Repatriation Commission v Linton
[2001] FMCA 124
•20 December 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
REPATRIATION COMMISSION v LINTON [2001] FMCA 124
VETERANS AFFAIRS – Veteran’s entitlements – disability pension – appeal from decision of Administrative Appeals Tribunal – error of law – failure to properly apply Statement of Principles – whether chronic airflow limitation war-caused.
ADMINISTRATIVE LAW – Failure to provide reasons as required by s 43(2B) of the Administrative Appeals Tribunal Act 1975 – failure to consider relevant submission.
Administrative Appeals Tribunal Act 1975 s 43(2B), 44
Veterans Entitlement Act 1986 s 9, 119, 120(1), 120A(3), 196B(2)
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gosewinckel (1999) FCA 1273
Connors v Repatriation Commission 59 ALD 61
Ingram v Repatriation Commission 2001 FMCA 125
Hill v Repatriation Commission (2001) FMCA 83
Dennis Wilcox Pty Ltd v Federal Commissioner of Taxation (1988) 99 ALR 267
Repatriation Commission v Rogers (1999) FCA 489
Harris v Repatriation Commission (2000) FCA 873
| Applicant: | REPATRIATION COMMISSION |
| Respondent: | GRAHAM ALEXANDER LINTON |
| File No: | MZ 239 of 2000 |
| Delivered on: | 20 December 2001 |
| Delivered at: | Melbourne |
| Hearing Date: | 15 December 2000 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr P Hanks QC |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Solicitor for the Respondent: | Mr D De Marchi |
| Solicitors for the Respondent: | De Marchi & Associates |
ORDERS
The appeal be allowed.
The decision of the Administrative Appeals Tribunal dated 27 July 2000 be set aside.
The decision of the Commission dated 29 November 1995 be affirmed save that in lieu of the reference to “asthma” there be inserted reference to “chronic airflow limitation and/or chronic bronchitis”.
The respondent pay the applicant’s costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE
MZ 239 of 2000
REPATRIATION COMMISSION
Applicant
And
GRAHAM ALEXANDER LINTON
Respondent
REASONS FOR JUDGMENT
Background
The Repatriation Commission (the Commission) is the Applicant in an appeal pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) from a Decision of the Administrative Appeals Tribunal (the AAT) delivered on 27 July 2000.
GRAHAM ALEXANDER LINTON (Mr Linton) had applied to the AAT to set aside a Decision of the Commission which had been made in response to a claim for pension lodged on 1 September 1995.
The Commission decided that Mr Linton’s asthma was not a war caused disease. The AAT amended the diagnosis of the claimed condition to “Chronic Airflow Limitation” (CAL). The AAT then decided that Mr Linton’s CAL was war caused within s 9 of the Veterans Entitlements Act 1986 (the VE Act). As a consequence of the AAT Decision the Commonwealth is liable to pay a pension under s 13 of the VE Act for Mr Linton’s incapacity from CAL.
Certain facts before the Court were not in issue and likewise had not been in issue before the AAT. In summary those facts are that Mr Linton was born on 2 August 1950. He served in the Royal Australian Navy from 10 July 1966 to 31 July 1979. He rendered operational service within the meaning of the VE Act. His operational service covered allotment for duty on the HMAS Sydney involving service in Vietnam over the following periods totalling 59 days:
· 8 May 1969 to 30 May 1969 (22 days)
· 17 November 1969 to 5 December 1969 (20 days)
· 16 February 1970 to 5 March 1970 (17 days)
Mr Linton is a veteran within the meaning of the VE Act. At the hearing in the AAT it was agreed that the most significant cause of respiratory difficulties for Mr Linton is CAL and it was on that basis the AAT therefore was prepared to amend the diagnosis of the claimed condition to CAL. Before the AAT Mr Linton’s representative advised that Mr Linton “relies solely upon his periods of operational service and not on any period of other (eligible service)”. In setting aside the Decision under review the Tribunal substituted that Decision as follows:
“(a)That the diagnosis asthma is amended to chronic airflow limitation;
(b)That chronic airflow limitation is war-caused within the meaning of section 9 of the Veterans’ Entitlements Act 1986 (“the Act”);
(c)That the applicant is incapacitated from chronic airflow limitation for which the Commonwealth is liable to pay pension in accordance with the Act;
(d)That the degree of incapacity suffered by the applicant from war-caused injury or disease is assessed at 100 per cent for the purposes of payment of pension at the General Rate, from 11 October 1995.”
