Slater and Repatriation Commission - [2001] AATA 384

DECISION AND REASONS FOR DECISION [2001] AATA 384

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q98/1058

VETERANS' APPEALS DIVISION       )
           Re      JANETTE HELEN SALTER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date9 May 2001
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
VETERANS' AFFAIRS – appropriate Statement of Principles to be applied – whether applicant can waive accrued right – ischaemic heart disease – hypertension – salt ingestion.
Veterans' Entitlements Act 1986
Acts Interpretation Act 1901 ss 50
Administrative Appeals Tribunal Act 1975 ss 39
Repatriation Commission v Keeley (2000) 98 FCR 108
Re Reading and Repatriation Commission [2000] AATA 841
Re Ryan and Repatriation Commission [2000] AATA 849
Re Olsen and Repatriation Commission [2000] AATA 909
Re Brown and Repatriation Commission [2000] AATA 1118

REASONS FOR DECISION

9 May 2001 Deputy President DP Breen, Presidential Member

This is a review of a decision of the Repatriation Commission dated 24 February 1997 to refuse to accept as war-caused the death of John Salter from myocardial infarction and severe atherosclerosis of the coronary arteries. The Veterans' Review Board affirmed that decision on 2 September 1998.
This matter was heard by me in Brisbane on 1 February 2001. Mr A Harding of Counsel represented the applicant, Janette Salter. Mr M Smith, Departmental Advocate, represented the respondent Commission.
Oral evidence was received from the applicant, Janette Helen Salter, Mr Roger Mattiske, a friend of the veteran and Dr RM Goodwin.
The following documents were also taken into evidence.

Exhibit 1 "T" Documents
Exhibit 2 Statement of Janette Helen Salter dated 11.2.99
Exhibit 3 Statement of Roger Errol Mattiske dated 28.4.99
Exhibit 4 Report of Dr RM Goodwin dated 17.11.00
Exhibit 5 Report of Dr Justin Kenardy dated September 2000

The Tribunal was assisted with written submissions from Mr Harding which were received on 15 February and from both Mr J Stoner and Mr M Smith, for the respondent, which were received on 14 March 2001.
Mr Salter served in the Australian Army from 20 October 1952 to 31 May 1974. He had operational service in Vietnam from 3 February 1967 to 1 July 1967. Prior to his service in the Australian Army, Mr Salter had served in the British Army from 6 January 1942 to 21 May 1952.
The veteran suffered from hypertension prior to joining the Australian Army. Whilst serving in Vietnam he was given two salt tablets a day and extra salt was placed in the food to help the soldiers conserve body fluids. In 1971 the Army stopped prescribing salt tablets as research had shown that the extra salt in the food was sufficient. Mr Salter continued to take salt at the increased level, even after he completed his service, by placing extra salt in his food and eating salt directly from the salt shakers.
The questions to be determined by the Tribunal are:
(a) whether the veteran developed a salt habit whilst in the Army; and

(b)whether that salt habit caused his death, through myocardial infarction and severe atherosclerosis of the coronary arteries.

For a death, disease or illness to be considered war-caused, it must satisfy the relevant Statement of Principles (SOP). At the time of the Repatriation Commission's determination, the relevant SOPs in force were No. 83 of 1995 concerning hypertension and No. 140 of 1996 concerning ischaemic heart disease. The current SOPs are No. 25 of 1999 (hypertension) and No. 38 of 1999 (ischaemic heart disease).
The Full Federal Court decision of Repatriation Commission v Keeley (2000) 98 FCR 108 is binding on this Tribunal. The essence of that decision is that an applicant has an accrued right to have their claim for pension determined in accordance with the SOP which was in force at the time of the Repatriation Commission's determination.
This "accrued right" arises as a result of the operation of Section 50 of the Acts Interpretation Act 1901 which states:
"Where an Act confers power to make regulations, the repeal of any regulations which have been made under the Act shall not, unless the contrary intention appears in the Act or regulations effecting the repeal:
(a)affect any right, privilege, obligation or liability acquired, accrued or incurred under any regulations so repealed; or
(b)affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any regulations so repealed; or
(c)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act or regulations had not been passed or made."

