Repatriation Commission v Burge

[2002] FCA 623

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Burge [2002] FCA 623

REPATRIATION COMMISSION v LESLIE BURGE
V 1185 OF 2001

DRUMMOND J
10 MAY 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1185 OF 2001

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	REPATRIATION COMMISSION APPELLANT
AND:	LESLIE BURGE RESPONDENT

JUDGE:	DRUMMOND J
DATE OF ORDER:	10 MAY 2002
WHERE MADE:	MELBOURNE

THE COURT DECLARES THAT:

1.The learned federal magistrate erred in holding that the Administrative Appeals Tribunal is required, when considering whether a reasonable hypothesis is raised connecting an injury or disease with the circumstances of a veteran’s operational service for the purposes of ss 120(3) and 120A(3) of the Veterans’ Entitlements Act 1986 (Cth), to determine “whether the facts at least point to a reasonable hypothesis in a Statement of Principles” on the “reverse onus beyond reasonable doubt standard of proof”.

2.The learned federal magistrate should have held, consistent with the decision of the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82, that the Administrative Appeals Tribunal is required, when deciding whether a reasonable hypothesis is raised for the purposes of ss 120(3) and 120A(3) of the Veterans’ Entitlements Act 1986 (Cth):

(i)first, to consider the whole of the material before it and determine whether that material points to a hypothesis connecting the claimed conditions with the circumstances of the particular service rendered by the veteran, being a hypothesis that is not too fanciful, remote or tenuous;

(ii)secondly, to identify the applicable Statement of Principles;

(iii)thirdly, to determine whether the hypothesis, as pointed to by the material before the Administrative Appeals Tribunal, is upheld by the applicable Statement of Principles; and

(iv)finally, if such a hypothesis, as pointed to by the material before the Administrative Appeals Tribunal, is upheld by the applicable Statement of Principles, to determine whether the factual foundation of the hypothesis is displaced beyond reasonable doubt.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1185 OF 2001

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	REPATRIATION COMMISSION APPELLANT
AND:	LESLIE BURGE RESPONDENT

JUDGE:	DRUMMOND J
DATE:	10 MAY 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a federal magistrate who made orders allowing an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) and remitting the matter, save and except that the condition of varicose veins left leg be affirmed as not being war caused in accordance with the decision of the Tribunal dated 20 December 2000, to the Tribunal for rehearing according to law.  The federal magistrate also made a costs order against the respondent.

2. The appeal is unusual in so far as the orders made by the federal magistrate were made by consent in accordance with the orders sought by the parties.  The reason for the present appeal is that the federal magistrate declined to make the consent orders without first undertaking the task of stating the relevant law to be applied by the Tribunal on the rehearing.  Unfortunately, in stating the relevant legal principles, the federal magistrate fell into an error in one respect.  His Honour, at par 23 of his reasons, summarised those principles of law, saying:

   “In my view there is sufficient material before me to suggest that the errors occurred in that limited sense namely:

   a)the failure to set out properly the steps to be followed arising from Deledio’s case;

   b)the failure to set out the appropriate standard of proof which in the case of the diagnosis is on the balance of probabilities and in the case of determining whether the facts at least point to a reasonable hypothesis in a Statement of Principles it is a reverse onus beyond reasonable doubt standard of proof;

   c)Failure to consider applying the more recent and potentially more favourable Statements of Principles.”

3. In my opinion, the appellant is correct in saying that the statement contained in par 23(b) in relation to the reasonable hypothesis erroneously states the relevant law.  The matter is covered in the decision of Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 - 98 (“Deledio”).  In par 3 (at 97), the Full Court deals with the task of the Tribunal in relation to the matter the subject of the federal magistrate’s comments in this part of par 23(b) of his reasons, saying:

   “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.  …”

4. It is true that in undertaking that task the Tribunal must make a factual assessment of all the material before it to see if it points to a relevant hypothesis.  But no question arises as to the Tribunal having to perform the task, at that stage, of making any findings of fact.  So much is apparent from the passage I have read from Deledio. 

5. I accept what counsel for the appellant says to the effect that the question whether the material does point to a hypothesis consistent with the relevant statement of principles is not to be determined by applying the standard of proof in s 120(1) the Veterans’ Entitlements Act 1986 (Cth), that the question whether a reasonable hypothesis is raised by the material precedes and is not resolved by resort to s 120(1), and that the question whether the factual foundation for the hypothesis is displaced beyond reasonable doubt is the ultimate fact-finding question which is only to be approached after the decision‑maker concludes that the material points to a hypothesis and the hypothesis is consistent with the relevant statement of principles.

6. The decision of the Full Court in Secretary, Department of Social Security v Lowe (1999) 92 FCR 26 at 34 is authority for the proposition that in circumstances like the present, where an order has been made to which effect will have to be given by the Tribunal and that order is accompanied by an erroneous statement of legal principle to be applied, this Court should correct that error by appropriate declaratory relief. I therefore will make declarations in terms of pars 2(a) and (b) of the notice of appeal under the heading “Grounds”. I note that the appellant does not seek any orders in relation to the costs of these proceedings.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated:             15 May 2002

Counsel for the Appellant:	Mr P Hanks QC and Ms A McMahon
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the Respondent:	Mr D De Marchi
Solicitor for the Respondent:	De Marchi & Associates
Date of Hearing:	10 May 2002
Date of Judgment:	10 May 2002