In submissions made on behalf of the Commission it was submitted that the errors of law raised by the grounds of appeal fall into four groups namely:
“first, errors on the part of the AAT in its construction and application of the Statement of Principles (SoP) for chronic airflow limitation;
second, a failure on the part of the AAT to appreciate that the material before it was such that the AAT was bound to conclude that chronic airflow limitation was not war-caused; and
third, a failure on the part of the AAT to consider and deal with the Commission’s submission relating to the application of the SoP; and
fourth, a failure on the part of the AAT to provide reasons for its decision, as required by s 43(2) of the AAT Act.”
The grounds for appeal are:
“(a)The Tribunal erred in its application of subsection 120A(3) of the VE Act in that it failed to consider whether the hypothesis, which the Tribunal identified as raised by the material before the Tribunal, contained the elements prescribed by the SoP – in particular, whether the hypothesis included the fact that Mr Linton’s consumption of 73,000 cigarettes prior to the clinical onset of chronic airflow limitation was “related to” his operational service.
(b)The Tribunal erred in its construction of the SoP by holding that it was sufficient, in order for a hypothesis to be upheld by the SoP for the purposes of subsection 120A(3) of the VE Act, that the hypothesis contain the fact that Mr Linton was smoking at least ten pack years before the clinical onset of chronic airflow limitation, without regard to whether that level of smoking was “related to” Mr Linton’s operational service.
(c)The hypothesis found by the Tribunal to be raised by the material before the Tribunal (identified in paragraph 64 of the Tribunal’s Reasons) was such that it could not be upheld by the SoP within subsection 120A(3) of the VE Act – because, on the hypothesis raised or pointed to by the material, the level of Mr Linton’s consumption of cigarettes (related to his operational service, as required by clause 2 of the SoP) was less than half of the level prescribed by paragraph 1(a) of the SoP.
(d)The material before the Tribunal was such that it was not open to the Tribunal to find that the material raised (or pointed to) a hypothesis that Mr Linton had a consumption of 73,000 cigarettes, which consumption was “related to [his operational] service” within clause 2 of the SoP, before the clinical onset of chronic airflow limitation.
(e)The Tribunal erred in law by failing to consider and deal with the Commission’s submission that that part of Mr Linton’s consumption of cigarettes which was not attributable to his operational service could not be taken into account for the purposes of the requirements of the SoP.
(f)The Tribunal erred in law by failing to provide reasons, as required by subsection 43(2) of the Administrative Appeals Tribunal Act 1975, in respect of any finding implicit in the Tribunal’s Reasons that Mr Linton’s consumption of 73,000 cigarettes (as required by paragraph 1(a) of the SoP) was related to his service (as required by clause 2 of the SoP).”
At the outset I should indicate that I had decided to deliver judgment in this application at the same time that I deliver judgment in another application before the Court namely the matter of Ingram v Repatriation Commission 2001 FMCA 125. It is significant to note that the Statement of Principles (SoP) which was before the AAT was Instrument No 17 of 1994 concerning chronic airflow limitation as amended by Instrument No 65 of 1994. Hence within approximately two months the SoP had been amended. I became aware that the Full Court of the Federal Court had considered the issue of which SoP is to apply and hence I thought it appropriate to at least wait for the outcome of those decisions. I have in fact referred to those Federal Court decisions in Hill v Repatriation Commission (2001) FMCA 83 and for the purpose of this application adopt and apply the following passage from my judgment,
“6. Since the decision of the Tribunal, the Full Court has delivered two decisions dealing with the issue of which SoP is to apply. I was referred to Repatriation Commission v Gorton (2001) FCA 1194 delivered 29 August 2001 and Repatriation Commission v Williams (2001) FCA 1195, also delivered 29 August 2001. In Gorton’s case, Alsop J stated:
“If the Tribunal, in reviewing a decision, comes to a conclusion in favour of the claimant by first applying the current SoP, the SoP current at the date of the Commission’s decision (now repealed) may not need to be examined; its relevance having fallen away. However, if, by reference to the current SoP, the Tribunal is of the view that the claim should be refused, it should not do so without then assessing the rights of the parties under the accrued right recognised by Keeley; by reference to the repealed SoP. That is not a right of ‘election’. It is a sequential approach mandated by a combination of the Act and the Full Court’s decision in Keeley”.
