Roberts v Repatriation Commission
[2004] FMCA 926
•2 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROBERTS v REPATRIATION COMMISSION | [2004] FMCA 926 |
| ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – whether error of law – Veterans entitlements – whether emphysema war caused. PRACTICE AND PROCEDURE – Extension of time – relevant principles – explanation for delay not a precondition. |
Administrative Appeals Tribunal Act 1975, s.44(1), 44(2A)(a)
Veterans Entitlements Act 1986
Administrative Decisions (Judicial Review) Act 1977
Human Rights and Equal Opportunity Act 1986, s.46PA(2)
Phillips v Australian Girls Choir & Anor [2001] FMCA 109
Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344
Pham v Commonwealth of Australia (1992) 28 ALD 211
Re Hartley; John Younger v Repatriation Commission (1992) 28 ALD 211
Repatriation Commission v Deledio (1998) 83 FCR 82
Commonwealth Bank Corporation v Percival (1988) 20 FCR 176
Repatriation Commission v Hill (2002) 69 ALD 581
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Kattenderg v Repatriation Commission (2002) FCA 412
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 295
| Applicant: | BRYAN JAMES ROBERTS |
| Respondent: | REPATRIATION COMMISSION |
| File No: | MZ 1489 of 2003 |
| Delivered on: | 2 December 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 12 May 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr C Thomson |
| Solicitors for the Applicant: | Peter J Leifman |
| Counsel for the Respondent: | Ms J Macdonnell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application for extension of time be refused.
The Applicant shall pay the Respondent’s costs to be taxed in default of agreement in accordance with Schedule 1 of the Federal Magistrates Court Rules pursuant to Order 62 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1489 of 2003
| BRYAN JAMES ROBERTS |
Applicant
and
| REPATRIATION COMMISSION |
Respondent
REASONS FOR JUDGMENT
In this matter Mr Roberts (the applicant) applied pursuant to s.44(2A)(a) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) for an extension of time to appeal under s.44(1) of the AAT Act from a decision of the Administrative Appeals Tribunal (the AAT) delivered on 11 April 2003.
In its decision the AAT had affirmed that part of a decision of the Veterans Review Board (the board) that the applicant's condition of emphysema was not war-caused for the purposes of the Veterans Entitlements Act 1986 (the VE Act) and set aside that part of the board's decision which had found that the applicant's allergic rhinitis was not war-caused.
The applicant now seeks to appeal from that part of the AAT's decision which held his condition of emphysema was not war-caused.
It is noted that when the matter was fixed for hearing I decided that the court would determine both the extension of time application together with the substantive appeal. The applicant has claimed the substantial ground of appeal is that the AAT erred in law when applying the test to determine whether within the meaning of the Statement of Principles No.73 of 1997 (Appeal Book xviii) factor 5(b) the applicant's emphysema was related to the circumstances of his relevant service which is reproduced as follows:-
“5(b)smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; or”
Extension of time
Section 44(2A)(a) of the AAT Act provides as follows:
“An appeal by a person under subsection (1) or (2) shall be instituted:
(a) not later than the 28th day after the day on which a document setting out the terms of a decision of the tribunal is furnished to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that date) allows; and
(b) in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976.”
The discretion provided in s.44(2A)(a) of the AAT Act is similar to the discretion provided in s.11 of the Administrative Decisions (Judicial Review) Act 1977 and s.46PA(2) of the Human Rights and Equal Opportunity Commission Act 1986. In the matter of Phillips v Australian Girls' Choir & Anor [2004] FMCA 109 I had endeavoured to summarise the principles which apply and modified to some extent those matters set out by Wilcox J in Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 as follows:
“In the light of A’Hearn’s case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it’s fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn’s case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court’s discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:
1.There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The “prescribed period” of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550).
2.It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A’Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302).
3.Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287)
4.Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287)
5.The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416)
6.The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417)
7.Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).”
Those principles have been applied by the Federal Court by Gray J in the matter of Pham v Commonwealth of Australia (2002) FCA 669 (9 May 2002).
Accordingly, it is my view that in the present case I am not inclined to follow the decision of Olney J in Re Hartley; John Younger v Repatriation Commission (1992) 28 ALD 211 at paragraph 6 relied upon by the respondent to the extent that reference was made there to the notion that:
“It is a precondition to the exercise of discretion in his favour that the applicant for extension show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time.”
