Seale and Anor and Repatriation Commission

[2004] AATA 700

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 700

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1622

VETERANS' APPEALS DIVISION		)              N2003/1476
Re		1. SHIRLEY SEALE 2. GLORIA HEALEY

Applicants

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal The Hon R N J Purvis Q.C., Deputy President

Date30 June 2004

PlaceSydney

Decision The application for adjournments is refused.

[sgd] The Hon. R N J Purvis Q.C.
  Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – both applicants seek widow’s pension – husbands died from prostate cancer – onset of cancer linked to cigarette smoking - Repatriation Medical Authority conducting a review of the Statement of Principles relating to prostate cancer that could include a cigarette smoking factor – adjournment of substantive application sought until review completed – Tribunal to decide applications on the law as it is at the time of hearing – principles discussed – application for adjournment refused
LEGISLATION
Veterans’ Entitlements Act 1986

section 120A

Administrative Appeals Tribunal Act 1975

sections 33, 40(1)(c)

CASELAW
Vietnam Veterans’ Affairs Association of Australia NSW Branch v Cohen and others (1996) 70 FCR 419
Repatriation Commission v Gorton [2001] FCA 1194
Thornton v Repatriation Commission (1981) 52 FLR 285
Re Beale and Repatriation Commission 49 ALD 122
Re McMillan and Repatriation Commission (1997) 46 ALD 447
Beale v AAT and Repatriation Commission (1998) 50 ALD 89
Meggitt Overseas Limited and Others v Grdovic (1998) 43 NSWLR 527  
McMillan and Anor v Repatriation Commission (1998) 81 FCR 45
Re Chandler and Repatriation Commission (1993) 30 ALD 107
Re McLean, Rimes and Grieve and Repatriation Commission (1994) 31 ALD 611

REASONS FOR DECISION

30 June 2004            The Hon R N J Purvis Q.C., Deputy President

the applications

1.      Applications for review are presently pending before the Tribunal by Ms Shirley Seale and Ms Gloria Healey, each of whom seeks a widow’s pension.  In each application an issue arises as to the causative influence of inter alia cigarette smoking on the onset of prostate cancer for each of their now deceased husbands.  They each have appealed to the Tribunal against the Repatriation Commission’s (“the Commission”) decision that their husbands’ deaths from prostate cancer were not war-caused.

2.      The relevant issues in Ms Healey’s application are as in that of Ms Seale.  The decision in the one is applicable to the other.  For convenience I shall deal in these reasons expressly with that relating to Ms Seale.

3.      The decision by the Commission that is under review is one dated 10 April 2002, which determined that the late Ross Seale’s death on 14 April 1999 was not causally related to operational service.  If her application for a widow’s pension had been successful, the earliest date of its effect would be the 28 December 2001.

4.      It is stated on behalf of the Commission that an issue arising for determination in the substantive proceedings is whether the prostate cancer experienced by Mr Seale was war-caused within the meaning of the relevant Statements of Principles (SoP) Instrument No 84/1999 as amended by Instrument No 69 of 2002.  The SoP in this matter concerns malignant neoplasm of the prostate.

5.      As was noted in the Applicant’s statement of issues, the issues include Mr Seale’s smoking habit over time. “This is not currently the subject of a SoP factor but was an issue considered in a recent review of the SoP”.  Indeed at the present time the Repatriation Medical Authority (RMA) is conducting a review of that SoP and it is contended on behalf of the Applicant that there might be an amendment to the SoP to include a cigarette smoking factor.

6.      Application is now made on behalf of the Applicant for the hearing of the substantive appeal to be adjourned and not listed for a hearing on the merits until the RMA has reviewed the relevant SoP and made its determination in respect of prostate cancer and a cigarette smoking factor.

7.      The application for adjournment is opposed by the Commission it being contented that it would be speculative to think that the RMA might include such a cigarette smoking factor in the SoP in the near future given

“(a) the long history of litigation concerning Statements of Principles concerning this disease (commencing in 1995 see VVAA NSW v Cohen [1996] FCA 981, (1996) 70 FCR 419) and the numerous unsuccessful attempts to have a cigarette smoking included in the SoP (see VVAA (NSW) v SMRC [2002] FCAFC 439), and

(b) that the RMA still has numerous investigations in progress that commenced in 2002.”

legislative frame work

8. Section 120A of the Veterans’ Entitlements Act 1986 (“the Act”) provides as here relevant:

“(1) This section applies to any of the following claims made on or after 1 June 1994:

(a) a claim under part II that relates to the operational service rendered by a             veteran;

…

(2) If the Repatriation Medical Authority has given notice under section 196G that it  intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or

(b) has declared that it does not propose to make such a Statement of Principles.