In the present case Counsel for Mr Linton urged me to receive as part of this application Statement of Principle No 73 of 1997. I agreed to that course. Perhaps not surprisingly Counsel for the Commission had indicated that to receive the more recent SoP would be to receive a document which is irrelevant. However in the light of the decisions to which I have referred namely Gortons case and Williams case, it is appropriate at the very least I should consider a comparative analysis of the SoP’s to which reference has been made. A core issue in the present case is whether the Tribunal had properly related its findings to operational service. Though not part of its Reasons for Decision I note that the catchwords of the Tribunal’s Decision certainly suggests that there is a reference to operational service where the catchword provides, "whether arose out of or was attributable to periods of operational service”. In its discussion on the appropriate standard of proof the Tribunal states, “The standard of proof in determining the issue of causation in respect of Mr Linton’s period of operational service is that which is provided in subsections 120(1) and 120(3) of the Act”.
By comparing the three SoP’s it is noteworthy that all are issued pursuant to subsection 196B(2) of the VE Act. It is relevant to set out that section as follows:
“(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peace-keeping Forces; or
(c)hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.”
It is clear from that section that any SoP issued must relate for the purpose of the present application to “operational service rendered by veterans”. In the light of that enabling provision it does not matter in my view that in paragraph 1 of SoP No 17 of 1994 there is a reference to “operational service” whilst in paragraph 2 reference is made to “any service”. Likewise in the more recent and potentially applicable SoP No 73 of 1997 the reference in paragraph 3 to “relevant service” and to “any relevant service” in paragraph 4 does not provide support for any proposition that the Tribunal in the application before it was entitled to consider contributions to the smoking of Mr Linton save for those attributable to operational service. The essential issue in the present case seems to be whether the evidence of cigarette consumption can be related to operational service.
Whilst there is a difference in terminology in the relevant SoP’s it is imperative to consider the enabling the provision namely s 196B which clearly requires a causative link to be made between operational service and does not permit consideration for the purpose of the present case of any other service. This is perfectly consistent with the reliance placed by the representative of Mr Linton before the Tribunal upon periods of operational service and “not on any period of other (eligible) service”. I do not see that there would be any different outcome by applying the different SoP’s. The question is whether the Tribunal has erred in its construction and application of the SoP for CAL and upon a proper consideration of the material before it was thereby bound to conclude that CAL was not war caused. That is the substantive issue before this court and it is noted that the third and fourth groups referred to by Counsel for the Commission are to some extent related though it may be unnecessary to consider those in the light of a consideration of the first two groups, namely the construction and application of the SoP and failure of the AAT to appreciate the material before it was such that it was bound to conclude the CAL was not war caused.
Legislative framework
In written submissions Counsel for the Commission set out the legislative framework. The framework has been referred to in a number of cases and there does not seem to be very much debate about the relevant provisions. Hence I will simply paraphrase the submissions made by Counsel for the Commission.
I accept that s 9 of the VE Act prescribes the circumstances in which a veteran’s disease shall be taken to be war caused including where the disease arose out of or was attributable to the veteran’s war service (s 9 (1)(b) of the VE Act).
As the claim made by Mr Linton is that the CAL was a consequence of operational service the question of whether that disease was war caused within s 9 of the VE Act is to be determined by applying
s 120(1) and 120(3). It is appropriate to refer to the High Court Decision in Byrnes v Repatriation Commission (1993) 177 CLR 564 where the Court states at 571 the following:
“The position may be summarized as follows: (1) First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or tenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s. (1) of s. 120 is applied. 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, thus disproving, beyond reasonable doubt, the hypothesis.”
It is submitted and again I accept that as a result of Mr Linton’s claim being lodged on 1 September 1995 that the application of s 120(1) and (3) is affected by s 120A of the VE Act. Section 120A(3) of the VE Act provides that a hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force an SoP that upholds the hypothesis. The conclusion directed by s 120A(3) that the hypothesis is not reasonable because it is not upheld by the relevant SoP would oblige the decisionmaker to reach a negative decision under 120(3). The decisionmaker would then be required by s 120(3) to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the injury, disease or death is war caused and that conclusion would lead to the decision under s 120(1) that the injury, disease or death is not war caused.
