Repatriation Commission v Cooke

[1998] FCA 1717

FEDERAL COURT OF AUSTRALIA

DEFENCE AND WAR – Veteran’s entitlements – whether veteran suffered from the disease of anxiety state – standard of proof – whether that issue to be decided by applying the reverse criminal standard or the civil standard of proof.

Veterans’ Entitlements Act 1986 (Cth) s 120(1), (3), (4)

Preston v Repatriation Commission (1993) 45 FCR 214 not followed
Bushell v Repatriation Commission (1992) 175 CLR 408 considered
Ferriday v Repatriation Commission (1996) 69 FCR 521 followed
Byrnes v Repatriation Commission (1993) 177 CLR 564 considered
East v Repatriation Commission (1987) 16 FCR 517 considered
Repatriation Commission v O’Brien (1985) 155 CLR 422 considered

REPATRIATION COMMISSION v COLIN MACK COOKE

No WG 36 of 1998

FRENCH, DRUMMOND & CARR JJ

23 DECEMBER 1998
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG 36 of 1998

BETWEEN:	REPATRIATION COMMISSION Applicant
AND:	COLIN MACK COOKE Respondent

JUDGES:	FRENCH, DRUMMOND AND CARR JJ
DATE OF ORDER:	23 DECEMBER 1998
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal be allowed.

1. The decision under review be set aside

1. The matter of the applicant’s claim relating to his psychiatric condition be remitted to the Administrative Appeals Tribunal for determination according to law.

1. There be no order in respect of the costs of the appeal, but there be liberty to either party to apply within 14 days in relation to the question of costs.  Such application, initially, may be made by giving notice by letter addressed to the District Registrar.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG 36 of 1998

BETWEEN:	REPATRIATION COMMISSION Applicant
AND:	COLIN MACK COOKE Respondent

JUDGES:	FRENCH, DRUMMOND AND CARR JJ
DATE:	23 DECEMBER 1998
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:

This is an appeal under s 44 the Administrative Appeals Tribunal Act 1975 (Cth) from part of a decision of the Veterans’ Appeals Division of the Administrative Appeals Tribunal (“the Tribunal”) constituted by Mathews J President, Dr Staer and Brigadier Lloyd, Members, given on 12 February 1998. The Tribunal set aside the decisions of the Veterans’ Review Board (“the VRB”) which, on 18 March 1992, had affirmed each of the decisions then under review.

The Tribunal decided that the respondent’s anxiety state and back condition were war-caused, within the meaning of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). It remitted the matter to the appellant for calculation and payment of the relevant pension.

The appellant, the Repatriation Commission (“the Commission”) seeks an order that the decision of the Tribunal, insofar as it related to the anxiety state, be set aside and that the matter be remitted to the Tribunal for further hearing and determination according to law.

The question of law which the appellant identifies is whether the Tribunal applied the correct standard of proof in determining whether the respondent suffered from the disease of anxiety state.

The appellant contends that the Tribunal erred by applying the incorrect standard of proof, viz, that which is prescribed by s 120(1) of the Act, sometimes referred to as “the reverse criminal standard” [see Beazley J in Preston v Repatriation Commission (1993) 45 FCR 214 at that page]. The appellant argues that the civil standard of proof prescribed by s 120(4) should have been applied to the question whether the respondent was suffering from the claimed disease. The respondent contends that the Tribunal applied the correct standard of proof i.e. that the question of the existence of the disease must be part of the hypothesis connecting the claimed disease with the war service and should be decided by applying the reverse criminal standard of proof. It is common ground that the Tribunal applied the reverse criminal standard in deciding that issue. Accordingly, in our view, the appeal can be distilled into the narrow issue of law identified above without further reference to the factual background.

The Legislative Framework

5D  Injury/disease definitions

(1)       In this Act, unless the contrary intention appears:

…

disease means:

(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or

(b)the recurrence of such an ailment, disorder, defect or morbid condition;

but does not include:

(c)the aggravation of such an ailment, disorder, defect or morbid condition; or

(d)a temporary departure from:

(i)the normal physiological state; or

(ii)the accepted ranges of physiological or biochemical measures;

that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels);

…
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a)       a disease; or
(b)       the aggravation of a physical or mental injury.

