Schulz v Repatriation Commission

Case [2014] FCA 387

FEDERAL COURT OF AUSTRALIA

Schulz v Repatriation Commission [2014] FCA 387

Citation: Schulz v Repatriation Commission [2014] FCA 387
Appeal from: Schulz v Repatriation [2012] AATA 561
Parties: JOHN SCHULZ v REPATRIATION COMMISSION
File number: QUD 553 of 2012
Judge: DOWSETT J
Date of judgment: 22 April 2014
Catchwords: DEFENCE AND WAR – Veterans – Entitlements – application for pension – appeal from decision of Administrative Appeals Tribunal – where Repatriation Commission satisfied beyond reasonable doubt that conditions not linked to service – where statement of principles did not support a reasonable hypothesis – whether Repatriation Commission required to exercise power under Veterans’ Entitlements Act 1986 (Cth) s 180A.
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 43
Legislative Instruments Act 2003 (Cth)
Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth)
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 13, 13AA, 13AB, 14, 15, 16, 19, 57, 79T, 93Z, 118ZS, 120, 120A, 135, 175, 180, 180A, 180B, 196A, 196B, 196E, 196Y
Cases cited:

Bushell v Repatriation Commission (1992) 175 CLR 408 discussed
Byrnes v Repatriation Commission (1993) 177 CLR 564 cited
Repatriation Commission v Deledio (1998) 83 FCR 82 cited
Date of hearing: 6 February 2013
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 36
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: Ms H Bowskill
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 553 of 2012
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

JOHN SCHULZ
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

DOWSETT J

DATE OF ORDER:

22 APRIL 2014

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.the application be dismissed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 553 of 2012
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

JOHN SCHULZ
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

DOWSETT J

DATE:

22 APRIL 2014

PLACE:

BRISBANE

REASONS FOR JUDGMENT

THE APPLICANT

  1. The applicant (“Dr Schulz”) has a substantial record of service with the armed forces of both Australia and New Zealand. In particular he served with the Royal New Zealand Army Medical Corps in Vietnam from 9 February 1971 until 26 August 1971. Such service was “operational service” for the purposes of s 6C of the Veterans’ Entitlements Act 1986 (Cth) (the “Act”). Dr Schulz is a “veteran” as that term is defined in the Act. His operational service is eligible war‑service pursuant to s 7. Section 9 provides that any injury suffered, or disease contracted, arising out of, or attributable to eligible war service will be a war‑caused disease or injury. It is common ground that if Dr Schulz suffers from a war‑caused injury or disease causing incapacity, he will be entitled to a pension pursuant to s 13 of the Act. Pursuant to s 14 Dr Schulz may “make a claim” for such a pension. Any…

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Details
AGLC
Schulz v Repatriation Commission [2014] FCA 387
Case
[2014] FCA 387
Decision Date

CaseChat Overview and Summary

In the case of Schulz v Repatriation Commission, Dr Schulz, an applicant for a war veterans’ pension, contested the rejection of his claim by the Repatriation Commission. The dispute centred on whether the Commission was required to exercise its power under s 180A of the Veterans’ Entitlements Act 1986 (Cth) when it determined that his conditions were not linked to his operational service. The case arose from the Administrative Appeals Tribunal, where Dr Schulz had appealed the decision of the Repatriation Commission. The primary legal issue before the court was whether the Repatriation Commission, in deciding that Dr Schulz's conditions were not linked to his service, was required to consider evidence beyond the statements of principles.

The court examined the Repatriation Commission’s decision-making process and the role of the statements of principles in determining Dr Schulz's entitlement to a pension. The court noted that the Commission's delegate rejected Dr Schulz's claim on the basis that his conditions could not be linked to his operational service, relying on the statements of principles. Dr Schulz argued that the Commission should consider other evidence, including American research, which he believed supported a hypothesis connecting his conditions to his service. The court scrutinised whether the Commission was bound by the statements of principles or could consider other evidence. It found that the Commission was not required to exercise its power under s 180A when it had already determined, based on the statements of principles, that Dr Schulz's conditions were not linked to his service. The court upheld the decision of the Commission, concluding that the statements of principles adequately supported the decision.

The court's decision was grounded in the understanding that the statements of principles provided a sufficient basis for the Commission’s determination and that there was no requirement for the Commission to exercise its discretion under s 180A in this instance. The court dismissed Dr Schulz’s application, affirming the decision of the Repatriation Commission.

Orders

Orders of the court

1. the application be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Dr Schulz’s application was rejected by the Commission’s delegate (the “delegate”) upon the basis that none of his conditions could be related to his operational service, having regard to relevant statements of principles. As to his IHD and hypertension, the delegate seems to have suspected that Dr Schulz was basing his claim upon the Act as it stood prior to the amending Act and sought to demonstrate that even on that mistaken basis, his claim would fail. In effect, the delegate understood him to be submitting that the decision in Bushell allowed him to rely on the American research as establishing a sufficient hypothesis as to the connection between his conditions and his operational service, that research taking the place of the eminent medical practitioner referred to in Bushell. Assuming the correctness of the false assumption to which I have referred, the delegate rejected this approach on the basis that such research could not take the place of the eminent medical practitioner. This conclusion seems to suggest that the delegate would not act on the evidence as to such research, whereas she would have acted on the evidence of a relevant medical practitioner. The reason for this “preference” may have been that the American research and associated opinions were not established on the evidence to her satisfaction, whereas the opinion of the hypothetical medical practitioner would have been so established. However the delegate also concluded that such evidence as there was as to the research was not sufficient to support an appropriate hypothesis. Finally, the delegate pointed out that the amending Act had introduced the statements of principles regime, and that no relevant statement of principles supported Dr Schulz’s claims concerning either his IHD or his hypertension.DECISION OF THE VETERANS’ REVIEW BOARD Dr Schulz applied to the Veterans’ Review Board (the “Board”) for review of that decision. In his written submissions Dr Schulz again appears to have assumed that the approach adopted in Bushell and Byrnes had not been affected by the amending Act. At para 12 of the submissions he said:Under the [Act], a veteran has to provide a ‘reasonable hypothesis’ connecting his complaint to his operational service. This was subsequently ruled upon by the High Court of Australia in what is referred to as “Bushell and Byrne” in which the Court adopted a variation of the Bolam principle by in effect holding that the opinion of a respected body of eminent medical practitioners, even if in the minority, is required to satisfy a causative link between operational service and the complaint.Dr Schulz then referred to a particular committee, asserting that:[T]he opinion of that body of eminent practitioners in the field satisfies the requirements of the [Act] and my claims for Ischaemic Heart Disease and Hypertension should be accepted. He then asserted that his claims satisfied aspects of the relevant statements of principles. He now concedes that his claims concerning IHD and hypertension do not satisfy any relevant statement of principles. He also submitted that in any event, he did not accept that the statements of principles were binding upon him, asserting that any such acceptance would involve acceptance of the “revocation of my right to natural justice/procedural fairness”. He then referred to ss 180A and 180B of the Act, submitting that they were enacted to “correct the chaos” arising out of contradictory decisions of the Commission. He submitted that statements of principles did not “bind” the Commission’s delegates, so that they were free to determine a veteran’s claim by reference to other medical or scientific evidence, even if the relevant statements of principles were not satisfied.

Ratio Decidendi

Legal Principle Established

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