Repatriation Commission v Money

Case [2008] FCA 118

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Money [2008] FCA 118

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – whether disease was defence-caused – meaning of “inability to obtain appropriate clinical management” – no error in Tribunal’s finding that there was an inability to obtain appropriate clinical management – no error in Tribunal’s finding that respondent’s idiopathic fibrosing alveolitis was defence-caused – application dismissed

Veterans’ Entitlements Act 1986 (Cth) ss 31, 70, 196B, 120, 120B
Administrative Appeals Tribunal Act 1975 (Cth) ss 37, 44

Repatriation Commission v Smith (1987) 15 FCR 327 cited
Somerset v Repatriation Commission [2005] FCA 1399 distinguished
Repatriation Commission v Wedekind [2000] FCA 649 considered
Brew v Repatriation Commission (1999) 94 FCR 80 cited
Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 considered
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 considered
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited

Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626 considered
Johnston v Commonwealth (1982) 150 CLR 331 cited
Repatriation Commission v Bendy (1989) 10 AAR 323 cited

REPATRIATION COMMISSION v DENNIS JOHN MONEY
WAD 371 OF 2006

STONE J
4 MARCH 2008
SYDNEY (HEARD IN PERTH)


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 371 OF 2006
ON APPEAL FROM THE VETERANS’ APPEAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY A MEMBER

BETWEEN:

REPATRIATION COMMISSION
Applicant

AND:

DENNIS JOHN MONEY
Respondent

JUDGE:

STONE J

DATE OF ORDER:

4 MARCH 2008

WHERE MADE:

SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT:

1.The application is dismissed with costs.

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

WAD 371 OF 2006
ON APPEAL FROM THE VETERANS' APPEAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY A MEMBER

BETWEEN:

REPATRIATION COMMISSION
Applicant

AND:

DENNIS JOHN MONEY
Respondent

JUDGE:

STONE J

DATE:

4 MARCH 2008

PLACE:

SYDNEY (HEARD IN PERTH)

REASONS FOR JUDGMENT

  1. The issue in the present proceeding is whether the respondent, Mr Money is entitled to a pension under the Veterans’ Entitlements Act 1986 (Cth). Mr Money has a severe respiratory disease known as idiopathic fibrosing alveolitis (‘IFA’). The nub of the issue is whether that disease is ‘defence-caused’ as that term is defined in the Act. Delegates of the Repatriation Commission and the Veterans’ Review Board have answered that question in the negative. The latter decision, that of the Veterans’ Review Board, was reversed by the Administrative Appeals Tribunal which decided that Mr Money’s IFA was defence-caused. Pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), the Commission appeals from that decision.

  2. Before addressing the Commission’s grounds of appeal, it will be convenient to outline the relevant provisions of the Veterans’ Entitlements Act, which provide some explanation of the disease from which Mr Money suffers, and then set out in more detail…

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AGLC
Repatriation Commission v Money [2008] FCA 118
Case
[2008] FCA 118
Decision Date

CaseChat Overview and Summary

The case of Repatriation Commission v Money involved the Repatriation Commission appealing against a decision of the Administrative Appeals Tribunal (AAT) which held that Mr Money’s Idiopathic Fibrosing Alveolitis (IFA) was defence-caused. IFA is a rare respiratory disease of unknown cause that progressively reduces respiratory capacity to the point of complete respiratory failure. Mr Money sought a pension under the Veterans’ Entitlements Act, claiming that his IFA was caused by his service in the Royal Australian Navy. The AAT found that Mr Money’s IFA was aggravated by his inability to obtain appropriate clinical management of his condition, and that inability arose from a systemic failure of the Navy’s medical structures.

The central legal issues before the court were whether the Tribunal erred in its interpretation of certain provisions of the Veterans’ Entitlements Act, specifically clause 5(a) of Statement of Principles No 16 of 1998 concerning Idiopathic Fibrosing Alveolitis, and whether there was sufficient material before the Tribunal to support its findings on the balance of probabilities. The Commission argued that the Tribunal failed to apply the correct standard of proof and misconstrued the statutory provisions in question. The court had to determine whether the Tribunal's findings were legally sound and supported by the evidence presented.

The court found that the Tribunal did not err in its interpretation of the statutory provisions. The court held that the Tribunal’s findings that Mr Money’s IFA was aggravated by his inability to obtain appropriate clinical management were supported by the evidence. The court also held that the Tribunal correctly applied the standard of proof required by the Act, which is satisfaction on the balance of probabilities. The court further found that the Tribunal was not required to make certain findings that the Commission argued should have been made, as those findings were not necessary to support the Tribunal's decision.

The court concluded that the Tribunal's decision was legally sound and supported by the evidence. The court dismissed the Commission’s application with costs. The court held that the Tribunal's findings that Mr Money’s IFA was defence-caused were open to it on the evidence and that there was no error in law that would entitle the Commission to have the decision set aside. The court therefore dismissed the appeal and affirmed the Tribunal’s decision.

