Repatriation Commission v Budworth [2001] FCA 1421
VETERANS’ ENTITLEMENTS – standard of proof to be applied to claims – whether the respective tests as to the reverse onus upon Commission as to satisfaction beyond reasonable doubt concerning war-caused injury and as to civil onus as to remaining elements required for decision-making operated in mutual exclusive way – issue resolved in affirmative.
RYAN, MARSHALL AND CONTI JJ SYDNEY 10 OCTOBER 2001
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 427 of 2001
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
REPATRIATION COMMISSION APPELLANT
AND:
RONALD JAMES BUDWORTH RESPONDENT
JUDGES:
RYAN, MARSHALL AND CONTI JJ
DATE OF ORDER:
10 OCTOBER 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed and the Order of Madgwick J of 29 March 2001 be affirmed.
2.The appellant pay the respondent’s costs of the appeal, such costs to be taxed in default of agreement.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 427 of 2001
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
REPATRIATION COMMISSION APPELLANT
AND:
RONALD JAMES BUDWORTH RESPONDENT
JUDGES:
RYAN, MARSHALL AND CONTI JJ
DATE:
10 OCTOBER 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT:
This is an appeal from the judgment of a Judge of the Court delivered on 29 March 2001. The primary Judge allowed thereby an application by way of appeal by the present respondent, Mr Budworth, from the Administrative Appeals Tribunal (“the AAT”) which affirmed two decisions of the Veterans Review Board (“the VRB”). The result of the VRB’s decisions was that Mr Budworth became entitled to a veteran’s pension from 18 October 1992 at a modest rate, and not from an earlier date for which claim had originally been made.
Background
Mr Budworth had several periods of “eligible war service” as described in s 7 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). He undertook five voyages to Vietnam as a member of the Royal Australian Navy on HMAS Sydney and HMAS Melbourne, at times when those vessels were engaged in carrying Australian troops to serve in Vietnam.
On 10 May 1988 Mr Budworth lodged a claim for a pension in respect of claimed disabilities which he described as “hearing loss, constant back pain, severe nerves, insomnia, arthritis and headache”. A delegate of the present appellant, the Repatriation Commission (“the Commission”), found that the material before him raised a reasonable basis for connecting Mr Budworth’s “post-traumatic stress disorder with chronic pain syndrome” with his eligible war service. A pension at 80% of the General Rate…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Repatriation Commission v Budworth [2001] FCA 1421
Case
[2001] FCA 1421
Decision Date
CaseChat Overview and Summary
The appeal in Repatriation Commission v Budworth involved the Repatriation Commission as the appellant and Mr Budworth as the respondent. The dispute centred on the entitlement of Mr Budworth to a veteran's pension and the date from which the pension should be payable. The case was heard by the Federal Court of Australia. The primary issue was whether the Administrative Appeals Tribunal (AAT) correctly applied the standards of proof under section 120 of the Veterans’ Entitlements Act 1986 (Cth) when reviewing Mr Budworth’s pension entitlement. Specifically, the court had to determine whether the AAT appropriately differentiated between matters subject to the reverse onus of proof and those subject to the ordinary civil onus.
The Federal Court found that the AAT had erred in its application of the standards of proof as stipulated in section 120 of the Act. The court clarified that the AAT should not have adopted a "bright line test" for distinguishing between the different standards of proof, particularly when the diagnosis of a condition may depend on its wartime causation. The court held that the AAT's approach was flawed as it treated Mr Budworth's claim as a "rolled up" issue of causation, rather than distinguishing between the different standards of proof required by the statute.
The appeal was dismissed, and the order of Madgwick J dated 29 March 2001 was affirmed. Consequently, the Repatriation Commission was required to pay Mr Budworth's costs of the appeal, subject to taxation if an agreement on the amount could not be reached.
