FEDERAL COURT OF AUSTRALIA
Repatriation Commission v Knight [2012] FCAFC 83
Citation: Repatriation Commission v Knight [2012] FCAFC 83 Appeal from: Knight v Repatriation Commission [2011] AATA 496 Parties: REPATRIATION COMMISSION v JACQUELINE KNIGHT File number: NSD 1359 of 2011 Judges: FINN, GILMOUR & PERRAM JJ Date of judgment: 6 June 2012 Catchwords: DEFENCE AND WAR – Veterans’ entitlements – widow’s pension claim – death of veteran from myocardial infarction following exposure to tobacco smoke in the Navy – application of Statement of Principles concerning Ischaemic Heart Disease (No 89 of 2007) to determine whether death was ‘war-caused’ – whether Tribunal considered connexion between service and death – whether Tribunal should instead have considered connexion between service and smoke exposure – whether Tribunal erroneously imposed a burden of proof – whether the last exposure to tobacco smoke during operational service must be within five years of the clinical onset of ischaemic heart disease in order for cl 6(i) of the Statement of Principles to be satisfied
ADMINISTRATIVE LAW – Administrative Appeals Tribunal – whether Tribunal took irrelevant considerations into account – whether Tribunal failed to make necessary findings – whether Tribunal failed to give reasons – whether the Court, having detected error in the reasoning of the Tribunal, may nonetheless dismiss the appeal on the basis that, despite the error, the Tribunal’s decision was plainly correct
Legislation: Veterans’ Entitlements Act 1986 (Cth) ss 13(1)(a), 41(1), 120, 120A, 196B(14)
Statement of Principles Concerning Ischaemic Heart Disease (No 89 of 2007) cll 5, 6(i)
Cases cited: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 cited
Hill v Repatriation Commission (2005) 218 ALR 251; [2005] FCAFC 23 followed
Knight v Repatriation Commission (2010) 52 AAR 547; [2010] FCA 1134 affirmed
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 citedDate of hearing: 17 February 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 48 Counsel for the Applicant: RM Henderson Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: M Vincent Solicitor for the Respondent: Kemp & Co Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1359 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: REPATRIATION COMMISSION
ApplicantAND: JACQUELINE KNIGHT
Respondent
JUDGES:
FINN, GILMOUR & PERRAM JJ
DATE OF ORDER:
6 JUNE 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1359 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: REPATRIATION COMMISSION
ApplicantAND: JACQUELINE KNIGHT
Respondent
JUDGES:
FINN, GILMOUR & PERRAM JJ
DATE:
6 JUNE 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT:
In this case the Administrative Appeals Tribunal decided that the respondent, Mrs Knight, should be granted a widow’s pension because the death of her…
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CaseChat Overview and Summary
The court found that the Tribunal had indeed erred in its analysis by focusing on the connection between Mr Knight's service and his death, rather than the connection between his service and his exposure to tobacco smoke. However, this error did not affect the outcome of the case, as the Tribunal's finding that Mr Knight had been exposed to tobacco smoke during his service determined the matter in favour of Mrs Knight. The court also held that the Tribunal had not taken into account irrelevant considerations, nor had it failed to make necessary findings or provide reasons for its decision. Consequently, the court dismissed the Repatriation Commission's appeal, finding that the Tribunal's decision was correct despite the error in its reasoning.
1. The appeal be dismissed.
2. The appellant pay the respondent's costs.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
That issue, however, is not one this Court is called upon to resolve. Instead the questions to be resolved are the Repatriation Commission’s challenges to the lawfulness of the Tribunal’s reasoning at [38] above. There were five such challenges. An unnotified sixth matter was pursued at the hearing.First issue: erroneous consideration of connexion between service and death The first challenge took issue with the first sentence of [38] (set out above at [10]). There is no doubt, as the Repatriation Commission correctly observed, that this sentence literally suggests that the Tribunal asked itself whether Mr Knight’s service materially contributed to ischaemic heart disease. Nor is it to be doubted that this is not the inquiry required by s 196B(14)(d) which seeks to discern a connexion not between the service and the veteran’s disease or death but instead between the service and the factor (here exposure to tobacco smoke). The Court has already held, in this very case, that it is an error to inquire into whether there is a connexion between service and death and that the statutory inquiry is whether there is a connexion between service and the posited factor: Knight v Repatriation Commission (2010) 52 AAR 547; [2010] FCA 1134 at [47] per Katzmann J. As Katzmann J explained in the earlier decision the difference can be critical. In this case it is the difference between asking (incorrectly) whether Mr Knight’s service in the Navy contributed to his death and asking (correctly) whether his service in the Navy contributed to his exposure to tobacco smoke. In our opinion, however, whilst it is true that the Tribunal did err in law in approaching the matter in this way this error is not material to the outcome of the case. For the reasons which follow, the Tribunal’s factual finding that the veteran had been exposed to tobacco smoke during operational service determined the matter inevitably in Mrs Knight’s favour. The inquiry demanded by s 196B(14)(d) in relation to material contribution &c. is significantly different to the usual questions of that kind which arise in ordinary personal injury litigation. In most personal injury litigation contexts the question of material contribution will arise in a domain where what is sought to be discerned is some species of causative connexion between an ailment (which the claimant alleges he or she has) and an event or situation for which the claimant seeks compensation. A typical example of this kind of situation was afforded by the former s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) which defined a ‘disease’ as an ailment ‘that was contributed to in a material degree by the employee’s employment by the Commonwealth’. Section 196B(14) is quite different because its focus is on the connexion between the employment (that is, in this context the veteran’s service) and the ‘factor’ specified in the relevant Statement. On occasions, this can generate confusion. That confusion can arise because of the conceptually malleable nature of a ‘factor’, its intermediate role in the elaborate apparatus of s 196B and because the ultimate causal questions posed by s 196B(14) do not seek to determine whether the operational service caused the death or disease. In many ways, this is a counterintuitive posture for the Act to adopt but it is an inevitable consequence of seeking to specify in advance, through the system of statements of principles, the outcome of various – often controversial – medical issues of causation. To give perhaps a simplistic example, if the relevant Statement specifies that exposure to Agent Orange is accepted to cause cancer then the issue is not, as it might be in ordinary personal injury litigation, whether the employment caused cancer, but rather whether the employment (i.e. service) caused exposure to Agent Orange. It is these intermediate events which are the ‘factors’ upon which the Act operates. It does so not only by way of specification though a Statement but also by way of causal inquiry under s 196B(14). By adopting that approach, complex as it is, the Act ensures that these at times controversial causation questions are determined in the same way in every case and without the need for the summoning of expert evidence on the issue in each hearing before the Tribunal.