Riley v Repatriation Commission

Case [2008] FCA 531

FEDERAL COURT OF AUSTRALIA

Riley v Repatriation Commission [2008] FCA 531

DEFENCE AND WAR – veterans’ affairs – statement of principles – appeal from the Administrative Appeals Tribunal affirming decision of a delegate of the Repatriation Commission that the applicant's chondromalacia patellae of both knees had not been related to his service – material must raise reasonable hypothesis connecting veteran’s injury or disease with circumstances of service – findings of fact against claim must be made beyond reasonable doubt – Tribunal forming an opinion on the material before it – no impermissible resolution of possible conflicts in the evidence or impermissible findings of fact – Veterans’ Entitlements Act 1986 (Cth) ss 9, 13, 120, 120A

Veterans’ Entitlements Act 1986 (Cth) ss 9, 13, 120, 120A

Byrnes v Repatriation Commission (1993) 177 CLR 564 applied
Hardman v Repatriation Commission [2005] FCAFC 83 cited
Lees v Repatriation Commission (2002) 125 FCR 331 cited
Meehan v Repatriation Commission (2002) 35 AAR 353 cited
Re Robertson v Repatriation Commission (1998) 50 ALD 668 cited
Repatriation Commission v Cornelius [2002] FCA 750 cited
Repatriation Commission v Deledio (1998) 83 FCR 82 applied
Repatriation Commission v Hill (2002) 69 ALD 581 applied

DANIEL RILEY v REPATRIATION COMMISSION

NSD 1897 OF 2007

EDMONDS J
21 APRIL 2008
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1897 OF 2007
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

DANIEL RILEY
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

EDMONDS J

DATE OF ORDER:

21 APRIL 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1897 OF 2007
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL 

BETWEEN:

DANIEL RILEY
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

EDMONDS J

DATE:

21 APRIL 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

  1. This is an appeal from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) affirming a decision of a delegate of the respondent (‘the Commission’) that the applicant’s chondromalacia patellae (‘CP’) of both knees was not related to his service in the Australian Army.  The Commission’s decision was subsequently affirmed by the Veterans’ Review Board (‘the VRB’).

  2. At the commencement of the hearing of the appeal, the Court gave leave to the applicant to file and serve a Supplementary Notice of Appeal (a copy had previously been provided to the Commission) and to rely on the grounds set out therein.  These grounds were:

    ‘(i)      The Tribunal erred in law by:

    (a)proceeding on the basis that an hypothesis could only be upheld by factor 5(a) of the SoP [Statement of Principles] where there had been a contemporaneous diagnosis of chondromalacia patellae within six months of direct trauma to the affected knee; and

    (b)failing to consider whether the material before the Tribunal pointed to the existence of features, signs and symptoms of…

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Riley v Repatriation Commission [2008] FCA 531
Case
[2008] FCA 531
Decision Date

CaseChat Overview and Summary

The case of Riley v Repatriation Commission concerns the applicant's appeal against the Tribunal's decision to affirm the rejection of his claim for a pension on the basis of his condition of chondromalacia patellae (CP). The applicant, a former Australian Army veteran who served in Vietnam, argued that the Tribunal erred in several respects, including by treating the clinical onset of his CP as requiring a contemporaneous diagnosis, making impermissible fact-finding at the reasonable hypothesis stage, and rejecting an alternative hypothesis without proper consideration. The court had to determine whether the Tribunal appropriately applied the legislative provisions and case law in assessing the applicant's claims. The central legal issues were whether the Tribunal correctly interpreted and applied the statutory requirements for establishing a war-caused injury, and whether its findings were supported by the evidence.

The Federal Court considered the statutory framework provided by the Veterans’ Entitlements Act 1986 (Cth), which outlines the conditions under which a veteran's injury or disease is considered war-caused. The court noted the High Court's explanation in Byrnes v Repatriation Commission that the process involves determining whether the material raises a reasonable hypothesis connecting the veteran's injury or disease with their service, and then whether the decision-maker is satisfied beyond reasonable doubt that the facts required to connect the injury or disease with the service were not present or were displaced by other facts. The Tribunal's task was to form an opinion on these matters, not to find facts. The court examined the Tribunal's reasoning and found that while the Tribunal did not require a contemporaneous diagnosis of CP, it was correct in noting that no such diagnosis was made until 2003. The court also determined that the Tribunal did not engage in impermissible fact-finding but was instead forming an opinion based on the evidence before it.

The court found that the Tribunal did not err in its assessment of the applicant's claims. It concluded that the Tribunal correctly applied the relevant legal principles and that the applicant's arguments did not establish any errors of law on the part of the Tribunal. Therefore, the appeal was dismissed, and the applicant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The applicant pay the respondent’s costs of the appeal.