It is useful to refer to the Full Court of the Federal Court’s Decision in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 where the court states:
“At the risk of being repetitious we would re-state the course which the Tribunal is to take in a case, such as the present, (that is one involving a claim to be decided after the 1994 amendments) 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 that person as follows:
1 The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2 If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3 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. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service [as required by ss 196B(2)(d) and (e)]. If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4 The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
Counsel for the Commission relied particularly upon the third step identified by the Full Court in Deledio’s case and submitted that the hypothesis raised or pointed to by the whole of the material must be upheld by the SoP – the hypothesis will be reasonable “if the hypothesis fits, that is to say, is consistent with the `templates’ to be found in the SoP” (see Deledio at p 97). If the hypothesis fails to fit the template it cannot be reasonable and the claim will fail.
I accept the further submission made in relation to the legislative framework that the hypothesis raised by the material before the AAT must include the elements prescribed by the SoP (see Repatriation Commission v Gosewinckel (1999) FCA 1273 at p 61).
I was referred to the Decision of Kenny J in Connors v Repatriation Commission 59 ALD 61 and in particular the following useful passage:
“[18] The applicant referred to Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569-70; 30 ALD 1; 116 ALR 210, Bushell, and Bey at FCR 373 for the proposition that, in some cases, a hypothesis may assume the occurrence of certain facts and the making of the assumption does not render the hypothesis unreasonable. That was, plainly enough, the position prior to the introduction of ss 120A and 196B by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth); and in relation to claims made before 1 June 1994; see Repatriation Commission v Stares (1996) 66 FCR 594 at 601; 41 ALD 212. Thus, in Byrnes at CLR 570, ALD 5; ALR 214, the High Court held that:
[T]he appellant’s hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the Commission did not reveal the extent of the injury which he then suffered.
Section 120A did not, however, apply to any of cases relied on by Mr Connors in this connection (namely Byrnes, Bushell and Bey) since none of them concerned claims made on or after 1 June 1994. Where there is a SoP determined under s 196B(2), then, pursuant to s 120A(3), a hypothesis is reasonable only if it is upheld by the SoP. Pursuant to s 196B(2), the SoP must set out “the factors that must as a minimum exist” and “which of those factors must be related to service”. The result is that, where it applies, the SoP prescribes the essential content of what is a reasonable hypothesis, for s 120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of the veteran’s particular service. Because the existence of one of the 10 factors specified in cl 5 of the SoP is an essential ingredient of that hypothesis, the material before the decision-maker must point to one of those factors. Whatever the situation may have been in relation to claims before 1 June 1994, the effect of s 120A(3), where it applies, is that a hypothesis must be supported by evidence pointing to each individual element in an SoP for the hypothesis to be reasonable; cf Shelton v Repatriation Commission (1999) 85 FCR 587”.
It is noteworthy that in the present case the SoP relied upon namely Instrument No 17 of 1994 as amended provides for the following factor, “Smoking at least ten pack years before clinical onset of chronic airflow limitation”. For the sake of completeness I should add that the apparent relevant factor set out in SoP 73 of 1997 is: “Smoking at least ten pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic or bronchitis and/or emphysema”. That SoP 73 of 1997 includes in the definition of chronic bronchitis “chronic airways obstruction or limitation with or without a reversible component”. It was not suggested that this refers to a different condition to that suffered by Mr Linton when reference was made to SoP 73 of 1997 and the court was urged to receive it as a relevant document by Mr Linton’s representative.
The term “pack year” has consistently been defined in the SoP’s as “7,300 cigarettes”. Accordingly a ten-year period would involve the consumption of 73,000 cigarettes. It is submitted and I accept that the smoking of at least ten pack years must be related to the service rendered by the person which in the present case, is operational service. This again relates to the ordinary meaning of s 196B(14) which clearly defines the circumstance in which a factor can be related to service. I accept that it requires a causal relationship between Mr Linton’s operational service and the consumption of 73,000 cigarettes.
Mr Linton’s representative did not seem to disagree that the cases to which I have referred are relevant and should be applied in the present appeal. He added however that in dealing with the legislative framework I should also have regard in the interpretation of the AAT’s Decision to s 119 of the VE Act. In addition he reminded the Court that the legislation is beneficial. A similar argument was advanced in the matter of Hill v Repatriation Commission. I refer to and adopt the comments I made in that case concerning s 119 as follows:-
“48. I cannot see any evidence in the present case to suggest that the Tribunal has contravened s 119 of the Act. It is correct to say, as submitted by the Respondent in the present case, that this court should not allow an applicant to rely upon s 119 of the VE Act in circumstances where it would involve inventing evidence which may serve to establish a necessary connection between the injury and war service (See Mason v Repatriation Commission (2000) FCA 1409 and Grundman v Repatriation Commission (2001) FCA 6892).
