentially, numerous and issues which fall to be decided depend, in part, on the resolution of a central issue concerning the effect of the orders of Lindgren J of 5 May 1995. The contentious aspect of those orders is whether the words in order 3, "to be heard and decided in conformity with the Reasons for Judgment", when read with the penultimate paragraph of the reasons, required the AAT to determine "the matter" without further evidence. Counsel for the Commission contends this is the effect of the order while counsel for Mr Yates contends that the order meant no more than the AAT had to hear and determine the matter according to law and could, in so doing, exercise a power to receive further evidence.

10. To resolve this issue it is necessary to consider further the issues before Lindgren J, his reasons and the legislative context in which the AAT made its decision. I refer to his Honour's reasons because, in my opinion, the order is ambiguous and resort can be had to the reasons to determine its meaning in those circumstances: see Repatriation Commission v Nation (1995) 57 FCR 25 though, in any event, the reasons are, in a sense, incorporated by reference into the orders themselves having regard to their terms. His Honour set out, in some detail, the factual background against which the AAT had made its determination. The critical elements of it were as follows. I have tried to summarise them as economically as possible. As noted earlier, Mr Yates commenced serving in the Australian Regular Army in January 1998. In June 1991 Mr Yates experienced pain in his left ankle then diagnosed as Achilles tendonitis. He remained engaged on normal duties. On 11 February 1992 he was diagnosed as suffering spondyloarthritis. The AAT had concluded he should then have been discharged as medically unfit. He was not and for a period he continued to perform duties that, in various ways identified by Lindgren J, were physically demanding. On 8 February 1993 Mr Yates was discharged medically unfit and was given a medical certificate classifying him unfit for work for a period of 3 months which would have concluded in May 1993. His Honour then noted certain matters arising from the hearing before the AAT in June 1994. Mr Yates did not, in June 1994, exhibit symptoms of spondyloarthritis as he was successfully managing his condition. There was no issue before the AAT that spondyloarthritis was genetically determined.

11. Lindgren J's judgment centered on the operation of s 70 of the Entitlements Act which relevantly provides:

"70(1) Where: (a) ........ ........ ........ ........ .....; or (b) a member of the Forces ... has become incapacitated from a defence-caused injury or a defence-caused disease; the Commonwealth is, subject to this Act, liable to pay: (c) ........ ........ ........ ........ ......; (d) in the case of the incapacity of the member -- pension to the member; in accordance with this Act.

(5) For the purposes of this Act, ... an injury suffered by [a member of the Forces] shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if: (a) ........ ........ ........ ........ .......; (b) ........ ........ ........ ........ .......; (c) ........ ........ ........ ........ .......; (d) the injury or disease from which the member ... has become incapacitated: (i) ........ ........ ........ ........ .; (ii) was suffered or contracted before the commencement of the period, or the last period, of defence service ..., but not during such a period of service; and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service ... rendered by the member, being service rendered after the member suffered that injury or contracted that disease; but not otherwise." (emphasis supplied)

12. The expressions "disease" and injury" are defined in s 5 of the Act as follows:

"'disease' includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development, and the recurrence of such an ailment, disorder, defect or morbid condition, but does not include the aggravation of such an ailment, disorder, defect or morbid condition; 'injury' means any physical or mental injury, and includes the recurrence of any physical or mental injury, but does not include a disease or the aggravation of a physical or mental injury;" (emphasis supplied)

13. His Honour noted the AAT had found Mr Yates had experienced a temporary aggravation of his disease in the period July 1991 until May 1993 and also noted that the first date was when pain had first been experienced and the second was three months after the discharge.

14. His Honour concluded that the AAT had been distracted from addressing whether there had been an aggravation of Mr Yates' spondyloarthritis as distinct from whether there had been a temporary worsening of symptoms. His Honour had earlier noted the distinction to be drawn between the notion of symptoms and disease evident in the judgment of Toohey J in Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533 though arising in a different statutory context.