SOPs are disallowable instruments and are therefore subject to Section 50.
The applicant contended that as the new SOP with respect to hypertension is more favourable to her claim, no right to determination according to the former SOP has accrued. However, she contended that, if such a right has accrued, the applicant can waive that right and invoke the terms of the later, more favourable SOP.
The important point to note is that Section 50 of the Acts Interpretation Act preserves not only rights and privileges, but also obligations and liabilities. Section 50 is designed to maintain the status quo with respect to the parameters by which a legal dispute is determined in the face of often unfortunate delays in legal and quasi-legal processes. The Section was not designed to specifically benefit either party but to provide certainty and to ensure, effectively, that the "goal posts" are not changed mid-way through the "game" for either party. The applicant's contention that the Section only operates to preserve beneficial rights fails to apprehend the full import of that Section.
As such, the Tribunal prefers the reasoning expressed in Re Reading and Repatriation Commission [2000] AATA 841 and Re Ryan and Repatriation Commission [2000] AATA 849 to that contained in Re Olsen and Repatriation Commission [2000] AATA 909 and Re Brown and Repatriation Commission [2000] AATA 1118.
The applicant's submission that she can waive the accrued right preserved by Section 50 of the Acts Interpretation Act ignores the true nature of the right obtained. Upon lodgement of a pension claim, an applicant obtains not merely the right to have the matter determined, but the right to have the matter determined according to the law in force at the time of the determination by the Repatriation Commission. This "law" includes the relevant SOPs. The applicant cannot only waive part of the right accrued and insist upon the granting of a new right, namely, the choice of law.
It is not unusual for matters to be determined according to a law which was applicable at a previous stage in proceedings, but which has been superseded at the time of the actual hearing. This is as a result of one of the fundamental elements of natural justice, namely, the presumption against retrospectivity. It is considered inherently unfair to determine the rights and obligations of a person or an entity according to a standard of which neither could be aware at the time the original rights and obligations arose.
There is no legal bar to an applicant in this situation from lodging a new claim so that their rights are then determined by the SOPs currently in force. However, in terms of practical effect, the payment of the pension will only be backdated to the date of the new claim which could result in an applicant missing out on back payment for up to a few years. Delays in this type of case are common and usually result from the need to obtain further medical evidence and to find witnesses to events which occurred some 20 to 30 years ago. This is a result of which is a little anomalous given that the Veterans' Entitlements Act1986 is beneficial legislation. It is however, the law and this Tribunal is bound to apply the law as it stands, not to alter it as the Tribunal sees fit.
It is this Tribunal's ruling that whether or not a later SOP is more beneficial, the SOP at the time of the Repatriation Commission's decision is the SOP which this Tribunal is to apply. Therefore, the relevant SOPs in this case are No. 83 of 1995 (hypertension) and No. 140 of 1996 (ischaemic heart disease).
An unusual situation has arisen as a result of this finding, in that, while the respondent urged this finding in their submissions on the law, their submissions as to the merits of the case were only relevant if the Tribunal had made a finding that the later SOPs applied. The Tribunal finds it very unusual that an experienced practitioner in this jurisdiction would fail to submit in the alternative on the merits of the case where there is such a crucial point of law to be decided. However, the Tribunal is of the view that a reasonable opportunity has been given to both parties to make the submissions that they saw fit. Having complied with Section 39 of the Administrative Appeals Tribunal Act 1975, the Tribunal is able to proceed to make a decision based on the material before it.
In this case, to satisfy the SOP for ischaemic heart disease, the applicant must show that service-related hypertension was present prior to the onset of ischaemic heart disease. To show that the hypertension was service-related, the applicant must show that the veteran was ingesting an additional 12 grams per day of salt for a continuous period of at least six months immediately before the accurate determination of hypertension.
The medical evidence is clear that the veteran was suffering from hypertension unrelated to his salt consumption before he began his service in the Australian Army and this persisted throughout his service. The Tribunal accepts the evidence of the applicant and the veteran's friend, Mr Mattiske that the veteran's salt consumption did dramatically increase during his service in Vietnam and that it continued even after he left the Army. The Tribunal is satisfied that the veteran was ingesting the required amount of salt continuously after serving in Vietnam and that this salt habit was as a result of his operational service. However, his hypertension was merely aggravated as a result of the salt ingestion, rather than being caused by it. Given the constraints of the SOP, the applicant cannot establish a link between service and the hypertension and therefore the link with ischaemic heart disease is also unable to be established.
The Tribunal is, however, of the view that the applicant would have a very strong case if a new application were submitted under the current SOP which does take into account the clinical worsening of hypertension as a result of service through salt ingestion. This is something of an unfortunate result made more so by the delay involved in this case. It is, however, the same result that would have occurred had the matter been dealt with speedily, which is exactly the outcome Section 50 of the Acts Interpretation Act was designed to ensure. Neither party can benefit from the protraction of litigation and the early resolution of these matters is to be encouraged.
As a matter of law, the Tribunal is bound to affirm the decision under review.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed:         Emma Oettinger
  Associate
Date/s of Hearing  1.2.01
Written submissions                 14.3.01
Date of Decision  9.5.01
Counsel for the Applicant        Mr A Harding
Solicitor for the Applicant         Messrs Gilshenan and Luton
Solicitor for the Respondent    Mr M Smith, Departmental Advocate