Applying the principles to which I have referred, it is relevant to note that in the present case the applicant is just over six months out of time from the 28-day time period for lodging an appeal. I accept that this is a quite substantial period of time. The applicant relied upon the respondent's view that it would be unlikely for it to argue that it had suffered any detriment as a result of any delay in this case; that is, that it has not suffered any prejudice.
I accept that there may not be any specific prejudice to the respondent in this case, but that does not mean in all the circumstances that the prescribed period is to be ignored, and nor is it the case that the mere absence of prejudice would be enough to grant an extension. It is also relevant to take into account the consideration of fairness as between the applicant and other persons otherwise in a like position who may have complied with the time limit.
Whilst I accept that an explanation for the delay is not a precondition to the consideration of an extension of time, it is usual for some explanation to be given which will of course become a relevant matter for the court in the exercise of its discretion. An affidavit of the applicant's then solicitor, Mr Peter Liefman sworn 28 November 2003 (appeal book 187) refers to the decision under appeal being delivered on 11 April 2003 and the applicant being provided with some initial advice and specifically being advised that whilst there was some merit for the appeal that, unlike the administrative process to date, such a step would include being exposed to the possibility of costs being awarded against him.
It is claimed the applicant was then moving from Victoria to New South Wales and his decision was delayed "by both his uncertainty about the cost issue and as to whether the appeal would be instituted in Victoria or New South Wales". It is claimed further discussions took place, though I note no date or specific details are provided about those discussions concerning the possibility of legal aid. Eventually instructions were given to make an application for legal aid, but again no date or specific details were provided. Although ultimately instructions were provided to proceed with the appeal, again no date is provided as to when those instructions were received. It is clear that it was not until a letter dated 9 September 2003 that the then solicitors for the applicant sought the view of the respondent as to whether it would consent to an application being made out of time (appeal book 195).
It is further argued by the applicant that in any event there is merit in the application and it is claimed as this is beneficial legislation the applicant should be extended some leniency in the circumstances where there is no detriment to be caused to the respondent or any other person. It is noted further that the applicant submits the following:
“If the court is satisfied that the decision was made in error, then to refuse the applicant's request for extension of time in which to file and serve the notice of appeal would mean that the applicant had suffered a significant detriment in failing to establish his entitlement to a pension not on grounds of being not qualified or entitled but because of a technical hitch (emphasis added) in failing to have the notice lodged within time.”
I should indicate at the outset I do not regard the time limits as being merely a "technical hitch" as suggested by the submissions made for and on behalf of the applicant. There is no satisfactory explanation before me which would provide a sufficient basis upon which the delay could be excused. However, having regard to the fact that the explanation for a delay is not a precondition, it is appropriate that
I consider in brief terms the merits of the application in any event before finally deciding whether or not the extension of time should be granted. I should add, however, that the mere existence of an arguable case will not necessarily overcome a considerable delay of the kind in this case in the absence of any explanation. It is simply a factor to take into account.
In relation to the merits, it is appropriate to note the legislative framework in this matter which, in my view, has been accurately and appropriately set out in the submissions of the respondent as follows:
“10.Section 13(1) of the VE Act renders the Commonwealth liable to pay pension to a veteran where that veteran has become incapacitated from a war-caused injury or disease. The circumstances in which an injury or disease is taken to be war-caused are set out in s 9(1) of the VE Act. They include the circumstances where:
10.1the injury or disease contracted by the veteran resulted from an occurrence that happened while the veteran was rendering operational service – s 9(1)(a); and
10.2the injury or disease arose out of or was attributable to eligible war service (which includes operational service[1]) – s 9(1)(b).
[1]VE Act, s 7(1)(a). Mr Roberts rendered operational service during nine discrete periods in the years 1961-1966.
11.The question whether a veteran is suffering from an injury or disease, and the diagnosis of that injury or disease, is to be determined by applying the standard of proof in s 120(4) of the VE Act – that is, to the reasonable satisfaction of the decision-maker.[2] In the present case, the parties agreed that Mr Roberts did suffer from emphysema: AB 176 at [10].
[2]Benjamin v Repatriation Commission (2001) 34 AAR 270 at [54]-[55]. Section 120(4) imports the civil standard of proof: Repatriation Commission v Smith (1987) 15 FCR 327 at 335.