15. It is trite law that, in exercising its power of review, the AAT is exercising the powers of the decision-maker on the material before it: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 and may exercise all the powers and discretions conferred on the decision maker by any relevant enactment: see s43(1) of the Administrative Appeals Act 1975 ("AAT Act").

16. It is instructive to consider the nature of the power exercised by the delegate of the Commission on 2 February 1993 and the manner in which it was exercised. Section 71 of the Entitlements Act applies, with qualifications that are not presently relevant, provisions of that Act which govern the assessment of a claim by a veteran for a pension found in, inter alia, Division 3 of Part II. Sections 18 and 19 are found in Division 3 of Part II. Section 71 directs that s 19 apply on the basis that some of the language in s 19 itself be read as a reference to another matter. The following is the text of s 18 and s 19 though I have modified it by making the relevant changes (in bold) flowing from the operation of s 71:

18.(1) It is the duty of the Commission in considering a claim or application submitted to it, to satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the determination of the claim or application. (2) ...

19(1) Where a claim or application is submitted to the Commission in accordance with subsection 17(2), the Commission shall: (a) consider all matters that, in the Commission's opinion, are relevant to the claim or application; and (b) subject to this section, determine the claim as provided by subsection (3) or the application as provided by subsection (4). (2) Without limiting the generality of paragraph (1)(a), the matters that the Commission may consider include: (a) the evidence and documents that were submitted with claim or application in accordance with subsection 17(3); (b) any evidence subsequently submitted to the Commission in relation to the claim or application; and (c) any evidence, documents or other material furnished to the Commission under section 32. (3) The Commission shall determine a claim for a pension as follows: (a) first, the Commission shall determine whether the claimant is entitled to be granted a pension in respect of: (i) the incapacity of a [member of the Forces] from [defence-caused] injury or [defence-caused] disease, or both; or (ii) ... (b) then, if the Commission determines that the claimant is so entitled, the Commission shall proceed as set out in subsection (5). (4) ...

17. This scheme has three features of some significance in the present case: see generally Langley v Repatriation Commission (1993) 43 FCR 194. First, s 18 imposes a duty on the Commission, which determines the claim for a pension, to satisfy itself in relation to all matters relevant to the determination of the claim. Second, s 19(2)(b), enables the Commission to consider "any evidence subsequently submitted". This is in addition to evidence furnished, in accordance with s 17(3), by the claimant when the claim was made. Third, it creates a series of ordered steps the Commission must commence to follow when determining the claim. Each step involves an intermediate determination. The answer at each step determines what, if any, further step must be taken. The first step, found in s 19(3)(a) requires, relevantly, an intermediate determination of several matters including whether there has been a defence-caused injury or disease, causing incapacity.

18. In the present case the delegate of the Commission took the first step but answered the question of whether there had been a defence-caused injury or disease in the negative. Under the heading "Determination" the delegate of the Commission said:

"Spondyloarthritis is determined not to be defence-caused within the meaning of section 70 of the Veterans' Entitlements Act 1986. The claim for pension is refused."

19. It is to be recalled that this determination was made before Mr Yates was discharged from the Army and within the period later determined by the AAT as the period in which Mr Yates had suffered a temporary aggravation of the disease.

20. I refer to these matters because it appears to me that, apart from the effect of any order of the Court, the AAT could on remitter, exercise the powers conferred by s 19 including the power referred to in s19(2)(b) which authorises, if not requires, the consideration of evidence submitted by the claimant after the claim has been made but before it is determined. Armed with that evidence and any other relevant material, the AAT could then embark upon the ordered steps of intermediate determination provided by s19. That could include a consideration of the matter addressed by Lindgren J, that is, whether there had been a pre-existing disease or injury that had been affected in the way identified in s 70(5). If so, consideration might then be given to whether that pre-existing disease or injury, so affected, resulted in incapacity in the manner referred to in that section. That inquiry would plainly focus on the contribution or aggravation, if any, during the period of service concluding in February 1993. However the consideration of what consequential incapacity, if any, arose would not be by reference only to the same limited period. Thus contemporary evidence might be led by a claimant concerning incapacity arising from an earlier service related aggravation of material contribution to a pre-existing injury of disease.

