Repatriation Commission v Keeley

Case [2000] FCA 532


FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Keeley [2000] FCA 532

DEFENCE AND WAR – veterans’ entitlements – pension – Statements of Principles.

STATUTES – operation and effect of statutes – whether an application to review a decision made on a claim for a pension under the Veterans’ Entitlements Act 1986 (Cth) provides an accrued right – whether a determination made under s 196B of the Veterans’ Entitlements Act 1986 (Cth) “affects” an accrued right of review.

WORDS AND PHRASES – “reasonable hypothesis” – “war-caused death” – “operational service”.

Acts Interpretation Act 1901 (Cth) ss 8, 46A, 50
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Veterans’ Entitlements Act 1986 (Cth) Pts II, XIA, XIB; ss 5AB(2), 5B, 6A, 7, 7(1)(a), 8, 8(1)(a), 8(1)(b), 8(1)(d), 8(1)(e), 9, 11, 13, 13(1)(a), 13(1)(c), 14, 19, 19(3), 119, 120, 120(1), 120(3), 120(4), 120A, 120A(1), 120A(2), 120A(3), 120A(4), 120B, 176, 196B, 196B(2), 196B(7), 196B(8), 196B(8)(c), 196D, 196M
Acts Interpretation Act 1931 (Tas)
Tasmanian Criminal Code Ch XIV; ss 124(1), 127, 136

The Shorter Oxford English Dictionary 3rd ed. 1973 at 1010

Byrnes v Repatriation Commission (1993) 177 CLR 564 followed
Bushell v Repatriation Commission (1992) 175 CLR 408 referred to
Conkey & Sons Ltd v Miller (1977) 51 ALJR 583 referred to
Calman v Commissioner of Police [1999] HCA 60 referred to
Re Repatriation Commission and Carroll (1988) 14 ALD 581 approved
Repatriation Commission v Deledio (1998) 83 FCR 82 referred to
Esber v Commonwealth of Australia (1992) 174 CLR 430 applied
Continental Liqueurs Proprietary Limited v G F Heublein and Bro. Incorporated (1960) 103 CLR 422 (on appeal (1962) 109 CLR 153) referred to
Director of Public Works v Ho Po Sang [1961] AC 901 referred to
Australian Coal and Shale Employees’ Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161 referred to
Colonial Sugar Refining Co Ltd v Irving [1905] AC 369 referred to
Lee v Secretary, Department of Social Security (1996) 68 FCR 491 referred to
Minister for Home and Territories v Teesdale Smith (1924) 35 CLR 120 referred to
Robertson v City of Nunawading [1973] VR 819 referred to
Rodway v The Queen (1990) 169 CLR 515 referred to
Maxwell v Murphy (1957) 96 CLR 261 applied
Kraljevich v Lake View and Star Limited (1945) 70 CLR 647 referred to
Ogsten v Repatriation Commission (1999) 29 AAR 89 referred to

Pederson v Young (1964) 110 CLR 162, 169 referred to
McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 referred to
Republic of Costa Rica v Erlanger [1876] 3 Ch D 62 referred to

REPATRIATION COMMISSION v THELMA KEELEY
T 18 OF 1999

LEE, COOPER, KIEFEL JJ
PERTH (HEARD IN HOBART)

28 APRIL 2000

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

T 18 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:

REPATRIATION COMMISSION
APPELLANT

AND:

THELMA KEELEY
RESPONDENT

JUDGES:

LEE, COOPER, KIEFEL JJ

DATE OF ORDER:

28 APRIL 2000

WHERE…

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AGLC
Repatriation Commission v Keeley [2000] FCA 532
Case
[2000] FCA 532
Decision Date