12.Where a claim relates to operational service,[3] the standard of proof to be applied to the question whether an injury or disease is war-caused is prescribed by ss 120(1) and (3) of the VE Act.
[3]As Mr Roberts’s claim did.
12.1Those provisions are applied in the manner explained by the High Court in Byrnes v Repatriation Commission.[4]
[4](1993) 177 CLR 564 at 571.
12.2The threshold question posed by s 120(3) is whether the whole of the material before the decision-maker raises a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the veteran.
12.3As the language of s 120(3) makes clear, and as the High Court emphasised in Repatriation Commission v Owens,[5] the question whether a reasonable hypothesis is raised is to be determined on a consideration of the whole of the material before the decision-maker.
[5](1996) 70 ALJR 904 at 904. See also Repatriation Commission v Bey (1997) 79 FCR 364 at 367.
13.Section 120(3) “is affected by s 120A”; and, according to s 120A(1), s 120A applies to a claim under Part II of the VE Act made on or after 1 June 1994 that relates to operational service rendered by a veteran. (Mr Robert’s claim was such a claim.)
13.1Section 120A(3) of the VE Act provides that a hypothesis connecting a person’s injury or disease with the circumstances of any particular service rendered by the person is reasonable only if there is in force a Statement of Principles (an SoP) that upholds the hypothesis.
13.2That is, the hypothesis raised by the material will only be reasonable if the hypothesis is consistent with, or fits the template of, the SoP.[6]
13.3The method by which ss 120(1), 120(3) and 120A(3) are applied was explained in Repatriation Commission v Deledio.[7] (See paragraph 31 of the AAT’s Reasons, at AB 181-182.)
14.At the time of the Repatriation Commission’s decision, there was an SoP in force for Chronic Bronchitis and Emphysema, No 73 of 1997, reproduced at AB xviii.
14.1One of the factors that must exist as a minimum before a reasonable hypothesis was raised connecting emphysema with a person’s relevant service, was smoking at least ten pack-years of cigarettes or the equivalent in other tobacco products (that is a total 73,000 cigarettes or 14,600 cigars or 73kg of pipe tobacco having regard to the definition of “pack-year” in clause 7 of the SoP) before the clinical onset of chronic emphysema: see factor 5(b) in the SoP.
14.2The parties agreed that Mr Roberts did suffer from emphysema that was related to smoking tobacco and that he had smoked “at least 10 pack years of cigarettes or the equivalent in other tobacco products before the clinical onset of chronic bronchitis and/or emphysema”.
[6]See Repatriation Commission v Deledio (1998) 83 FCR 82 at 96, endorsing the observations of Heerey J at first instance: Deledio v Repatriation Commission (1997) 47 ALD 261 at 275.
[7](1998) 83 FCR 82 at 97-98.
Related to service
15.According to clause 4 of the SoP, at least one of the factors in the SoP must be “related to” the person’s service. The phrase “related to service” is defined in s 196B(14) of the VE Act in substantially similar terms to those of s 9(1) – that is, as requiring a causal relationship.”
By way of background, it is noted that the applicant's operational service in the navy was for the following periods of time:
“16.124 March 1961 to 17 April 1961 (Far Eastern Strategic Reserve);
16.215 April 1963 to 8 May 1963 (Far Eastern Strategic Reserve);
16.310 May 1963 to 25 May 1963 (Far Eastern Strategic Reserve);
16.431 May 1965 to 22 June 1965 (Vietnam);
16.524 February 1965 to 7 April 1965 (Far Eastern Strategic Reserve);
16.621 April 1965 to 7 May 1965 (Far Eastern Strategic Reserve);
16.725 April 1966 to 6 May 1966 (Vietnam);
16.830 May 1966 to 9 June 1966 (Vietnam);
16.924 March 1966 to 25 April 1966 (Far Eastern Strategic Reserve).”
The evidence‑in‑chief regarding the applicant's smoking is summarised in paragraphs 17 to 20 of the AAT's reasons (appeal book 177-180) as follows:-
“17. With respect to the condition of emphysema and its association with smoking tobacco, Mr Roberts said that he first commenced to smoke tobacco when he was stationed at HMAS Albatross. He said he was then smoking between 8 and 10 cigarettes per day and maintained that rate whether he was on duty or on leave. He recalled that he was smoking approximately one pack of 20 cigarettes every second day and purchased cigarettes at that rate. He said that at that time smoking was not a "necessity"..