49 In Mason v Repatriation Commission, Weinberg J stated,
“Both parties noted that it is not the function of s 119(1) to fill gaps, where the evidence does not assist the applicant’s case. This is of course correct. The function of s 119(1) is set out in Repatriation Commission v Bey (1997) 79 FCR 364 where four judges in a five-judge court said at 373-4:
`…. In order for the hypothesis advanced by the respondent to be reasonable, there must be material pointing to a connection between his disease and war service. The material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119(1)(g). The requirement to act according to substantial justice does not replace the Tribunal’s obligation to act in accordance with law. Paragraph (h) of s 119(1) is a provision of the same character as par (g): see words which introduce it – “without limiting the generality of the foregoing”. Thus, like par (g), it does not authorise the Tribunal to depart from the meaning of provisions of the Act as expounded by judicial decisions’.”
Submissions on behalf of Commission
Counsel for the Commission submitted that before the AAT could decide that Mr Linton’s CAL was war caused it needed to find that the material before it raised a hypothesis connecting the disease with Mr Linton’s operational service. It was submitted that the hypothesis included two elements. The first is that Mr Linton smoked at least 73,000 cigarettes before the clinical onset of his chronic airflow limitation up to and including 1978 as required by the relevant SoP. Secondly, that consumption of cigarettes was related to Mr Linton’s operational service as required by the SoP.
It was submitted that for the hypothesis to include those elements the material before the AAT would need to raise or point to each of the two elements identified and only then could it be said that the hypothesis fitted the template of the SoP.
During the course of submissions I was referred to paragraph 64 and 66 of the Tribunal’s Reasons for Decision. It is useful to set out those paragraphs as follows:
“64. The facts which are raised by the material and which point to a hypothesis are essentially:
(a)That Mr Linton suffers from chronic airflow limitation;
(b)That he was not a smoker prior to joining the Navy on 10 July 1966;
(c)That after joining the Navy he commenced smoking about one packet of cigarettes per day;
(d)That thereafter he continued to smoke with his level of smoking increasing to 40, sometimes 60, cigarettes per day while on his operational deployments in the SYDNEY;
(e)That immediately prior to and during his periods of deployment he experienced increased levels of apprehension and stress associated with the fact of deployment into a war zone, the nature of his duties; the environment in which he was required to perform his duties, and a degree of peer group influence onboard ship;
(f)That although his level of smoking tended to decrease immediately following each period of deployment, the level thereafter was generally in the order of some 30 cigarettes per day;
(g)That clinical onset of chronic airflow limitation occurred some time after 1978.
WHETHER HYPOTHESIS REASONABLE
66.It is our view that the hypothesis raised by the facts set out above is reasonable in that it contains one of the factors of (paragraph 1(a)) which the RMA has determined to be the minimum which must exist, and be related, to Mr Linton’s service as required by subsection 196B(2)(d) and (e) of the Act. The hypothesis is consistent with the “template” to be found in the relevant SoP. That is to say Mr Linton was smoking at least ten pack years before the clinical onset of chronic airflow limitation.”
It was submitted that during the course of that reasoning process the Tribunal had identified a hypothesis which was pointed to by the material before it and that although the hypothesis is not spelt out separately in the paragraphs to which I have referred it was submitted that “the hypothesis must be that by reason of his operational service Mr Linton increased his cigarette smoking which was already established prior to his operational service at a rate of 20 cigarettes a day”.
Although the hypothesis is not clearly referred to in the Reasons for Decision I was urged to accept that by inference at least I should be prepared to conclude that the hypothesis is one based upon an increase in cigarettes during the operational period of service.
Whilst it was noted that the Tribunal in paragraph 66 set out above has turned its mind to the third step in Deledio’s case it had made no reference to clause 2 of SoP No 17 of 1994 which provided that at least one of the factors set out in paragraphs 1(a) to 1(e) must be related to any service rendered by a person. As indicated it has been submitted by application of s 196B of the VE Act a failure to relate the SoP to the operational service would go beyond the power permitted by operation of that section. I note in passing however that SoP 73 of 1997 in considering the basis for determining the factors refers to the evidence which “can be related to relevant service rendered by veterans”. In clause 4 it refers to the factors set out in the new clause 5 as being factors which “must be related to any relevant service rendered by the person”. Again I stress that relevant service clearly needs to relate back to the enabling provision namely s 196B of the VE Act.