(3) For the purposes of subsection 120(3) a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a) a Statement of Principles determined under subsection 196B(2) or (11); or

(b) or determination of the Commission under subsection 180A(2);

that upholds the hypothesis.”

9.      Consistent with the decision in McMillan and Anor v Repatriation Commission (1998) 81 FCR 45 where it had been argued that the Act required the Tribunal to delay hearing an application until a review by the RMA had been completed, it is competent for the Tribunal in the exercise of its discretion to proceed with a hearing of a substantive application if it should so decide. With reference to section 120A (2) it was said in McMillan and Anor (supra) at page 51:

“…The subsection provides for a bar on the Respondent determining certain claims made to it if the RMA has given notice of its intention to carry out a relevant investigation.  The subsection then provides two exceptions to that bar.  The first exception is where the RMA has determined a SoP in respect of the relevant injury, disease or death.  The second exception is where the RMA has made a declaration stating that it does not propose to make a SoP in respect of the relevant injury, disease or death.

In the circumstances of each claim before the AAT there was in existence a relevant SoP.  Therefore, there was no bar on the Respondent and the AAT determining the relevant claims, because the matters fell within the first exception provided in the subsection.

…

The construction of section 120A(2) of the Act favoured by the Court, in my view, flows naturally on the face of the words themselves. However, such a construction …”gives effect to the general purpose of the SoP system…namely, to ensure that, as far as feasible, decisions on the medical component of claims were made within the framework prescribed by the RMA”.

That framework was correctly described …as follows:

(i) Where there is a SoP, the claim is to be determined by reference to the template expressed in that SoP.

(ii) where there is no SoP, but the RMA has announced an investigation that could lead to a SoP, the claim is to be deferred.

(iii) where there is no SoP and no investigation has been announced, the claim is to be determined by applying the pre-1994 law…”

10. SoP’s made under the Act are legislative and not administrative instruments. As stated in Vietnam Veterans’ Affairs Association of Australia NSW Branch v Cohen and others (1996) 70 FCR 419 at 431:

“The statements have binding legal effect on applicants in the sense that unless there is in force a statement that upholds a reasonable hypothesis of a connection between the injury and the particular service, the claim must fail: s 120A(3).

A second feature is that the statements are designed to apply generally to claims relating to pensions.

These two features of the statements tend to indicate that the function is a legislative not administrative power…

A further relevant but not controlling feature of the statements is that they are “disallowable” instruments: s196D.  They have in fact been laid before both Houses of Parliament as required before they were implemented. The making of the statements must be notified in the Gazette to ensure publicity. They are subject to disallowance by either House.  Consequently, they are subjected to public exposure, comment, objection and criticism, and to parliamentary disallowance as part of the political process…”

With respect I adopt the view expressed by Tamberlin J in Vietnam Veterans’ Affairs Association of Australia NSW Branch v Cohen (supra) and the other observations made by him in a consideration of the process required prior to a SoP being determined and obtaining its legislative form.

discretion to grant or refuse an adjournement

11.     Section 40(1) (c) of the Administrative Appeals Tribunal Act 1975 (Commonwealth) confers upon the Tribunal a discretionary power to adjourn proceedings before it. In exercising that power the Tribunal must however have regard to duties imposed upon it pursuant to section 33 (1) of the Administrative Appeals Tribunal Act 1975 namely:

“(1) In a proceeding before the Tribunal

(a) the procedure of the Tribunal is, subject to this Act and the Regulations and to any other enactment, within the discretion of the Tribunal;

(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and any other relevant enactment in a proper consideration of the matters before the Tribunal permit; and

(c)…”

These are the relevant determinants.

12. The Applicant in the present matter is asking the Tribunal not to proceed to a hearing of the substantive application pending a possible change in the law for by reason of the mandatory nature of section 120A of the Act, that is in effect the sequel to an amendment of a SoP (see VVAA NSW v Cohen and others (supra); Repatriation Commission v Gorton [2001] FCA 1194).