21. In those circumstances the AAT, considering the matter after, and perhaps well after, the primary decision-maker might receive evidence concerning the issue of whether or not the claimant had been, or is, incapacitated on the basis that the claimant can at least demonstrate contribution or aggravation in the relevant sense. Further evidence might be led about that latter matter as well. That being so the Court, in the ordinary course, would not fetter the power of the AAT to exercise the power, conferred by s 19(2)(b) of the Entitlements Act and s 43 of the AAT Act, to receive such evidence.

22. A further pointer, in my opinion, to what Lindgren J intended by order 2, and thus how it should be construed, is the recounting by Lindgren J of several of the findings of the AAT and a statement of legal principle made by his Honour. The finding of the AAT, referred to by his Honour, that there had been temporary aggravation of a disease between July 1991 and May 1993, was based on what appears to have been a finding of the AAT that Mr Yates' symptoms (pain was the symptom repeatedly mentioned though stiffness was referred to once) were not manifest after a period of rest and recuperation after discharge from the Army. His Honour described that latter finding as "a finding ... that Yates symptoms had temporarily been made worse by activity in which he had been required to engage in the course of his defence service" and on the following page of the judgment as " ... the period associated with the appearance or worsening of symptoms of the disease". I rather think, having regard to this latter remark and the entire decision of the AAT which Lindgren J was considering, his Honour was viewing the AAT's finding as one concerning one period, July 1991 to May 1993, in which the symptoms of the spondyloarthritis were manifest. This is significant because Lindgren J noted later that incapacity was an essential element of the Commonwealth's liability to pay a pension. His Honour went on to say:

"A defence-caused aggravation of a disease may or may not cause incapacity. Incapacity is related to "symptoms". There cannot be incapacity without symptoms but there can be symptoms without incapacity. Similarly, symptoms are related to, but not synonymous with, relevantly, disease. A disease may be, from time to time, symptom free. Likewise there can be symptoms of a disease, and a worsening of such symptoms, whether or not there has been an aggravation of the underlying disease."

23. It is relatively clear that his Honour's orders were made in circumstances where, for the purposes of the matter that had been considered by the AAT, the issue was the legal significance of a period or periods in which symptoms were manifest which, having regard to the evidence before the AAT at the time it first considered the matter, was the period July 1991 and May 1993. The legal issue before the Court was whether, in relation to one period, the Tribunal had erred in law in considering whether there had been a defence caused aggravation of a disease potentially founding a liability to pay a pension. However the matter that had been before the AAT, and the matter remitted to the AAT was, in my opinion, the entire controversy of whether Mr Yates' claim for a pension should or should not be allowed: see Repatriation Commission v Nation (supra) at 34 at least to the extent that the claim was based on Mr Yates' spondyoarthritis: see Owen v Repatriation Commission (1995) 59 FLR 93.

24. The task of the AAT, prior to the judgment of Lindgren J, was to embark the course charted, indirectly, by s 19 of the Entitlements Act. In my view, the real issue is whether Lindgren J intended to limit or modify what the AAT would otherwise have to do and, in particular, might do in accordance with s 19(2)(b).

25. The minutes of order made by his Honour are not in evidence. The reasons for judgment are in evidence as are the order made by the Court, as entered. I infer they reflect the minutes of order though the orders, as entered, contain, in order 3, the typed words "these Reasons" with the "se" in "these" crossed out. This is intelligible given that when the orders were entered they were removed, in a temporal and physical sense, from the published reasons for judgment. It is likely the minutes of order accompanying the reasons for judgment referred to "these" and not "the".

26. To this point, I have considered the circumstances in which the orders were made by Lindgren J which do not suggest, in my opinion, that they were intended to preclude the reception of further evidence by the AAT upon remitter. That is reinforced by the fact that the Commission did not, in its application heard by Lindgren J, seek an order fettering the power of the AAT to receive further evidence and the fact that it was not a matter about which the parties made, or were invited to make, submissions.

