Repatriation Commission v Walters
[2001] FCA 228
•13 MARCH 2001
FEDERAL COURT OF AUSTRALIA
Repatriation Commission v Walters [2001] FCA 228
ADMINISTRATIVE LAW - Application for review - where parties agreed to a particular staement of principles being applied - whether the decision could be reviewed if that was the wrong statement of principles to apply.
Repatriation Commission v Keeley (2000) 98 FCR 108 Foll
Hospital Benefit Fund (WA) Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 Appl
Repatriation Commission v Deledio (1998) 83 FCR 82 Cited
Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1997) 97 FCR 513 ApplREPATRIATION COMMISSION v JEAN ALMA WALTERS
QG 129 OF 1998COOPER J
BRISBANE
13 MARCH 2001
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG129 OF 1998
BETWEEN:
REPATRIATION COMMISSION
APPLICANTAND:
JEAN ALMA WALTERS
RESPONDENTJUDGE:
COOPER J
DATE OF ORDER:
13 MARCH 2001
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The decision of the Administrative Appeals Tribunal made on 18 September 1998 setting aside the decision under review and determining in substitution therefor that Jean Alma Walters was entitled to a war widow’s pension with effect from 8 May 1995, be set aside.
2.The matter be remitted to the Administrative Appeals Tribunal for re-consideration according to law and these reasons.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG129 OF 1998
BETWEEN:
REPATRIATION COMMISSION
APPLICANTAND:
JEAN ALMA WALTERS
RESPONDENT
JUDGE:
COOPER J
DATE:
13 MARCH 2001
PLACE:
BRISBANE
REASONS FOR JUDGMENT
BACKGROUND
William Walters served in the Royal Australian Air Force from 5 April 1944 until 3 March 1948. Part of his service included service in Japan from 26 March 1947 until 5 February 1948. On 21 January 1980 he died. The cause of his death was multiple myeloma.
On 8 August 1995 his widow, Jean Alma Walters, claimed a war widow’s pension under the Veteran’s Entitlements Act 1986 (Cth) (“the Act”). She claimed in her application that her husband’s death was war-caused within s 8 of the Act. The claim was rejected and the rejection affirmed by the Veterans’ Review Board. Mrs Walters sought review in the Administrative Appeals Tribunal (“the AAT”) of the decision to reject her claim for a war widow’s pension. On 18 September 1998, the AAT set aside the decision under review and in substitution therefor, determined that Mrs Walters was entitled to a war widow’s pension with effect from 8 May 1995.
The Repatriation Commission appealed to this Court in its original jurisdiction for orders setting aside the decision of the AAT.
After the conclusion of argument on the appeal, the matter was stood over to await the decision of the High Court of Australia on a special leave application in Repatriation Commission v Keeley. Special leave was refused by the High Court in that matter on 28 November 2000. Consequent upon such refusal, further submissions were lodged by the parties concluding on 9 February 2001.
THE PROCEEDINGS IN THE AAT
The proceedings before the AAT were conducted on an agreed statement of facts. They were :
“1.Both parties agree that the decision under review is that by a Delegate of the Repatriation Commission dated 29 September 1995, which determined that the death of William Thomas Walters was not war-caused, which was affirmed by the Veteran’s Review Board on 5 August 1997.
2.Both parties agree that the death or [sic] William Thomas Walters was caused by multiple myeloma (directly leading to death) and renal failure, general cachexia (contributing to death, but not related to the disease or condition causing it).
3.Both parties agree that the Repatriation Medical Authority Statement of Principles for multiple myeloma (Instrument no. 134 of 1996) applies in this matter.
4.Both parties agree that factors (a), (c) and (d) in the Statement of Principles for multiple myeloma are not satisfied and therefore are not at issue.
5.Both parties agree that the first part of factor (b) in the Statement of Principles for multiple myeloma relating to being occupationally required to work as a painter for an average of three or more days per week over any two year period before the clinical onset of multiple myeloma is satisfied during the Veteran’s service in the Royal Australian Air Force.