…

Section 5D(2) provides that, unless contrary intention appears, a reference to the incapacity of a veteran from a war-caused injury or a war-caused disease is a reference to the effects of that injury or disease and not a reference to the disease itself.

Section 13(1)(b) of the Act relevantly provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease the Commonwealth is liable to pay a pension. Section 9 of the Act relevantly provides that a disease contracted by a veteran shall be taken to be a war-caused disease if it arose out of, or was attributable to, any eligible war service rendered by the veteran.

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.

. . .

(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.

(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.

(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.

The Tribunal’s Decision on Standard of Proof

The relevant issue for the Tribunal to decide was whether the respondent was suffering from the disease of anxiety state.  There were conflicting expert medical opinions on that matter.  In applying the reverse criminal standard of proof, the Tribunal followed dicta from Brennan J in Bushell v Repatriation Commission (1992) 175 CLR 408 at 426 as adopted by Beazley J in Preston.  It distinguished Lee J’s decision in Ferriday v Repatriation Commission (1996) 42 ALD 526 on the basis that that case involved proof of “an entirely different matter”.

Reasoning

In our opinion, the appeal should be allowed. We think that it is quite clear that the issue whether a disease exists, is to be decided to the reasonable satisfaction of the Commission. In other words, s 120(1) and (3) assume the present existence of a relevant condition, in this case a disease. Section 120(1) specifies the standard of proof for the determination whether or not that disease relates to the operational service rendered by the veteran. Section 120(3) provides for one situation in which that standard is to be taken as having been satisfied. The work of each subsection is to provide the standard of proof for establishing a causal connection between disease and service. That standard applies only to a “determination” that the disease is war-caused. This can be seen by examining the precise subject matter and purpose of s 120(1) as revealed in the language in which it is expressed. The subsection speaks of:

·            “the” incapacity from injury or disease of a veteran;

·            “the” death of a veteran

and requires the Commission to determine that

·     “the” injury was a war-caused injury; or

·     “the” disease was a war-caused disease; or

·     “the” death was war-caused

unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.  The subject matter and purpose of the subsection are confined to the standard of proof of war-causation.

The authorities show that where there is an issue about such causation, one turns first to s 120(3): Bushell at 415 and Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571. The Commission has to decide whether all or some of the facts raised by the material before it give rise to a reasonable hypothesis connecting the veteran’s disease with war service. Proof of facts is not in issue at that point. It is important to appreciate that the hypothesis is whether the material raises “a reasonable hypothesis connecting the injury … with the circumstances of the particular service rendered”. Only if there is such a hypothesis does s 120(1) come into play. At that stage 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.”

In either of those circumstances the hypothesis is thus disproved beyond reasonable doubt. 

The opinion which we have just expressed conflicts with the observations of Brennan J in Bushell at 425-427. In Preston, Beazley J was invited (see 219) to reject that reasoning.  Her Honour declined to do so on the basis that she could see no relevant distinction between the joint judgment in Bushell and those reasons (see 221). With all due respect to her Honour, we think that she was mistaken in that regard. When, at 416 in the joint judgment in Bushell, their Honours referred to the application of s 120(1) in terms of

“… the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist.”

we think it is sufficiently clear (as the appellant submitted) that their Honours were referring to the factual foundation “connecting the injury, disease or death with the circumstances of the particular service”.  The whole subject matter of the hypothesis is that connection, not whether a disease exists.  The respondent relied upon Bushell as a case which involved a dispute over the existence of a present condition. We do not see Bushell in that light.  In our view, the dispute in Bushell was whether the essential hypertension was caused or contributed to by the stress or anxiety state which was accepted as being war-caused.  In other words, was the essential hypertension also war-caused?  The respondent also relied upon Byrnes.  But once again, in that case the then present existence of cervical spondylosis was assumed.  The relevant question, as part of the hypothesis, was whether that condition was war-caused i.e. had Mr Byrnes, in January 1943, sustained a serious neck injury when he dived into a swimming pool?  The fact that diving into a swimming pool was one of the assumed facts for the purposes of the hypothesis, does not sustain the respondent’s argument.  All that it amounted to was that there was a reasonable hypothesis based on the assumed facts.  One of the assumed facts was the claimed incident. 