18. Mr Roberts said that the voyage on HMAS Melbourne between Jervis Bay and Fremantle occupied between 6 and 7 weeks and he recalled that there was a slight increase in the numbers of cigarettes that he was then smoking but he did not regard it as being "significant". He recalled that he did increase smoking cigarettes after he departed Fremantle because he and others were notified over loud speakers on the ship that an exercise was about to be conducted for between 18 and 19 days which he described as being "war like".. Mr Roberts recalled that during that period he worked 4 hours on and 4 hours off and then frequently working in a hangar below deck where he was busy and under stress because of aircraft movements. He also recalled that he smoked cigarettes during leave breaks and whilst working he would "sneak out and have a smoke".. Thereafter that pattern of cigarette smoking continued and he estimated that he had increased his consumption to between 18-20 cigarettes per day. Thereafter he progressively increased the numbers of cigarettes he smoked to 30 per day and eventually became addicted but he could not recall when.
19. Mr Roberts also recalled that cigarettes were cheaper to purchase outside of Australia because they were duty free and he recalled that three packs of cigarettes cost him 4 shillings. He recalled that he would purchase cigarettes "to stock up" to allow for occasions when the canteen on board the ship was closed. Whilst on leave in Hong Kong in 1961 Mr Roberts said that he purchased a pipe and thereafter he smoked cigarettes and smoked a pipe.
20. Some years later Mr Roberts was engaged in service in Vietnamese waters where his cigarette consumption increased, which he associated with being engaged in a "real war". He was also stressed because his wife was pregnant and due to deliver a child, but he was unable communication with her.”
There was clearly a conflict in the evidence at various times which was set out in the AAT's reasons paragraphs 21 to 25 (appeal book 179-180) and paragraphs 34-38 (appeal book 182-184) set out as follows:
“21. In cross-examination Mr Roberts said that he believed he started to smoke cigarettes because of peer pressure. He was then taken to a questionnaire completed by him at T-6 page 20 where, having said that he commenced to smoke 8-10 cigarettes per day, he was then asked why did he start to smoke on a regular basis. He recorded that smoking of those numbers occurred because of "peer pressure and general stress of duties as air/sea rescue director".. Mr Roberts described those duties as directing aircraft to various parts of the ship, directing the passage of an air/sea rescue helicopter and responsibility for 10 crewmembers. On further questioning however, Mr Roberts acknowledged that he did not become an air/sea director until he qualified as a leading airman which was in 1965. He agreed however that he did commence to smoke by reason of peer pressure in 1958. When he was asked why the questionnaire was apparently misleading, Mr Roberts said that he was not given assistance to complete it nor did he have knowledge of veterans legislation. He said he was asked a number of questions by an RSL advocate at Anzac House in Melbourne and he pointed to the handwriting of the questionnaire as not being his own. He was however unable to explain why in his evidence to the Veterans Review Board he agreed that the handwriting in that document at T-6 p.20 was his own (refer transcript of evidence page 17).
22. Mr Roberts was then asked to explain an apparent discrepancy between the evidence that he gave to the Veterans Review Board and his evidence to this Tribunal concerning the increase in his smoking habit.
23. At the VRB Mr Roberts, together with his advocate Mr Turner, submitted that he was smoking up to about 10 cigarettes per day until 1965 which was at about the time that he travelled to Vietnam. It was also in 1965 that Mr Roberts submitted that he purchased a pipe. When he was asked why it was that he gave evidence at this Tribunal that he increased smoking cigarettes in the Indian ocean in 1961, but did not disclose that evidence to the VRB, Mr Roberts said "they never asked".. He said that all of the discussions at the Veterans Review Board concerned his service at or near Vietnam only.
24. In his proof of evidence dated 15 January 2003 Mr Roberts recorded the following with respect to smoking-
· That I first tried smoking sometime after joining the Navy at HMAS Cerberus and up until sailing from Fremantle with the FESR I have reached a consumption maximum of between 8 and 10 cigarettes per day.
· That my rate of increase accelerated from that time and I was then smoking about 20 cigarettes a day.