13.     The Commission on the other hand maintains that “it is not in the interests of justice that matters be left in abeyance in the hope that the law might change”, and in this regard relies on the decision in Thornton v Repatriation Commission (1981) 52 FLR 285 where at 291 it was said:

“These authorities were referred to in this country by Dean J in R v Whiteway; ex-parte Stevenson [1961] VR 168 in the following passage:

“Sometimes adjournments have been made pending the decision of another case and, in general, this is legitimate enough – Re Yates Settlement Trusts…At the same time an indefinite adjournment may amount to a denial of justice, and a refusal by the tribunal to perform its duty to hear and determine matter before it: see Hinckley and South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32;  Robertson v Cilia (1956) 1 WLR 1502. The question is whether in the present case the adjournment was dictated by relevant considerations or whether, on the other hand, the discretion was exercised for extraneous reasons.  I think it was the duty of the court, when the applications came on for hearing to deal with them in accordance with the law as it then stood.  In Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Limited Starke J said: “Courts of Law can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future” ((1935) 54 CLR 230 at page 253). This was said in the course of a dissenting judgment, but none of the other members of the Court expressed any contrary view, and I think what his Honour said was correct. It would be a cause of injustice if courts could adjourn cases because they had some real or imagined belief that the law might be amended.”

14.     In Re Beale and Repatriation Commission 49 ALD 122 the Tribunal in its decision adopted what had been said in Re McMillan and Repatriation Commission (1997) 46 ALD 447 at 453. On appeal (Beale v AAT and Repatriation Commission (1998) 50 ALD 89 the Federal Court agreed with this statement of the law and said:

“The legislative nature of an SoP and the express provisions of ss 120A (2) and 120B (2) go far to confirm that those rights are not intended to lead to the general result that a claim for a pension is not to be determined by the Commission or those standing in its shoes until a pending request for review of the contents of an SoP has been resolved.  By providing that once the RMA has given notice under s 196G of its intention to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission must not determine a relevant claim until either the RMA has determined an SoP in respect of an injury, disease or death of the relevant kind or declared that it does not propose to do so, ss 120A (2) or 120B (2) recognise that where an initial SoP has already been determined, the Commission and those who stand in its shoes are not to refrain from determining a relevant claim merely because an investigation by way of review of the contents of an already existing SoP has been requested by a claimant or is otherwise pending…

…where the RMA “has already made a Statement of Principles” the Commission and those standing in its shoes are to be at liberty to determine a relevant claim.”

progress in rma review

15.       A history of the situation so far as the RMA reconsidering the SoP relating to smoking and prostate cancer is briefly detailed in a letter of 13 June 2004 from the Vietnam Veterans’ Association of Australia N.S.W. Branch Inc to Ms Judith Buss of the Veterans’ Advocacy Service, Legal Aid Commission placed before the Tribunal.  So far as is relevant to the present application such letter reads:

“The Vietnam Veterans Association (VVAA) lodged in 1994 a submission to the Repatriation Medical Authority (RMA relating to the link between smoking and prostate cancer.  The RMA did not include the smoking factor in the Statement of Principles (SoPs).  The VVAA appealed this decision to the Specialist Medical Review Council.  The Council rejected this appeal and this decision was appealed to the Federal Court…

In the above mentioned decision [Vietnam Veterans’ Association (NSW Branch) v Specialist Medical Review Council [13 March 2003 FCAFC 41]] the Federal Court stated that the SMRC did not apply the correct standard of proof.

The RMA is now reconsidering the SoPs relating to smoking and prostate cancer…”

16.     The Registrar of the Repatriation Medical Authority in a communication to Ms Buss of 11 June 2004, such communication being placed before the Tribunal, detailed the progress to this date with the reconsideration of the SoP. The relevant portion of such communication reads as follows:

“Background

This investigation was notified in the Government Gazette of 16 July 2003.

Date for closure of submissions was advertised as 12 September 2003, however the Authority will accept submissions after this date and consider them as part of the ongoing investigation.  Additional submissions will be accepted until such time as an outcome is determined.

The Authority has received requests for a number of particular issues to be considered in the current investigation/review process of the Statements of Principles concerning malignant neoplasm of the prostate.

When an investigation or review is advertised, the Authority is required to review all of the existing factors in the Instruments, not only those factors which have been mentioned in the requests.

A medical officer/researcher from the RMA Secretariat is assigned the task of conducting electronic searches, reviewing medical-scientific material, and preparing a detailed working paper for presentation to the members of the Authority.

Articles are obtained electronically where possible, but in some instances ‘hard copying’ has to be undertaken from library sources.  This process for MN of the prostate has been very detail-intensive and time consuming.