6.Both parties agree that the Veteran’s post service occupation of cabinet maker/carpenter would have also occupationally included work as a painter for a period or periods of time totalling at least 312 days before the clinical onset of multiple myeloma.
7.Both parties agree that the late William Walters served in the Royal Australia Air Force from 5 April 1944 until 3 March 1958 and part of this service included service in Japan from 26 March 1947 until 5 February 1948. Because of this service in Japan all of the late William Walters’ service constitutes operational service as defined in Section 6 of the Act.
8.Both parties agree that the date of effect, should the Applicant succeed, is 8 May 1995.
9.Both parties agree that the provisions of subsection 120(1) and subsection 120(3) of the Act apply in relation to determination of this claim for pension which relates to the operational service rendered by the Veteran.”
Mrs Walters claimed an entitlement to a war widow’s pension pursuant to s 8(1)(d) of the Act. That section provided :
“Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if :
...(d)in the opinion of the Commission the death of the veteran was due to an accident that would not have occurred or to a disease that would not have been contracted but for his or her having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service.”
The AAT (Deputy President Breen) found that the relevant duties in the Air Force included painting and that he “thus acquired, or it is reasonable to deduce, significantly further developed and enhanced skills as a painter”. The AAT also found that upon his discharge, he participated in the Commonwealth’s Reconstruction Training Scheme and obtained a Certificate of Qualification in carpentry dated 10 February 1952.
The AAT made the following findings :
“16. Upon attaining that Certificate and the qualifications upon which it is founded, Mr Walters followed an occupation of cabinetmaker/painter, as I understand it, cabinetmaking featuring use of glues and paints, using the skills that he thus obtained up until ceasing work. He ceased work (his widow informed me in the course of proceedings this morning) because of deteriorating health. His health continued to deteriorate until he passed away.
17. I find a logical chain of sequence linking the circumstances of the veteran’s war service with his post-war training under the auspices of the Department of Labour and National Service and then linking the qualifications obtained under the re-training scheme with his subsequent occupation, and further, and finally, a link between that occupation and the late Mr Walters subsequently developing the disease which led to his death.
18. I accept Mr Wall’s submission - see paragraph 8 of these Reasons - that the matter is distinguishable from Holthouse’s case. I find that the death of the veteran was a result of a disease contracted because of changes in the veteran’s environment, consequent upon - that is, following logically upon - his having rendered eligible war service. I find that Mrs Walters is entitled to the War Widow’s Pension, which by these proceedings she seeks. As per paragraph 8 of Exhibit 2, I set the date of effect as 8 May 1995.”
THE APPEAL TO THIS COURT
The grounds of appeal relied upon by the applicant were :
“(a)The Tribunal erred by construing paragraph 8(1)(d) of the Act as contemplating a disease contracted because of :
(i)changes in a veteran’s environment in his civilian occupation in the period after the completion of the veteran’s eligible war service; and
(ii)changes in a veteran’s environment ‘following logically upon’ the veteran having rendered eligible war service.
(b)The Tribunal erred by failing to construe paragraph 8(1)(d) of the Act as :
(i)confined to changes in a veteran’s environment that occurred at the time of the rendering of eligible war service by the veteran; and
(ii)maintaining a requirement that eligible war service be a contributing cause of the disease causing death.
(c)The material before the Tribunal was incapable of raising as a reasonable hypothesis the proposition, for the purposes of either paragraph 8(1)(d) or paragraph 196B(14)(f) of the Act, that the veteran would not have contracted multiple myeloma but for changes in the veteran’s environment consequent upon his having rendered eligible war service.
(d)The material before the Tribunal was incapable of raising as a reasonable hypothesis the propositions, for the purposes of clauses 4 and 5(b) of the SoP, that :
(i)the veteran was occupationally required to work as a painter in the period following his discharge from the RAAF; and
(ii)any such occupation requirement was related to the eligible war service rendered by the veteran.”