Orders

Orders of the court

1. The application is dismissed with costs.

Background

Background to the litigation

Before addressing the Commission’s grounds of appeal, it will be convenient to outline the relevant provisions of the Veterans’ Entitlements Act, which provide some explanation of the disease from which Mr Money suffers, and then set out in more detail the history of this matter. As the majority of the Tribunal’s findings of fact are not challenged, except where otherwise indicated, I shall rely on its account of the details of Mr Money’s condition, as well as upon the documents lodged with the Tribunal under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).BACKGROUND INFORMATIONIdiopathic Fibrosing Alveolitis IFA is a rare respiratory disease of unknown cause in which fibrous tissue develops within the lungs. This stiffens the lungs and reduces their capacity to expand, and disrupts the function of the alveoli. The condition progressively reduces respiratory capacity to the point of complete respiratory failure. Although it is common for sufferers to be asymptomatic during the earlier stages of IFA, in later stages coughing, wheezing, shortness of breath and the production of sputum are common. The disease may also lead to clubbing of the fingers or toes although clubbing may also be associated with other lung diseases. Among lung conditions, IFA is the most common cause of such clubbing however not every sufferer will develop clubbing. IFA is difficult to diagnose but its presence may be suggested by chest x-rays. By reducing the elasticity of the lungs, IFA may restrict inspiration and lead to x-rays showing an enlarged heart. This is because during inspiration, the pull of the diaphragm elongates the heart, making it appear narrow. Accordingly, where inspiration is poor, this pull on the heart is reduced and it may appear enlarged. Poor inspiration can, however, be caused by factors other than IFA, including being overweight. Other indications of IFA may be seen in lung function tests or CT scans however the diagnosis of IFA can currently be confirmed only by post-mortem examination of lung tissue or by open biopsy of the lung of a living patient. Given the difficulty of diagnosis it is self-evident that the condition is more likely to be considered by a specialist respiratory physician than a junior doctor. The Statutory Scheme Section 70(1) of the Veterans’ Entitlements Act provides that the Commonwealth is liable to pay a pension by way of compensation to a member of the Defence Forces who is incapacitated by a “defence-caused disease”. Where a disease is contracted before the commencement of defence service, or is contracted during defence service but does not arise out of that service, it will be “defence-caused” if, in the opinion of the Repatriation Commission, the defence service rendered after the disease was contracted, aggravated the disease, or contributed to it in a material degree; s 70(5)(d). In forming this opinion, the Repatriation Commission is required to decide the matter to its reasonable satisfaction; s 120(4). This requires the Commission to ask itself whether it was satisfied on the balance of probabilities; Repatriation Commission v Smith (1987) 15 FCR 327. Section 120 does not impose an onus of proof on the applicant for a pension or on the Commission; s 120(6). Nevertheless, the Commission can only reach the requisite state of satisfaction if two conditions are fulfilled; s 120B(3). First, the material before the Commission must raise a connection between the disease and some particular service rendered by the person. Secondly, where there is a Statement of Principles in force concerning that disease, that Statement of Principles must uphold the contention that the disease is, on the balance of probabilities, connected with the service.

Evidence

Evidence Before The Court

The notice of appeal filed by the applicant sets out the following nine questions:1.1Did the Tribunal err in its construction of the expression “inability to obtain appropriate clinical management” in clause 5(a) of Statement of Principles No 16 of 1998 concerning Idiopathic Fibrosing Alveolitis (the SoP)?1.2Was there any material before the Tribunal capable of supporting a finding, on the standard prescribed by s 120(4) of the VE Act, factor (a) in clause 5 of the SoP existed?1.3Was the Tribunal required, and did the Tribunal fail, to find whether factor (a) in clause 5 of the SoP was related to the Respondent’s defence service in one of the ways listed in s 196B(14) of the VE Act?1.4Was there any material before the Tribunal capable of supporting a finding, on the standard prescribed by s 120(4) of the VE Act, that factor (a) in clause 5 of the SoP was related to the Respondent’s defence service in one of the ways listed in s 196B(14) of the VE Act?1.5Was there any material before the Tribunal capable of supporting a finding, on the standard prescribed by s 120(4) of the VE Act, that the Respondent’s putative inability to obtain appropriate clinical management for idiopathic fibrosing alveolitis had contributed in a material degree to, or aggravated, his idiopathic fibrosing alveolitis?1.6In finding, at [73] of its Reasons for Decision, that the Respondent’s submarine service “could” have aggravated his idiopathic fibrosing alveolitis, did the Tribunal fail to make a finding on the standard prescribed by s 120(4) of the VE Act?1.7Was there any material before the Tribunal capable of supporting the Tribunal’s finding, at [77] of its Reasons for Decision, that the Respondent’s smoking habit was causally related to his relevant service?1.8Was the material before the Tribunal capable of supporting an opinion formed reasonably on the material before the Tribunal that the Respondent’s idiopathic fibrosing alveolitis was contributed to in a material degree by, or was aggravated by, his defence service?1.9In deciding that the Respondent’s idiopathic fibrosing alveolitis is defence-caused, did the Tribunal fail to apply the standard of proof prescribed by s 120(4) of the VE Act or ask itself the wrong question?The grounds of appeal reflect these questions of law. In its written submissions in reply and at the hearing of this matter, counsel for the applicant clarified that, in relation to questions 1.2, 1.4, 1.5 and 1.7, the applicant is claiming that there is no evidence capable of supporting the relevant findings of the Tribunal rather than seeking to take issue with the weight that the Tribunal attributed to evidence. The Orders Sought The Commission seeks to have the Tribunal’s decision set aside and for the Court to substitute its decision that Mr Money’s IFA was not defence-caused. Alternatively, the Commission seeks to have the matter remitted to a differently constituted Tribunal for further hearing and determination according to law. First Ground of Appeal

Decision

Reasons for decision

STONE J
The phrasing of which the applicant complains is unfortunate, however, the rather clumsy use of a double negative is not to be confused with the application of the reverse onus test. This ground must also be rejected.CONCLUSION AND ORDERS The essential findings of the Tribunal are clear: Mr Money’s IFA was aggravated by his inability to obtain appropriate clinical management of his condition, and that inability arose from a systemic failure of the Navy’s medical structures. Those findings were open to the Tribunal on the evidence. The applicant has not identified any error that would entitle this Court to set aside the Tribunal’s decision. For that reason the application must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Established by: STONE J

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