27. I accept, however, that, on one view, the terms of the orders point in the other direction. They do so because they remit the matter to the AAT with a direction to hear and determine the matter "in conformity with the Reasons for Judgment" and the reasons referred to a hearing "without the hearing of further evidence". However upon closer analysis, the terms of the orders point less clearly in that direction.

28. I earlier set out the penultimate paragraph of Lindgren J's reasons for judgment which was the operative paragraph under the heading "CONCLUSION". It is to be noted that in the paragraph the reference to hearing and decision by the AAT "in conformity with the foregoing reasons" precedes any reference to no further evidence. That is, his Honour is indicating that the hearing and decision is to be undertaken by reference to the Court's conclusion about the applicable law evident in the reasons that preceded the conclusion and, at least arguably, not by reference to remarks in the section headed "conclusion" itself. This is consistent with common procedure of remitter requiring the AAT to determine the matter according to law: see Harradine v Secretary, Department of Social Security (1990) 25 FLR 35 at 36 per Wilcox J see also Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 556. Moreover order 3 is, in substance, an order coupled with a direction. The order is that the matter be remitted and the direction is that the AAT hear and decide the matter in conformity with the reasons for judgment. This reflects the structure of s 44(5) of the AAT Act which, together with s 44(4), confers power on the Court to make the order and direction. Section 44(4) and (5) provide:

(4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.

(5) Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court."

29. It can be seen that s 44(5) contemplates the making of an order, a component of which might address whether further evidence should be heard, and the giving of directions. The directions might circumscribe the basis upon which the matter is heard and determined. It seems to me that, consistent with the structure of s 44(5), the Court would, at least ordinarily, expressly embody in an order any requirement concerning the hearing of further evidence which would include any prohibition on the hearing of further evidence. Thus, had Lindgren J intended to prohibit the reception of further evidence, that would have been addressed expressly in the orders made, rather than as the Commission now contends, indirectly and ambiguously in the direction given about the further hearing and determination in conformity with the reasons for judgment. While it appears his Honour thought it was not necessary for further evidence to be put to the AAT, it was not intended that the AAT be precluded from entertaining it.

30. While the matter is not free from doubt, I have concluded that the orders of Lindgren J were not intended to fetter the AAT's capacity to receive further evidence. I should add that it appeared to be common ground between the parties that Lindgren J was functus officio. I doubt that this is so. If a case of this type was to arise again, consideration might be given to approaching the Court, at least initially, to seek to have the matter clarified by a variation of the original order if it was necessary: see Gikas v Papanayiotou [1977] 2 NSWLR 944 and O35 r7(2)(e); and also Re Future Life Enterprises Pty Ltd (1994) 33 NSWLR 559; and Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385.

31. This conclusion deals with the Commission's application which became NG 489 of 1996. It should be dismissed. The application which challenges the direction of the AAT of 26 April 1996, NG 416 of 1996, should also be dismissed as the direction has been vacated. That application raises a point of no present practical consequence. The application by Mr Yates for an extension of time in which to appeal, NG 700 of 1996, is, as I apprehend the position adopted by counsel for Mr Yates, not to be pursued having regard to the conclusion I have reached about the effect of Lindgren J's orders. That application is therefore dismissed.

32. I should refer briefly to the cross-claim brought by Mr Yates in NG 416 of 1996. Making a range of assumptions in Mr Yates' favour about the efficacy of such a claim, it proceeds on an unduly narrow view of what the Tribunal said in its reasons in support of the direction of 26 April 1996 which it has since vacated. I do not read paragraph 10 of those reasons as indicating a view that the exacerbation of symptoms of the disease could never evidence a worsening of the underlying disease. Such a view would run counter to this Court's decision in Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 at 179-180. As to views expressed about the evidence of Dr Sandbrook, that, at best, is a finding of fact yet to found a reviewable decision. I dismiss the cross-claim. I am presently minded to make no order as to costs but if either party wishes to urge some other course upon me, written submissions on the question of costs should be filed and served within seven days of the publication of these reasons.