When the material is all collated and the working papers completed, all information is presented to the first available meeting of the Authority. Depending on the number and complexity of issues to be addressed in an investigation, a particular condition may be considered over a number of Authority meetings.

In regard to malignant neoplasm of the prostate, a medical officer has been assigned this task and is currently collecting and collating all material, prior to submitting a detailed submission to the Authority.

It has recently been drawn to the Authority’s attention that two significant studies which are particularly relevant to this review (the 50 Year Update of the British Doctors Study and an Update of the US Surgeon General’s Report), are due to be published in 2004.  The Authority has indicated that they wish to consider these studies prior to finalising the current investigation.

In relation to your particular questions:

*whether the investigation is complete

This investigation is ongoing and it is unlikely that this investigation process will be finalised before the end of 2004.

*how many times and when has the RMA met to consider the information gathered

The assigned medical officer has been collecting and collating all material, prior to submitting a detailed working paper to the Authority.  This process is still continuing.

*what other meetings are scheduled

The proposed RMA meeting schedule for the remained of 2004 is:

28 & 29 June

9 & 10 August

27 & 28 September

25 & 26 October

6 & 7 December

*what other actions must be completed before the review is finalised.

After the outcome of the investigation/review is decided at a scheduled RMA meeting:

1. Statements of Principles are drafted.

2. If a decision has been made that a factor is to being removed or significantly changed from that in the existing Statement, a copy of the proposed Statement and supporting material is forwarded to the peak-body ex-service organisations for comments or the opportunity to put forward a case as to why the proposed change should not be made.  The agreed timeframe for this process is eight weeks.

3. A “final” Statement of Principles is printed for the Chairperson’s signature.

4. Other support material is drafted [ie Gazette Notice, Explanatory Memorandum].

5. The Gazette Notice is forwarded for publication in the next available Government Notices Gazette. This date of publication, a Wednesday, is the date of effect of the Instrument.

6. Applicants and all other interested parties are notified of the investigation outcome.”

submissions on behalf of the applicant

17.     The Applicant maintains that the only restraint on the Tribunal’s discretion to adjourn the hearing to await the RMA review of the SoP is the test as to whether “there are circumstances which a reasonable man might consider render this delay justified and not capricious” (Thornton v Repatriation Commission (1981) 52 FLR 285 at 292; Beale v AAT & Anor (1998) 58 ALD 89).

18.     Reference has earlier been made in these reasons to the provisions of the Administrative Appeals Tribunal Act 1975 referable to an adjournment.

19.     After noting the process by which a SoP is made or reviewed – details of which have been earlier set forth in these reasons – and that both the RMA and the AAT are engaged in determining the eligibility of claimants for pension for war-caused death, injury or disease, the submission is made that “good administration requires that each branch should perform its functions alert to and aware of what is currently being considered and decided by the other”.

20.     There is however a statutory obligation on the Tribunal to apply the law as it is to facts presented to it at a hearing.  There is no obligation on it and indeed it would be wrong for it to take into account “what is currently being considered” in arriving at a decision.  If a decision is imminent which would change the law then in light of the ability of a claimant to benefit from such a change by making a fresh application, a delay might be appropriate.  But that is not the position here.  A change is by no means certain or imminent.

21.     It is said that there are special circumstances why the Tribunal should await the SoP review namely:

·the reasons that prompted the Vietnam Veterans’ Association of Australia N.S.W. Branch to appeal to the New South Wales Supreme Court and the Federal Court and the reasonable hypothesis test that is now properly to be applied in making a SoP determination;

·the current SoP was made before the Vietnam Veterans’ decisions were handed down and were said to have been so made consequent upon there being application of “a too severe test to a significant body of supportive epidemiological evidence”.  It was then considered appropriate for there to be a review by the RMA of the current SoP.

·the RMA is currently conducting a review and a decision as to whether an amended SoP is appropriate is yet to be made.

22.     It was also submitted that it is a relevant consideration for me to assess the merits of the hypothesis just as the RMA is now doing, this particularly in light of decisions made in 1993 and 1994 by the Tribunal (see Re Chandler and Repatriation Commission (1993) 30 ALD 107; Re McLean, Rimes and Grieve and Repatriation Commission (1994) 31 ALD 611). I do not accept this submission. It is for the RMA to arrive at a determination, this following compliance with the extensive procedure above detailed. It is not for the Tribunal to consider the possible nature of a determination that might be made. Indeed the very nature of a SoP precludes an independent assessment by the Tribunal being in any way relevant.