Both the appellant and the respondent relied upon the legislative history of s 120 of the Act and its predecessors for their respective opposing submissions. The legislative history is conveniently contained in the reasons for judgment of a Full Court of this Court in East v Repatriation Commission (1987) 16 FCR 517 at 518-527. Mr P J Hanks, counsel for the appellant, submitted (and it is well accepted) that Parliament had reacted to the High Court’s decision in Repatriation Commission v O’Brien (1985) 155 CLR 422 by introducing the concept of a reasonable hypothesis where the question was whether an injury, disease or death was war-caused. Parliament had, so he submitted, also introduced s 120(4) to deal with every other question. Mr H N H Christie, counsel for the respondent contended that the legislative history clearly indicated to the contrary. He pointed out that when the reverse criminal standard of proof was introduced in 1977 by amendment to s 47(2) (a provision which may be regarded as a predecessor of s 120 of the Act), all matters were to be dealt with by that standard. That is, all matters in relation to a claim for a pension for disability based on war service. Mr Christie submitted that there was no suggestion at the time of the 1985 amendments (the amendments in response to O’Brien) that the reverse criminal standard of proof was being removed in relation to the issue of the existence of a disease.  The hypothesis was simply introduced in order to deal with the connection between the disease and war service.  He relied upon a paragraph in the Minister’s second reading speech which was in these terms:

“Sub-clause 119(1) will require a favourable determination to be made in relation to a pension claim unless the Repatriation Commission is satisfied beyond reasonable doubt that there is no sufficient ground for doing so.”

But it is quite clear from the very next sentence in the Minister’s speech that he was dealing with the matter of a service connection to a veteran’s death or incapacity. Mr Christie suggested that there would be anomalies. He gave some examples. One was that a veteran might make a claim for a depressive disorder which was disputed. If, before the hearing of that dispute, the veteran were found dead in circumstances where suicide was an open question, there would be a separate standard of proof to be applied to the veteran’s claim from that which would be applied to the widow’s claim. The Commission or the Tribunal would make its decision as to whether a depressive disorder existed, to its reasonable satisfaction. But the question whether a depressive order existed, to meet the hypothesis of death by suicide as a result of the depressive disorder as a result of war service would be governed by a combination of s 120(3) and (1).

In our view there are two answers to those contentions. First, the language of s 120(1) and (3) is so clear as to not raise any doubt on the point. Secondly, any suggested illogicality disappears when one focusses on the task in hand. In the example given above, the task at hand when deciding the incapacity claim is, initially, whether there is or was a disease. The evidence is far more readily available on that issue (in the main medical evidence one would suppose) than matters of war-causation which involve assessment of events which may have taken place as long ago as half a century. It makes very good sense, in our opinion, to apply, as s 120(4) of the Act requires, a civil standard of proof to the former question and the more liberal reverse criminal standard of proof to the latter question. Furthermore, one should not overlook the ameliorative effects of s 120(5) and (6) in relation to difficulties in establishing facts.

In our respectful opinion Lee J was correct in Ferriday (the decision which Beazley J declined to follow in Preston and which the Tribunal distinguished in this matter) when he said, at 529:

“Facts which may be germane to establishing a right to a pension under the Act but not part of the question of causal connection between a morbid condition and a relevant circumstance of operational service addressed under s 120(1) are facts to be established to the reasonable satisfaction of the Commission.”

For the foregoing reasons, we would allow the appeal, set aside that part of the decision under challenge and remit it to the Tribunal for determination according to law.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment of the Court.

Associate:

Dated:             23 December 1998

Counsel for the Appellant:	Mr P J Hanks
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the Respondent:	Mr H N H Christie
Solicitor for the Respondent:	Legal Aid Commission of Western Australia
Date of Hearing:	20 November 1998
Date of Judgment:	23 December 1998