CaseChat Overview and Summary

The Repatriation Commission took action against Mrs. Keeley, a claimant for a war pension, on the grounds that the death of her husband, a war veteran, was not war-caused. The central issue in the case was whether a change in the Statement of Principles (SoP) applied to Mrs. Keeley's case, which would affect her right to a pension. The case was heard in the High Court of Australia. The legal question revolved around the interpretation of section 50 of the Acts Interpretation Act 1901 (Cth), which concerns the common law presumption against retrospectivity. The appellant argued that the SoP was a procedural matter and did not affect any substantive right held by Mrs. Keeley. Alternatively, the appellant argued that even if there was a substantive right, the Act clearly indicated that any later SoP applied to all claims arising after its enactment. However, the Primary Judge, Heerey J, ruled that the question was not about categorising the SoP as a procedural matter but rather about applying section 50 of the AIA and determining if the repeal of the first SoP by the second affected any right or privilege accrued by Mrs. Keeley under the first SoP. The decision in Esber v Commonwealth (1992) 174 CLR 430 and Lee v Secretary, Department of Social Security (1996) 68 FCR 491, which compel an affirmative answer, were referenced by the judge. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 5AB(2) defines “sound medical-scientific evidence” as follows:“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.” Pursuant to s 196D of the Act, a determination of the Authority under s 196B is a disallowable instrument for the purposes of s 46A of the Acts Interpretation Act 1901 (Cth) (“the Interpretation Act”). Section 120(1) provides that the Commission must determine that the death of a veteran who rendered “operational service” was “war-caused” unless it is satisfied, beyond reasonable doubt, “that there is no sufficient ground for making that determination”. It may be assumed that only if the Commission is satisfied beyond reasonable doubt that the material before it does not suggest that s 8 of the Act applies, may it determine that the death of such a veteran was not “war-caused”. Section 120(3) defines the scope of operation of s 120(1) by providing that the Commission must be satisfied beyond reasonable doubt “that there is no sufficient ground for determining” that the death of a veteran was “war-caused” if, in the opinion of the Commission, the material before it does not raise a reasonable hypothesis “connecting” the death with “the circumstances of the particular service” rendered by the veteran. A reasonable hypothesis which “connects” the death of a veteran with “the circumstances of the particular service” of the veteran may be taken to be a theory, proposition, suggestion or postulation which suggests reasonably, although without proof, that some event in, or aspect of, the service rendered by the veteran may be linked to the death of the veteran. (See: Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571.) “Hypothesis”, as used in s 120(3), has the meaning attributed to the word in the The Shorter Oxford English Dictionary 3rd ed. 1973 at 1010:“…A proposition or principle put forth or stated merely as a basis for reasoning or argument, or as a premiss from which to draw a conclusion.…A supposition or conjecture put forth to account for known facts; esp. in the sciences, a provisional supposition which accounts for known facts, and serves as a starting-point for further investigation by which it may be proved or disproved…A supposition in general; something assumed to be true without proof; an assumption…Hence spec. A mere assumption or guess…”

Decision

Reasons for decision

LEE, COOPER, KIEFEL JJ
The Commission contends that the second SoP was applicable. Whilst there has been no factual determination by the AAT based upon the first SoP, it is possible that Mrs Keeley’s case could satisfy its requirements. The first question falls to be resolved by reference to the operation of s 50 AIA, which reflects the common law presumption against retrospectivity. The appellant contends that no substantive right was conferred by the first SoP, so that s 50 has no operation. Alternatively, it submits that if such a right were given, the provisions of the Act, which create the context for the SoP, make plain that any later SoP was intended to apply to all claims arising for determination after it came into effect. The Decision of the Primary Judge Heerey J considered that the answer to the question posed was not resolved by categorising Statements of Principles as procedural matters, but by applying s 50 AIA and enquiring whether the repeal of the first SoP by the second affected any “right” or “privilege” “acquired by” or “accrued” to the applicant under the first SoP. The decision of the High Court in Esber v Commonwealth (1992) 174 CLR 430 and of a Full Court of this Court in Lee v Secretary, Department of Social Security (1996) 68 FCR 491, compelled an affirmative answer. I will refer to those decisions below. His Honour held: “At the time of the Commission’s decision the first SoP, a “statute-backed declaration of what is proved or known scientific fact” (Deledio at 96), had the effect that service-related occupational exposure of Mr Keeley to paints and/or lacquers was sufficient to raise for the applicant the hypothesis required by s 120(3). This was so whether or not the applicant was then aware of the first SoP or its applicability to her case. The applicant had acquired a right to a pension conditional or contingent upon, amongst other things, there being raised (in the sense discussed in the authorities) the fact that Mr Keeley in the course of his service had been occupationally exposed to paints or lacquers, over whatever period of time.”The AppealThe Right Affected The Commission’s principal submission was that ss 120A and 120B of the Act, and the Statements of Principles provided only for matters of procedure which were to apply on the hearing of the claim for a pension. They prescribed the procedures by which a right to a pension under s 13 of the Act is to be recognised or vindicated, but did not refer to that right itself. Section 120A(3) refers to the requirements of the applicant’s evidence, rendering certain evidence irrelevant to the question whether a hypothesis is reasonable. To an extent, Statements of Principles operate as a substitute for medical or scientific evidence that might otherwise be put forward to establish the requisite connexion between the service and the death or injury. A SoP is relevant only to the manner by which an alleged entitlement is pursued to a remedy. The argument denies that an alteration to the SoP operates upon, or affects, any existing right held by Mrs Keeley. The arguments advanced seek to draw upon the distinction discussed by Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261, when explaining the operation of the common law rule against retrospectivity, which is reflected in the AIA provision. His Honour said that it was the concern of the common law to prevent new statutes affecting rights already in existence; but that statutes which made changes only to the means by which rights were enforced, affected procedures and not the right itself. The latter could operate with respect to accrued rights without infringing the rule. In particular, the Commission placed reliance upon the application of that statement of the rule in Rodway v The Queen (1990) 169 CLR 515.

Ratio Decidendi

Legal Principle Established

Established by: LEE, COOPER, KIEFEL JJ

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