23.     Each of the “special circumstances” relied upon by the Applicant fall within the category of requiring the Tribunal to so consider “the possible nature of a determination that might be made”.  The Tribunal does not accept that it should so speculate.

24.     The Applicant first made claim for a pension in 1999.  This claim failed by application of the current SoP.  If an adjournment not be granted and she not succeed at a hearing the Applicant is not precluded from making a further claim in the event of the SoP being later amended to include a smoking factor.  The only prejudice she would have suffered is a loss in the backdating of her entitlement to February 2001.

submissions on behalf of the commission

25. The Commission contends that consistent with the intentions of the Act, vis, sections 155AA and section 14 (6), (7), matters are to be pursued in a timely manner and if an application is not brought on for hearing within two years without reasonable excuse it may be dismissed. A claimant is not precluded from again applying if there is a change in the law referrable to such a claim.

26. A SoP has been determined by the RMA in respect of prostate cancer (malignant neoplasm of the prostate). Even though a review of that SoP is in progress section 120A (2) indicates that a decision-maker is to proceed to hear a matter on the basis of the law as it then is.

27.     The Commission further contends that “the possibility of a change in the law” is an irrelevant consideration to an exercise of the discretion to grant an adjournment.  As already indicated I agree with this submission.  As the law to be applied in a substantive hearing would be the law in force at the date of a decision such a possible change could not be relevant even if it might confer a benefit not otherwise available to a claimant.  The operative words in this context are “possibility of a change in the law” and the imminence of such a possible change.  In the present matter there is no indication from the RMA as to change and there is no indication of any change being imminent.  The time for consideration of an amended SoP is uncertain.  It is not open to the Tribunal on the basis of the stage reached by the RMA in its consideration to infer that the SoP will or is likely to change.  There may well be a further reference to the Specialist Medical Review Council (SMRC).

28.     The Administrative Appeals Tribunal Act 1975 does require the Tribunal to proceed with as much expedition as the Act and a proper consideration of relevant matters permit. The available discretion is not at large.

29.     The prejudice to the Applicant in the event of the present application proceeding to a hearing and an adverse finding being made and then a favourable decision by the RMA or SMRC in relation to an amended SoP is the loss of the backdating of a benefit.  She would still however have to satisfy a decision-maker that the facts of her case fell within the parameters of the then SoP.

decision

30.     The Tribunal is to act upon the law as it is at the time of its decision making.  It is not relevant for a Court or the Tribunal to speculate upon the law that might be in the future (see Thornton (supra) page 292).  This is in contradistinction to the situation were a law is being clarified or construed by an appellate body.  Indeed as it was said in Meggitt Overseas Limited and Others v Grdovic (1998) 43 NSWLR 428 at 530:

“Since it is the task of the executive branch to give effect to Parliament’s intention expressed in legislation and the sworn duty of the judicial branch to uphold the law in decision making it is to me self evident that neither may disregard an enactment so long as it stands.”

And at 533:

“And most significantly there is the decision of this Court in Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246. There the Court of Appeal by majority refused an adjournment application based upon the “prospect of a legislative change in the situation. Thirdly as a general rule it is not a proper exercise of the discretion to grant an adjournment on the ground that it is believed that the law may or will be changed in the near or remote future…”

31.     To grant an adjournment in the present matter would be tantamount to seeking to disregard an enactment that presently stands.  As I see it, the principle that it is not a proper exercise of the discretion to grant an adjournment on the ground that it is believed that the law may or will be changed in the near or remote future applies to the Tribunal in the exercise of its deliberative function.  It is to apply the relevant law. It is bound in its decision making capacity by the law.

32.     For the reasons herein before set forth I am of opinion that the substantive applications of the Applicants Ms Seale and Ms Healey should proceed to a hearing in the normal course.  The application for adjournments is refused.

33.     Each of the applications is stood over for a directions hearing at 4:15pm on 25 August 2004.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C., Deputy President

Signed: Guy Moloney           .....................................................................................

Associate

Date/s of Hearing  15 June 2004
Date of Decision  30 June 2004
Counsel for the Applicant         Mr Mathew Smith
Solicitor for the Applicant          (1) Ms Judith Buss (2) Mr Ryan Ellis
Counsel for the Respondent     Mr Stephen Lloyd
Solicitor for the Respondent     Ms Angela Nansen