Background

Background to the litigation

The appeal focuses on the alleged failure of the Tribunal to approach the question whether the applicant’s CP was war-caused in the manner prescribed by subss 120(1) and (3) and 120A(3) of the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’), as explained in the authorities, including Repatriation Commission v Deledio (1998) 83 FCR 82; Repatriation Commission v Cornelius [2002] FCA 750; Meehan v Repatriation Commission (2002) 35 AAR 353; Lees v Repatriation Commission (2002) 125 FCR 331; and Hardman v Repatriation Commission [2005] FCAFC 83. In particular, the applicant contends that the Tribunal erred in law by:(1)Treating clinical onset of CP as requiring the contemporaneous diagnosis of CP – ground 4(i);(2)impermissible fact-finding at the reasonable hypothesis stage that one of the elements required to raise a reasonable hypothesis connecting CP with the applicant’s war service (clinical onset of CP within six months of direct trauma to the patella) did not occur within the prescribed time – ground 4(ii); and(3)rejecting the alternative hypothesis (of inability to obtain appropriate clinical management in Vietnam for pre-existing CP) on the basis of impermissible fact-finding that the applicant’s CP did not have its clinical onset until after his operational service – grounds 4(iii) and 4(iv).BACKGROUND The applicant served in the Australian Army from 10 February 1965 until 9 February 1968. He served in Vietnam from 10 June 1966 until 9 May 1967 and his service there constitutes ‘operational service’ under the Act. On 26 September 2002, the applicant lodged a claim for the following conditions:(1)Post Traumatic Stress Disorder;(2)Bilateral Sensorineural Hearing Loss;(3)Bilateral Tinnitus;(4)CP of both knees; and(5)Solar Keratosis. On 20 May 2003, the delegate of the Commission accepted all of the conditions save for the CP of both knees (‘the decision’). On 20 August 2003, the Departmental Review Officer affirmed the decision. On 17 March 2006, the VRB affirmed the decision. On 24 August 2007, the Tribunal determined an appeal from the VRB and affirmed the decision.LEGISLATIVE FRAMEWORK Subsection 13(1) of the Act renders the Commonwealth liable to pay a pension to a veteran (the applicant is a veteran) who has become incapacitated from a war-caused injury or disease. The circumstances in which a veteran’s injury or diseases is taken to be war-caused are set out in subs 9(1) of the Act. They include the circumstances where the injury or disease:‘(1)resulted from an occurrence that happened while the veteran was rendering operational service: para (a); or(2)arose out of or was attributable to any eligible war service rendered by the veteran (which includes operational service): para (b).’ Where a claim relates to operational service, as the applicant’s claim did, the standard of proof to be applied to the question whether an injury or disease is war-caused is prescribed by subss 120(1) and (3) of the Act. Those provisions are applied in the manner explained by the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 and may be summarised as follows:(1)The threshold question is posed by subs 120(3) – namely, whether the whole of the material before the decision-maker raises a reasonable hypothesis connecting the veteran’s injury or disease with the circumstances of his service. The question whether the material raises a reasonable hypothesis of that kind does not involve the finding of any facts relating to the veteran’s service or relating to any connection between that service and the relevant injury or disease.(2)If the material does raise such a reasonable hypothesis, the decision-maker proceeds to the question posed by subs 120(1) – namely, is the decision-maker satisfied beyond reasonable doubt that the facts required to connect the veteran’s injury or disease with his service were not present or were displaced by other facts. It is only at this stage that the Tribunal finds any facts.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

EDMONDS J
At [52] the Tribunal concluded:‘I have already found that the clinical onset of Mr Riley’s chondromalacia patellae was not until some time after his operational service, and not before his discharge from the Army. That being the case, Mr Riley cannot succeed on factor 5(h).’THE APPLICANT’S GROUNDS OF APPEAL AND CONCLUSIONS THEREON As noted in [2] above, the applicant’s appeal is predicated on four grounds: two relating to the Tribunal’s opinion that the hypothesis raised in respect of factor 5(a) of the SoP is not a reasonable one; and two relating to the Tribunal’s opinion that the hypothesis raised in respect of factor 5(h) of the SoP is also not a reasonable one. The applicant’s written and oral submissions were confined to these grounds.The First Ground: Paragraph 4(i) of the Supplementary Notice of Appeal The first ground alleges error in that the Tribunal concluded that the hypothesis could only be reasonable by reference to factor 5(a) (and factors 5(b) and 5(e)) if there had been ‘a contemporaneous diagnosis of [CP] within six months of direct trauma to the affected knee’. In his written submissions, the applicant refers to the last two sentences of [45] (second) of the Tribunal’s reasons (see [34] above), in support of this ground, but I do not read these sentences, particularly the last, as the Tribunal saying that a medical diagnosis of CP must be made within six months of direct trauma to the affected knee for factor 5(a) to be met. Rather, the Tribunal is merely recording the fact that no such diagnosis was made until 2003. When the Tribunal’s reasons are read in context, the Tribunal was correct, having regard to all the material before it, to observe that prior to Dr Diebold’s diagnosis in 2003, there was no earlier diagnosis. However, it would be wrong, in my view, to conclude that this meant that the Tribunal required that the diagnosis of clinical onset, as explained in [33] above, be made at any specific time or close to the applicant’s military service. This ground is not made out.The Second Ground: Paragraph 4(ii) of the Supplementary Notice of Appeal The second ground alleges error in that the Tribunal proceeded on the basis that it was entitled, and required, to resolve possible conflicts in the evidence and make a finding as to the time when the applicant experienced clinical onset of his CP. The applicant’s complaint appears to be with the Tribunal’s use of the expression ‘determine’ in [36] of its reasons. He suggests that the expression ‘determine’ means that the Tribunal embarked on impermissible fact-finding. I do not agree. I agree with the Commission’s short answer, that the Tribunal was simply acknowledging that, in terms of the third step in Deledio, it was required to ‘form an opinion’ and that the expression ‘determine’, in the context of the Tribunal’s understanding that its task was not to find facts (at [35]), meant no more than forming an opinion. The Tribunal, at [45] (second) and [46] (second) of its reasons, was doing no more than setting out the process by which it formed the opinion that the hypotheses were not reasonable by reference to factors 5(a), 5(b) and 5(e) of the SoP. It was not, despite the use of the word ‘find’ in [46] (second), involved in an exercise in fact-finding, specifically, as to the time when the applicant experienced clinical onset of his CP, outside the process of forming that opinion.

Ratio Decidendi

Legal Principle Established

Established by: EDMONDS J

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