· That my increase at that time was due to a number of factors including the fact we were told that we were under war-time type conditions which meant that there was a lot more "pressure" aboard ship. Hot conditions and shifts of 4 hours on, 4 hours off, created circumstances and an atmosphere conducive to smoking.
· But I also began smoking a pipe at about this time and I consumed a maximum of 2 ounces a week, up until ceasing ashore in 1966.
· That I increased my consumption of cigarettes again during the period of my service in Vietnam and reaching a 30 cigarettes per day average due to the stress of being in a significant war like area.
· That I maintained the consumption of about 30 cigarettes a day until cutting down to about 15 a day for the last 12-18 months before ceasing altogether in 1994.
· That my earlier statements with regard to this history were made without the benefit of close questioning and are therefore not as accurate".
25. In re-examination Mr Roberts was adamant that he did increase the smoking of cigarettes in 1961 during the exercise in the Indian Ocean. He said that he could recall smoking more cigarettes than previously, and he felt as if he then "needed" a cigarette more often than previously. He acknowledged that in 1961 he was not then controlling aeroplanes but was then pushing them on the hangar deck and he did not become an air sea rescue director until 1965.
…
34. When the claim for emphysema was initiated by Mr Roberts in 1999, he recorded that he was smoking 8-10 cigarettes per day due to peer pressure and "general stress of duties as air/sea rescue director." In the same document he also recorded that he gradually increased cigarette consumption to between 15 and 18 per day. The stated reason for the change in his pattern of tobacco consumption is recorded as "no definable reason - just became addicted".. In another questionnaire completed at the same time with respect to pipe smoking he recorded that he commenced smoking a pipe in 1958 at 2 ounces per week. When asked "why did you start to smoke a pipe on a regular basis", he recorded "it was a trendy thing to do and in bad weather you could turn the bowl upside down and keep the pipe alight".
35. Insofar as the applicant did smoke a pipe, he said in evidence that he purchased a pipe in 1961 when in Hong Kong, but in his evidence to the Veterans Review Board, he said that he commenced smoking a pipe in 1965 (refer transcript page 9 and page 13). In the overall consumption of tobacco products, little may have been consumed as pipe tobacco nonetheless there were three different dates as to when pipe smoking commenced, none of which I can reconcile.
36. With respect to cigarette consumption there is the questionnaire completed by Mr Roberts in 1999 recording cigarettes being smoked at 8-10 per day with a gradual increase to 15 to 18 per day. In the transcript at page 11, Mr Roberts indicated that he was smoking 10 cigarettes per day for 29 years (page 11), yet at page 14 there is an acknowledgment by Mr Roberts and his advocate of an increase in smoking at May 1965. There is no reference at all in the transcript of the evidence at the VRB of any increase in smoking in 1961 as was the evidence of Mr Roberts at this Tribunal.
37. It was suggested by him at the hearing that he increased his smoking habit by reason of stress associated with his service in an aircraft hangar from 1961 however his duties as an air/sea rescue director and leading airman, with associated stress, did not commence until 1965. Indeed there is a reference in the VRB transcript of the applicant not having increased his smoking habit in 1961 (page 15). In answer to a proposition put to him by a Board member namely "and you said that in 1961 you weren't smoking a hell of a lot because you were around fuel and that kind of stuff", Mr Roberts replied, "that is correct".
38. The applicant said that the stated reasons for smoking and quantities smoked as recorded in the questionnaires were in the handwriting of another person yet in his evidence to the VRB (page 17) he acknowledged that the handwriting was his own. Whether the handwriting in the questionnaires was that of the applicant or the person assisting him is irrelevant to the extent that the applicant did sign the forms and the information supplied and as recorded would have only been on the basis of information obtained from him. Similarly the submissions made by the applicant's advocate at the VRB would have only been made upon the basis of information supplied by or obtained from Mr Roberts. On balance I do not doubt that the applicant did smoke cigarettes which he commenced after enlistment. However, I cannot, for the above reasons, discern whether there was an increase in smoking or if there was, when that occurred and for what reasons. I should say also in conclusion to this part of the reasons that the content of the proof of evidence made on 15 January 2003 contains information not found at all in the documents lodged prior to the hearing, namely smoking cigarettes at 30 per day. The explanation given (apparently in acknowledgment by Mr Roberts that his history prior to the appeal was inconsistent) that "earlier statements with regard to this history were made without the benefit of close questioning" is in my view unacceptable. The questions asked of Mr Roberts by members of the VRB were probing and specific yet the answers then given were inconsistent with the information supplied at primary level and were in many respects inconsistent with the information given in response to examination in chief and cross-examination at this appeal. I cannot, be satisfied beyond reasonable doubt that there is any sufficient ground to connect smoking and consequent emphysema with operational service (refer s.120(1)).”