As appears from the agreed statement of facts, the AAT determined the matter before it on the basis that the Repatriation Medial Authority Statement of Principles (“the SoP”) for multiple myeloma was Instrument No 134 of 1996. At the time Mrs Walters lodged her claim for a pension on 8 August 1995 and at the time when the applicant refused her claim on 29 September 1995, the SoP in force in respect of multiple myeloma was Instrument No 1 of 1995.
The effect of the decision of a Full Court of this Court in Repatriation Commission v Keeley (2000) 98 FCR 108, is that the review of the decision refusing the pension fell to be determined in accordance with SoP Instrument No 1 of 1995, and not the later SoP Instrument No 134 of 1996 which revoked and replaced the earlier 1995 SoP.
The applicant submits that the proper cause is to set the decision appealed from aside, and to remit the matter to the AAT to be heard and determined in accordance with SoP Instrument No 1 of 1995. The circumstance that the proceeding before the AAT was conducted by agreement of the parties on an erroneous basis does not preclude that course: Hospital Benefit Fund (WA) Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 231 - 232.
The respondent submits that the matter should not be remitted, as it would be futile to do so because the AAT would be obliged to conclude taking the steps identified in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 - 98, that the hypothesis that the veteran was occupationally exposed to paints and/or lacquers during his service, that this exposure, which occurred before he developed multiple myeloma, led to him developing that condition and, that condition caused his death, was reasonable. The respondent further submits that the AAT could not have concluded otherwise than that the raised facts pointed to this hypothesis for the reason that on the material before the AAT the veteran was mustered as a flight rigger and that “riggers were involved with paints, lacquers, thinners...” and that the agreed facts satisfied factor 1(b) of the SoP Instrument 1 of 1995. The respondent submits that the further steps required to be taken as identified in Deledio would, on the findings of fact made by the AAT, have inexorably led to the conclusion that Mrs Walters was entitled to a war widow’s pension pursuant to s 8(1)(d) of the Act.
The short answer to the respondent’s submissions is that the AAT has not addressed the factual issues which it is required to do by reference to the SoP Instrument No 1 of 1995.
The AAT, by agreement of the parties, only considered the requirements of SoP Instrument No 134 of 1996. The difference between the SoP’s is significant.
SoP Instrument No 1 relevantly states:
“... the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting multiple myeloma or death from multiple myeloma with the circumstances of that service, are :
...(b)being occupationally exposed to paints and/or lacquers before the clinical onset of multiple myeloma; or ...”
(Emphasis added)
Whereas SoP Instrument No 134 of 1996 relevantly states :
“The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting multiple myeloma or death from multiple myeloma with the circumstances of a person’s relevant service are :
..(b)being occupationally required to work as a painter for an average of three or more days per week over any two year period, (or working as a painter for a period or periods of time totalling at least 312 days) before the clinical onset of multiple myeloma, and where that occupational exposure has ceased, the clinical onset of multiple myeloma has occurred within 20 years of cessation; or ...”
(Emphasis added)
The applicant’s main submissions on the hearing of the matter before the Full Court handed down Keeley, can be summarised as follows :
(a) whether Mr Walters was occupationally required to work as a painter;
(b) whether that occupational requirement related to his operation service; and
(c) whether the onset of multiple myeloma falls outside the claimable period.
These factual issues are no longer relevant. The factual issues must be re-determined by the AAT, taking into account SoP Instrument No 1 of 1995. It is not a function of this Court to anticipate how the AAT could, or should, answer each of those factual questions, or, itself to make factual findings to overcome the absence of necessary findings of fact: Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1997) 97 FCR 513 at 519.The determination of the AAT by reference to SoP Instrument No 134 of 1996 was an error of law and that could have affected the outcome of the case. That is a sufficient reason to order the decision of the AAT be set aside: 97 FCR 513 at 519.
The matter will be remitted for re-hearing by the AAT according to law and these reasons.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper. Associate:
Dated: 13 March 2001
Counsel for the Applicant: P Hanks Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: D O’Gorman Solicitor for the Respondent: Gilshenan & Luton Date of Hearing: 17 August 1999, 9 February 2001 Date of Judgment: 13 March 2001
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