In relation to the fourth step as set out in Deledio, it was noted by Counsel for the Commission that the AAT had said it was not satisfied beyond reasonable doubt that Mr Linton’s incapacity did not arise from war caused injury because “none of the facts upon which the hypothesis relies have been disproved beyond reasonable doubt” (See paragraph 70 of the AAT Reasons for Decision). It was submitted that the AAT had made no reference to the need to ensure that the factors were related to the service rendered.
In support of grounds 4(a) and (b) it was submitted that the hypothesis identified by the AAT was not a hypothesis that Mr Linton’s consumption of 73,000 cigarettes was related to his operational service. Instead the hypothesis of the AAT was that Mr Linton commenced smoking shortly after joining the Navy in 1966 and could not therefore be related to his eligible service which for the purpose of the VE Act consisted only of three periods of operational service totalling 59 days. The consumption of cigarettes prior to his operational service could not be taken into account when considering whether Mr Linton had accumulated the total consumption related to operational service. The continuing increased level of consumption it was submitted during the period after Mr Linton’s operational service (that is from May 1969 to 1978) could also be attributed to that service on the basis that he maintained an established level of smoking but the level of consumption was no more than a continuation of his pre-operational service consumption (20 cigarettes a day) and could not form part of the hypothesis required to fit the template. In using the levels of consumption found by the AAT the Commission submitted that putting it at its highest the details are as follows:
May 1969 (22 days at 60 a day) 1320 cigarettes
November-December 1969 (20 days at 60 a day) 1200 cigarettes
February-March 1970 (17 days at 60 cigarettes) 1020 cigarettes
1970-1978 (9 years at 10 cigarettes) 32850 cigarettes
Total consumption 35210 cigarettes
Accordingly based on the details set out in the previous paragraph it was submitted that Mr Linton’s consumption of cigarettes related to operational service was less than half the level of consumption required by the SoP of 73,000.
It was submitted that because the hypothesis raised by the material before the AAT could not fit the template prescribed by the SoP it followed that according to s 120A(3) of the VE Act that the hypothesis could not be reasonable for the purposes of s 120(3) of the VE Act. The hypothesis could not be a reasonable hypothesis because it did not include the elements prescribed by the SoP (Repatriation Commission v Gosewinckel (1999) FCA 1273 at paragraph 61) and the hypothesis was not supported by evidence pointing to each individual element in the SoP (see Connors v Repatriation Commission 2000 FCA 783 at paragraph 18). The missing element it was said was the relationship with Mr Linton’s consumption of at least 73,000 cigarettes to operational services. By way of summary Counsel for the Commission submitted that the AAT’s error could be expressed in a number of ways and in written submissions stated the following:
“29.1First, the AAT failed to ask a critical question posed by the SoP – was Mr Linton’s smoking of at least 73,000 cigarettes “related to” his operational service? The failure to ask that question meant that the AAT failed to ask whether the hypothesis fitted the template prescribed by the SoP. This is the error of law identified in ground 4(a) in the Notice of Appeal – AB 256.
29.2Second, the AAT erred in its construction of the SoP by (implicitly) holding that it was sufficient, for the hypothesis to be upheld by (or fit) the SoP, that the hypothesis simply contain the fact of smoking 73,000 cigarettes before the clinical onset of chronic airways limitation, whether or not that smoking was related to Mr Linton’s operational service. See ground 4(b) in the Notice of Appeal – AB 256.
29.3Third, the hypothesis raised or pointed to by the material before the AAT was incapable of being upheld by (or fitting) the SoP – because the level of Mr Linton’s smoking that could be related to his operational service was less than half of the prescribed level. This is ground 4(c) in the Notice of Appeal – AB 256.
29.4Fourth, the material before the AAT (summarised in para 28-57 of the AAT’s Reasons – AB 239-243) did not permit the AAT to find that a hypothesis consistent with the SoP was raised or pointed to by that material – for the same reason as that identified in paragraph 29.3 above. See ground 4(d) in the Notice of Appeal AB 256-257.”