The AAT found there was material pointing to a hypothesis that the applicant's emphysema was caused by his smoking. There was an SOP in force. He had smoked at least 10 years of cigarettes or the equivalent in other tobacco products and at the third stage of the four stages set out in the Full Court of the Federal Court decision in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 (Deledio) have been established. It is noted by the respondent, and I accept however, that after having read the documents lodged with the AAT and considered the evidence of the applicant it was "satisfied beyond reasonable doubt that the condition was not war-caused" (appeal book 182 at [33]).
It gave as its reason why it was not satisfied that it "found it impossible to make findings of fact connecting smoking and tobacco with service or an increase in the smoking of tobacco with service" (appeal book 182 at [33]); that is, there was no connection between the applicant's smoking and service or any increase in his smoking and his service.
The respondent submitted, and I accept, that the AAT set out conflicting evidence before it from which it was unable to find "whether there (had been) an increase in smoking or if there was, when that occurred and for what reasons" (appeal book 184 at [38]). In coming to that conclusion that it could not find an increase in the applicant's smoking the AAT referred to the fact that the proof of evidence made on 15 January 2003 contained information not found at all in the documents lodged prior to the hearing, namely smoking cigarettes of 30 per day. It also rejected as "unacceptable" the applicant's explanation of the inconsistency and stated that "earlier statements with regard to this history were made without the benefit of closed questioning" because questioning by the Veterans Review Board (the VRB) was probing and specific. The AAT found that the applicant's answers to the VRB's questions were inconsistent with information supplied at a primary level and in many respects with the responses given during both examination‑in‑chief and cross‑examination before the AAT.
In his notice of appeal the applicant relies upon the following grounds:
“4(a) the tribunal having determined that the first three stages of the Deledio test had been satisfied, in that there was material pointing to a hypothesis connecting the applicant's condition with relevant service, and that this hypothesis was a reasonable one, it should not and could not have been satisfied on the evidence beyond reasonable doubt that the condition was not war-caused.
4(b)the tribunal having not rejected the applicant's evidence out of hand, and having made no adverse findings concerning his credibility, and having accepted that the hypothesis raised was a reasonable one, could not and should not have concluded beyond reasonable doubt that there was no connection between the condition and the applicant's war service.
4(c)statements by the tribunal to the effect that it was impossible to make findings of facts connecting smoking of tobacco with service or an increase in the smoking of tobacco with service and that the tribunal could not discern whether there was an increase in smoking or, if there was, when that occurred and for what reason, and that it cannot be satisfied beyond reasonable doubt that there is any sufficient ground to connect smoking and consequent emphysema with operational service reflect an application of an incorrect test or an incorrect application of the correct test, namely deciding whether it was satisfied beyond reasonable doubt that the condition was not war-caused.
4(d)this is beneficial legislation in which there is no onus of proof on the applicant. The tribunal imposed one on the applicant and thus erred.
4(e) the inconsistencies in the applicant's evidence were explicable and were explained by the fact that it was only in the course of preparing for the tribunal hearing that the applicant had the benefit of legal representation to concentrate his mind on a sequence of events that had occurred 40 years before and which he had not had cause to examine in this context previously. This is presumably part of the reason for the statutory scheme in section 120(1). Absent a finding that the applicant was not to be believed, there were no grounds on which the tribunal could have been satisfied beyond reasonable doubt that the condition was not war-caused.”
In the applicant's outline of submissions reliance was placed upon Deledio and in considering the issue of an error of law reference was made to Commonwealth Bank Corporation v Percival (1988) 20 FCR 176 at 182 and Repatriation Commission v Hill (2002) 69 ALD 581 at 599-600. A detailed analysis was undertaken of the evidence before the AAT as to increased smoking and conclusions which may be drawn where an apparent inconsistency before the tribunal as to the applicant's evidence and response to a previous questionnaire and statements to the VRB. It was submitted:
Even because the tribunal expressly applied the wrong test in paragraph 38 of its decision, or alternatively, because being satisfied beyond reasonable doubt that neither identified period of operational service was related to his increase in smoking on the evidence tendered, it can be inferred that the tribunal must have made an error of law and the applicant submits that the decision made should be quashed.