Orders
Orders of the court
1. The appeal be dismissed and the Order of Madgwick J of 29 March 2001 be affirmed.
2. The appellant pay the respondent’s costs of the appeal, such costs to be taxed in default of agreement.
Background
Background to the litigation
This is an appeal from the judgment of a Judge of the Court delivered on 29 March 2001. The primary Judge allowed thereby an application by way of appeal by the present respondent, Mr Budworth, from the Administrative Appeals Tribunal (“the AAT”) which affirmed two decisions of the Veterans Review Board (“the VRB”). The result of the VRB’s decisions was that Mr Budworth became entitled to a veteran’s pension from 18 October 1992 at a modest rate, and not from an earlier date for which claim had originally been made.Background Mr Budworth had several periods of “eligible war service” as described in s 7 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). He undertook five voyages to Vietnam as a member of the Royal Australian Navy on HMAS Sydney and HMAS Melbourne, at times when those vessels were engaged in carrying Australian troops to serve in Vietnam. On 10 May 1988 Mr Budworth lodged a claim for a pension in respect of claimed disabilities which he described as “hearing loss, constant back pain, severe nerves, insomnia, arthritis and headache”. A delegate of the present appellant, the Repatriation Commission (“the Commission”), found that the material before him raised a reasonable basis for connecting Mr Budworth’s “post-traumatic stress disorder with chronic pain syndrome” with his eligible war service. A pension at 80% of the General Rate was assessed to be payable from 10 February 1988. The delegate’s reasons for determination were delivered on 3 November 1989. On 5 December 1989 Mr Budworth applied to the VRB to review the delegate’s determination seeking, amongst other things, an increase in the rate at which his pension had been assessed. On 30 August 1993, the hearing of this application was adjourned by the VRB, pursuant to a request by the VRB made to the Department to arrange for the making of further investigations relating to the claim. Later, Mr Budworth lodged a further claim for additional disabilities, including “anxiety attacks”. The Commission found that “anxiety attacks” comprised the same disability as the post-traumatic stress disorder with chronic pain syndrome; which it had recognised in 1989. The Commission determined that other disabilities suffered by Mr Budworth were war caused and granted the new claim with the result that his pension was increased to the Special Rate (Totally and Permanently Incapacitated) with effect from 18 October 1992. On 4 April 1995 the VRB heard Mr Budworth’s application for a review of the Commission’s 5 December 1989 determination. The VRB set aside the decision of 3 November 1989 and substituted for it a decision that Mr Budworth’s pension be assessed at nil from 10 February 1988 and at 90% of the General Rate from 18 October 1992. The VRB was not satisfied that Mr Budworth suffered from post traumatic stress disorder. On 6 July 1995, Mr Budworth made an application for review of such VRB decision by the AAT. On 6 August 1996 the Commission reviewed its decision of 3 November 1989 and set it aside, the effect of which was to expose Mr Budworth to a liability to repay a substantial amount of the pension which he had previously received. On 18 December 1996 the VRB affirmed that decision of the Commission. On 7 January 1997 Mr Budworth applied to the AAT for a review of the VRB’s decision.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
RYAN, MARSHALL AND CONTI JJ
In its decision on 23 February 2000 the AAT affirmed each of the VRB decisions under review relating to post-traumatic stress disorder. The AAT determined that the rate of pension be nil from 10 February 1988 until 18 October 1992 and from that time be at 90% of the General Rate until 1 November 1997, and thereafter at 100% of the General Rate.Agreed difficulties with the AAT’s decision At the hearing of the appeal, counsel for the Commission accepted that the AAT had erred in failing to consider the exercise of its discretion not to reduce Mr Budworth’s pension retrospectively. It was conceded that the primary Judge’s reasoning in this respect was correct and that the matter must be remitted to the AAT for reconsideration on this ground alone. Ultimately, counsel for the Commission also conceded that the primary Judge was correct in deciding that the AAT had a duty to consider whether Mr Budworth suffered from any disease other than post traumatic stress disorder and that the matter ought be remitted to the AAT for consideration of that issue as well.The Issue on the Appeal In the light of the concessions on behalf of the Commission to which we have referred, the issue remaining for consideration on appeal was how the AAT should have differentiated between matters as to which the Commission was subject to the “reverse onus” of proof beyond reasonable doubt erected by s 120(1) and qualified by s 120(3) and the matters as to which the Appellant bore the ordinary civil onus imposed by s 120(4) of the Act. The learned primary Judge duly acknowledged the need just indicated for the AAT to differentiate that which had been identified by a Full Court of this Court in Repatriation Commission v Cooke (1998) 90 FCR 307. However, the primary Judge went on to say that the choice between the matters in respect of which the different burdens and standards of proof to be found within s 120 were imposed was not to be made by applying which he called a “bright line test” in circumstances where “the diagnosis of a particular condition may be dependent upon its supposed wartime causation”. His Honour further concluded that the AAT had mistakenly approached Mr Budworth’s claim as involving a “rolled up” issue of causation. From the premise thus established, the primary Judge concluded: “The reasoning of the AAT, as I understand it, is that although the applicant may, and even probably appears to, suffer some type of mental ailment, when regard is had to his actual experiences during his Vietnam service, there is no evidence of a sufficiently intense subjective fear or of an extremely traumatic stressor to enable the diagnosis of PTSD, the disease his advisors claimed he had. This clearly goes to issues of causation and should have been determined on the reverse criminal standard.” It is appropriate to extract below the full text of s 120 of the Act for case of reference:“120 Standard of proof(1)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.Note: This subsection is affected by section 120A.(2) Where a claim under Part IV:(a)in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or(b)in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member;the Commission shall determine that the injury was a defence-caused injury, that the disease was a defence-caused disease or that the death of the member was defence-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.Note 1:For member of a Peacekeeping Force, peacekeeping service, member of the Forces and hazardous service see subsection 5Q(1A).Note 2: This subsection is affected by section 120A.(3)In applying subsection (1) or (2) 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.Note: This subsection is affected by section 120A.(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.Note: This subsection is affected by section 120B.(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;(b)a disease contracted by a person is a war-caused disease or a defence-caused disease;(c)the death of a person is war-caused or defence-caused; or(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or(b)the Commonwealth, the Department or any other person in relation to such a claim or application;any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.(7) In this section:(b)a reference to hazardous service shall be read as a reference to service in the Defence Force of a kind determined by the Minister for Defence, by instrument in writing, to be hazardous service for the purposes of this section.”