In support of the submission based upon ground 4(e) in the notice of appeal I was referred to transcript which was admitted by way of supplementary material wherein the Commission’s representative at the AAT hearing stated the following:
“We would say that any component of his smoking history that existed prior to 8 May 1969 … could not be taken into account in the Tribunal determining whether or not the requisite quantity of smoking in the {SoP} is met. At best, we say only an increase in smoking that can be directly attributed to operational service, which may or may not continue after that period of operational service, can be taken into account in assessing whether or not the {SoP} factor is met.” (emphasis added)
The failure to deal with a submission worthy of consideration is claimed by the commission to be an error of law either by way of breach of s 43(2) and (2B) of the AAT Act or because it brings about a miscarriage of justice by disabling the Court from deciding whether the AAT’s Decision was vitiated by error of law (see Dennis Wilcox Pty Ltd v Federal Commissioner of Taxation (1988) 99 ALR 267 at 276-277 and Repatriation Commission v Rogers (1999) FCA 489 at paragraph 13).
It was finally submitted that the failure to record a finding of fact by the Tribunal that it did address the appropriate clause of the SoP and finding the material before it raised a hypothesis that Mr Linton’s smoking was related to operational service amounted to an error of law because it failed to meet the requirement of s 43(2B) of the AAT Act.
For the Commission I was urged that if I should find that the errors of law set out in grounds 4(a), (b), (e) or (f) are made out then the appeal should be allowed, the Decision of the AAT set aside and the matter remitted to the AAT to be determined according to law. If I were to find that the errors of law set out according to grounds 4(c) or 4(d) are made out then I should allow the appeal, set aside the decision and substitute a decision that Mr Linton’s chronic airways limitation is not war caused.
Submissions on behalf of Mr Linton
Mr Linton’s representative seemed to me to agree substantially with the analysis of the legislative background though in addition as indicated sought to rely upon s 119 of the VE Act which I have already rejected. Many of the submissions concerning the stressful nature of the environment during operational service and evidence that it then led to an increase in consumption of cigarettes was not challenged by counsel for the Commission.
During the course of submissions as indicated earlier in these Reasons for Judgment I had allowed Mr Linton’s representative to rely upon SoP No 73 of 1997 on the basis that it might be relevant to the question of whether the court should remit the matter rather than make a decision in substitution for the AAT decision.
It was submitted on behalf of Mr Linton that post operational service period is “bound within that operational service period”. When asked whether he was submitting that the hypothesis is that the total consumption of 30 cigarettes post operational service is all connected with the operational service Mr Linton’s representative answered “Indeed”. He encouraged me to find that that was the hypothesis that I should read into paragraph 66 of the Tribunal’s Reasons to which I have previously referred.
Specific reference was made to that part of paragraph 66 where the Tribunal stated, “and be related to Mr Linton’s service as required by sub-section 196B(2)(d) and (e) of the Act”. I was invited to draw the conclusion that the AAT had found as a matter of fact that the cigarette consumption post operational service had all arisen as a result of the operational service. When I asked Mr Linton’s representative to refer to evidence then before the Tribunal upon which it could rely to sustain a conclusion that the consumption of 30 cigarettes per day for the period 1970 to 1978 was related to operational service I was referred to evidence which appeared in the Appeal Book and in particular Mr Linton’s statement that after he got back at the end of May 1969 he reduced his cigarette consumption to “an average of probably 30, between 30 and 40”. I was further taken to evidence about changes that occurred in the smoking throughout the rest of Mr Linton’s naval service and in particular the evidence in relation to his third trip in February/March 1970 where he said, “It increased with each trip. Smoking increased closer to when the departure came”. It was suggested that I should not be looking strictly at the evidence or approaching the task in a technical way.
It was submitted that it was open to the AAT to consider SoP No 73 of 1997 which it was submitted was also met by Mr Linton.
In relation to the failure to consider the respondent’s submission and therefore provide adequate reasons Mr Linton’s representative submitted that the AAT had taken into account the exact dates of operational service and was well aware of Mr Linton’s defence service. Further it was submitted that the Tribunal does not need to list each and every one of its findings in order to comply with the requirement to provide reasons and that not every omission will amount to a failure to comply with s 43(2B). I was again referred to the decision of Wilcox v Federal Commissioner of Taxation.
If contrary to the submissions made by Mr Linton I were to find that there had been an error of law then I was invited to conclude that it would be futile to remit the matter as the Tribunal would more likely than not come to the same conclusion (see Harris v Repatriation Commission (2000) FCA 873).