It is otherwise claimed that the AAT ignored relevant material and relied on irrelevant material. The relevant material ascribing to the applicant that his explanation for increasing smoking was "by reason of stress associated with his service in an aircraft hangar from 1951, however, his duties in air/sea rescuer director and leading airman "with associated stress, did not commence until 1955" (appeal book 183 paragraph [37]).
The relevant material ignored by the AAT was claimed to be describing essentially dangerous and mass operations in Jetex 61 with so many ships in the area and a sense of tiredness and relentless operations during it and the stress from the need to keep alert and avoid errors despite fatigue which could be catastrophic in relation to aircraft movements.
In relation to the further increase in 1955, it was submitted there was indeed added stress due to the applicant's greater responsibilities of aircraft movements of a leading hand air/sea director in a war zone, yet the AAT apparently ignored or dismissed that evidence.
The respondent in dealing with the applicant's submissions that the AAT had made an error of law because it was satisfied beyond reasonable doubt that "neither period of operation of service is related to the increase in smoking on the evidence tendered", that the applicant's claims had been rejected for two reasons. The first was the submission rests on the premise that the AAT found that there was an increase in the applicant's smoking and it was claimed the AAT did not make such a finding. Secondly, even if the AAT had made a wrong finding of fact, an error of fact does not give rise to an error of law. Reliance was placed upon a decision of Kenny J in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146] where the court states:
“146 The above observations concern the sufficiency of the Tribunal's explanation for its opinion about the circumstances in which Mr Rajalingam came to leave Sri Lanka. A concern of that kind can, however, rarely form the basis for a finding of error of law. A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu (unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 13 May 1999) [1999] HCA 21 at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne J; Australian Broadcasting Tribunal v Bond (1990)170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 (FC). In my view, the effect of his Honour's judgment was to turn what his Honour saw as doubtful fact-finding into an error of law. What his Honour did, I think, was erroneously attribute to the RRT the doubts his Honour had about the facts the RRT had found. Once that step was taken, his Honour treated the RRT's failure to address those doubts as indicative of a failure to take them into account in reaching its ultimate decision, as the decisions in Guo and Wu Shan Liang indicated it should have done. I agree with the remarks of Katz J in Zuway (unreported, 31 December 1998) [1998] FCA 1738 that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal.”
The respondent submitted that in this case the AAT asked itself the right question whether it was satisfied beyond reasonable doubt that the applicant's emphysema was not war-caused. To answer that question the AAT considered the evidence regarding the applicant's smoking. It was noted the parties agreed at the beginning of the hearing that the issues to be determined by the AAT were whether the applicant increased his smoking, and if so, for what reasons. As to the suggestion of the AAT ignoring relevant material or relying on irrelevant material, it was submitted that claim should be rejected. Reliance was placed upon a High Court decision in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at pages 347-348 where the court states the following:
“The considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider. In that regard it is important to recall, as Brennan J said in Attorney-General (NSW) v Quin (1990) 170 CLR at 35-36:
The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison (1803) 1 Cranch 137 at 177 [5 US 87 at 111]: 'It is, emphatically, the province and duty of the judicial department to say what the law is.' The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.”
Submissions raising concern about the AAT ignoring or dismissing evidence regarding the reasons for what is described as further increase in smoking in 1955 must, according to the respondent's submissions, be rejected as it is clear the AAT in its reasons carefully considered all of the material before it. Insofar as any submission is premised on an increase in smoking in 1955, it was noted the AAT did not find any increase in the applicant's smoking in that year.
The respondent otherwise dealt in order with the grounds of appeal. Ground 4(a) it is submitted cannot be sustained because acceptance of that ground would render the fourth step in Deledio otiose. Once the AAT accepted that the applicant's emphysema was caused by his smoking, then the VE Act as interpreted by Deledio required the AAT to make a finding as to whether it was satisfied beyond a reasonable doubt his emphysema was not war-caused. His emphysema could not be war-caused if his smoking was not war-caused and his smoking would be war-caused if the smoking of "10 packs a year of cigarettes" was contributed to in a material degree by his service or that it would not have occurred but for the rendering of the service (see Kattenderg v Repatriation Commission (2002) FCA 412 at [44]). Detailed reference was made then to the evidence of the applicant before the AAT which it is claimed by the respondent showed that his smoking of the requisite number of cigarette and tobacco products was not war-caused.
It was submitted that it was open to the AAT to find it was satisfied beyond reasonable doubt that the smoking of the requisite number of cigarettes by the applicant was not war-caused.
In relation to ground 4(b), it was argued that while the AAT may not have said in its decision that it "rejected" the applicant's evidence or in not finding him to be "credible", it clearly expressed its disbelief in its reasons. Reference was made to the description by the AAT of the evidence of the applicant as being "unacceptable".
In relation to ground 4(c), it was argued that on a fair reading of the AAT's decision it was satisfied beyond reasonable doubt that the applicant's smoking of the requisite number of cigarettes was not war‑caused. The reasons of the AAT must be given beneficial construction and reliance was placed upon the decision of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 295 at page 271.
Taking a statement out of context in the reasons it was submitted would be to deny the reasons a "beneficial construction".
In relation to ground 4(d), it was argued the AAT did not impose any onus of proof, but rather asked itself whether on the evidence before it it was satisfied beyond reasonable doubt that the applicant had not commenced smoking on operation of service or had not increased his smoking on service.
Finally, in relation to ground 4(e), it was noted that in fact the tribunal had made findings effectively that the applicant's "evidence to the AAT which merely raised an increase in smoking in 1951 was not believed".
Reasoning
In my view, the application for extension of time should be refused. There has been a considerable delay in the application of a kind which should properly be of concern to the court in the exercise of its discretion having regard to the relevant principles to be applied. The fact that there is an absence of prejudice to the respondent does not of itself mean that the application for extension of time should be granted. Whilst a satisfactory explanation for the delay is not a precondition, it would normally be expected in a case of this kind and the material placed before the court, in my view, does not provide any or any adequate explanation for the delay.
More importantly, I am satisfied that the respondent's submissions in relation to the grounds of appeal are correct. The AAT on a proper reading of its reasons has not imposed an incorrect test. It has not made findings of a kind which could be regarded as failing to have regard to relevant or taking into account irrelevant considerations. This was clearly a fact-finding mission undertaken by the AAT. It followed, in my view, the four-step process in Deledio correctly and it did as it was required to do, namely having considered the evidence and having found evidence of the applicant unacceptable, it then concluded that it was inappropriate to make findings of fact connecting smoking of tobacco with service or an increase in the smoking of tobacco with service. In doing so it has clearly, and I accept, directed itself to the issue of causation.
There was clear conflict in the evidence and the material which needed to be assessed by the AAT and I can see no error of law in the way in which it approached its task. It was open to the AAT to find that it was "satisfied beyond reasonable doubt that the condition was not war‑caused". Although the tribunal had made a statement that it could not find a connection between the applicant's smoking and consequent emphysema with operational service, I accept, as submitted by the respondent, that it is clear from the context in which that statement was made that the AAT had understood that it had to find the applicant's emphysema was war-caused unless it was satisfied beyond reasonable doubt there was no sufficient ground for making the determination. It had already made that statement clearly in paragraph 33 of its reasons set out above.
It is not for this court to analyse in minute detail each and every statement made by the AAT in circumstances where a proper and fair reading of its reasons having regard to the benefit approach in relation to construction as set out by the High Court in Wu Shan Liang to then further be critical of the AAT in relation to specific sentences which may, as described by the respondent, be perhaps "unhappily worded".
I accept in the circumstances that the AAT applied the correct test in respect of both the conditions claimed, that is, emphysema and allergic rhinitis, though came to a different conclusion in respect of the emphysema. It was entitled to do so on the material before it and after assessing the facts in the manner described. I do not accept in the present case that it could be properly said that there was a wrong finding of fact, though even if there was a wrong finding of fact that of course would not give rise to an error of law and I would otherwise apply the principles set out by Kenny J in the Rajalingam case referred to earlier in this judgment.
For those reasons it follows that the application for extension of time should be refused and the applicant should pay the respondent's costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 2 December 2004
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