Reasoning
Applying the principles of law which I have referred to earlier in this judgment concerning the legislative framework in my view there has been a clear error of law and each of the grounds have been established.
The logical starting point in relation to the consideration of an SoP must be the enabling legislation and in particular s 196B. The requirement that the consumption of cigarettes in total over the period of ten years be related to operational service is clear from the legislation and the SoP’s. Although the wording of the SoP’s have changed as indicated by amendment of 17 of 1994 by No 64 of 1994 and then by further significant amendment with the introduction of Instrument No 73 of 1997 there is a common theme throughout which accurately reflects the legislation. That theme requires a connection between the factors set out in the SoP and what is more recently referred to as “any relevant service”. It is inconceivable in my view that relevant service could mean anything other than operational service in the present case and to that extent I am satisfied that the Tribunal has erred in its failure to properly interpret and apply sub-s 120(A)(3) of the VE Act in that it failed to consider as claimed in ground 4(a) whether the hypothesis which it identified contained the elements prescribed by the SoP namely that Mr Linton’s consumption of cigarettes prior to the clinical onset of his CAL was related to his operational service.
Ground 4(b) which refers to the construction of the SoP must likewise be upheld. If the Tribunal had turned its mind to the relationship between the consumption of cigarettes and operational service then the finding of fact would have led it to conclude by a proper construction of the SoP that at best the consumption of cigarettes related to operational service was less than half the level prescribed. This in turn supports a conclusion that ground 4(c) has been established.
On the material before me I am further satisfied that the submissions made for and on behalf of the Commission are correct in support of ground 4(d) in that on the material clearly set out in those submissions it was not open to the Tribunal to find that Mr Linton had a consumption of 73,000 cigarettes related to his operational service.
The supplementary material which included an extract from the transcript referred to earlier in the Reasons for Judgment indicate in clear terms that the Commission’s representative had raised a submission which in my view was both relevant and worthy of consideration namely that “At best we say only an increase in smoking that can be directly attributed to operational service which may or may not continue after the period of operational service can be taken into account in assessing whether or not the SoP factor is met”. I have looked carefully at the Reasons for Decision of the Tribunal and during the course of submissions I raised doubts about whether in fact the hypothesis had been clearly stated in paragraph 64 and/or paragraph 66 of the Tribunal’s Reasons for Decision. I note however that at least in paragraph 66 a passing reference is made to the requirement that the factors must be related to Mr Linton’s service though in my view, save for a reference to operational service in paragraph 15 which refers to standard of proof and as indicated earlier in this Decision a reference in the catchwords, there does not appear to be a specific reference to the submission made for and on behalf of the Commission to which I have just referred.
In those circumstances I am satisfied that in this particular case the failure to deal with that relevant submission which was clearly worthy of consideration does constitute an error of law.
It also follows that a further error of law has occurred by the Tribunal in failing to meet the requirements of s 43(2B) of the AAT Act. Without analysing the hypothesis in detail and failing to take account of and/or deal with the submission made for and on behalf of the Commission to which I have referred, it is difficult to understand the basis upon which the Tribunal reached its decision that it was not satisfied beyond reasonable doubt that Mr Linton ‘s incapacity did not arise from a war caused injury and that none of the facts upon which the hypothesis relies had been disproved beyond reasonable doubt. By failing to relate in its findings of fact to the cigarette consumption with operational service and moreover failing to have regard to a relevant submission it is difficult to understand how theTribunal reached its Decision. The failure to provide a sufficient basis upon which the Decision can be understood constitutes an error of law as it is clearly in breach of s 43(2B) of the AAT Act.
Conclusion
Having found therefore that all the grounds of appeal are sustained including the errors set out in grounds 4(c) and (d) I propose making the following orders:
(1)The appeal be allowed.
(2)The decision of the Administrative Appeals Tribunal dated
27 July 2000 be set aside.(3)The decision of the Commission dated 29 November 1995 be affirmed save that in lieu of the reference to “asthma” there be inserted reference to “chronic airflow limitation” and/or “chronic bronchitis”.
(4)The respondent pay the applicant’s costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.
I should add that I am not satisfied having regard to the analysis of the relevant SoPs that there would be any different outcome if the matter had been remitted to the AAT with a direction that it apply the most recent SoP. In the circumstances it would clearly be futile to remit the matter to the AAT and accordingly the orders proposed shall be made subject to any further submissions to the precise form of those orders.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 20 December 2001
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