Sloan v Repatriation Commission

Case [2012] FCA 1079

FEDERAL COURT OF AUSTRALIA

Sloan v Repatriation Commission [2012] FCA 1079

Citation: Sloan v Repatriation Commission [2012] FCA 1079
Appeal from: Sloan and Repatriation Commission [2011] AATA 424
Parties: RUPERT CHARLES SLOAN v REPATRIATION COMMISSION
File number: VID 784 of 2011
Judge: BROMBERG J
Date of judgment: 3 October 2012
Catchwords:

DEFENCE AND WAR – defence service – veterans’ entitlements – whether illness suffered by the applicant defence-caused – whether applicant’s injury occurred 25 years before the “clinical onset” of illness – test for “clinical onset” – whether AAT failed to apply the accepted meaning of “clinical onset” – whether AAT disregarded evidence – whether AAT’s approach to determining when “clinical onset” occurred was erroneous because it failed to determine for itself when symptoms or features of illness were in existence. 

ADMINISTRATIVE LAW – appeal of decision of the AAT – whether AAT’s conclusions as to “clinical onset” compromised by error of law – no error of law – appeal denied.

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Veterans’ Entitlements Act 1986 (Cth) ss 70(5)(a), 120(4), 120B
Cases cited: Lees v Repatriation Commission (2002) 125 FCR 331
Kaluza v Repatriation Commission [2010] FCA 1244
Kaluza v Repatriation Commission (2011) 122 ALD 448
Date of hearing: 2 April 2012
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 24
Counsel for the Applicant: Ms A Magee
Solicitor for the Applicant: Williams Winter
Counsel for the Respondent: Ms E James
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 784 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

RUPERT CHARLES SLOAN
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

BROMBERG J

DATE OF ORDER:

3 OCTOBER 2012

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

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


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 784 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

RUPERT CHARLES SLOAN
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

BROMBERG J

DATE:

3 OCTOBER 2012

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. The applicant Rupert Sloan (“Mr Sloan”) served in the Australian Army between 1942 and 1946.  During a training exercise in early 1943, he fell whilst carrying a tripod and a full pack.  Mr Sloan claims that as a result of the fall, he suffered an injury to his lumbar spine (“the injury”) which caused him to suffer lumbar spondylosis (“the illness”). 

  2. Relying upon the illness and the circumstances in which the injury occured, Mr Sloan made an application to the respondent (“the Commission”) for a pension.  That application was denied, as was Mr Sloan’s application for its review made to the Veterans’ Review Board and then later to the Administrative Appeals Tribunal (“the AAT”).

  3. Pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), Mr Sloan appealed…

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Details
AGLC
Sloan v Repatriation Commission [2012] FCA 1079
Case
[2012] FCA 1079
Decision Date

CaseChat Overview and Summary

Sloan brought an appeal against a decision of the Administrative Appeals Tribunal (AAT), which had dismissed his claim for a veteran's entitlement. Sloan contended that his lower back condition, which he claimed was caused by his service in the Royal Australian Air Force during World War II, had reached the clinical onset stage in 1943. The AAT found that the clinical onset of Sloan's condition did not occur until 1968. Sloan argued that the AAT failed to apply the correct legal test for determining the clinical onset of an illness, did not properly consider the evidence, and misconstrued its task in determining the clinical onset of his illness.

The Court considered whether the AAT had adopted the wrong interpretation of the term "clinical onset," whether it failed to consider all evidence, and whether it misconstrued its task in determining when the clinical onset occurred. The Court found that the AAT had not adopted Dr. Markov's interpretation of "clinical onset" as Sloan argued, but rather had relied on the definition set out in previous court decisions. The Court also found that the AAT had considered all relevant evidence and was entitled to weigh the evidence and arrive at its own conclusions. Finally, the Court found that the AAT did not misconstrue its task in determining the clinical onset of Sloan's illness.

The appeal was dismissed, and Sloan was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

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

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

It was contended for Mr Sloan that Dr Markov, who provided a medical report upon which the AAT relied, had adopted an interpretation of the expression “clinical onset” which was inconsistent with that applied by this Court in the judgments to which I have just referred. By ground 1 of its Notice of Appeal, Mr Sloan contended that the AAT had erred by adopting Dr Markov’s interpretation of the expression “clinical onset”. It may be accepted that Dr Markov’s evidence suggests that he had a different understanding of the expression “clinical onset” than that applied by this Court. However, Mr Sloan has not established that the AAT adopted Dr Markov’s interpretation. The reasons given by the AAT for its decision and in particular at paragraphs [6], [7] and [21] show that the AAT determined the date of clinical onset by reference to the interpretation of that expression set out in Lees and in Kaluza.Alleged failure to have regard to evidence By the second ground of his Notice of Appeal, Mr Sloan contended that the AAT erred in failing to have regard, or any proper regard, to the evidence of Mr Grossbard. By his third ground, Mr Sloan contended that the AAT erred in failing to have regard to all of Dr Markov’s evidence and in particular the evidence given by him in cross-examination. A summary of the evidence given by Mr Grossbard and Dr Markov is set out in the decision. The fact that the summary does not identify every point made in evidence and every proposition acceded to in cross-examination does not necessarily suggest that the AAT did not have regard to all of the evidence given. The AAT’s reasons suggest that it did consider the medical evidence before it. Mr Sloan’s complaint seems to have more to do with a contention that the AAT did not give sufficient weight to particular evidence which might have assisted his claim. The AAT is entitled to weigh the evidence and arrive at its own conclusions, without making an error of law. By his fourth ground of appeal, Mr Sloan contended that the AAT failed to have regard to his unchallenged evidence that he suffered ongoing symptoms from the date of the injury in 1943. The fifth ground raises the same issue. The reasons of the AAT and in particular at [9] indicate that the AAT did have regard to evidence given by Mr Sloan that he had periodically experienced back pain since the injury. However, as I set out in more detail later, there was documentary evidence before the AAT which was inconsistent with the evidence given by Mr Sloan. As I later explain, the AAT preferred the evidence of contemporaneous medical records to that given by Mr Sloan and thus impliedly rejected Mr Sloan’s evidence. The AAT did not fail to take into account Mr Sloan’s evidence. No error of law is demonstrated in the AAT’s implied rejection of Mr Sloan’s evidence.Did the Tribunal misconstrue its task in determining when “clinical onset” occurred? Both grounds eight and nine of the Notice of Appeal raise the same ground, namely that the concept of clinical onset applied by the AAT was inconsistent with the relevant SoP. However, during the appeal Mr Sloan essentially contended that the AAT misconstrued its task in determining when clinical onset occurred.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Nine grounds of appeal were raised by Mr Sloan’s Notice of Appeal. Grounds six and seven were not pressed on the appeal. For the reasons that follow, none of the grounds of appeal relied upon by Mr Sloan demonstrate an error of law in the AAT’s conclusion as to when clinical onset of Mr Sloan’s illness occurred. CONSIDERATIONDid the AAT adopt the wrong interpretation of “clinical onset”? In its reasons for decision, the AAT noted that the expression “clinical onset” had been the subject of two decisions of this Court including of a Full Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331. The AAT set out an extract from [13] of the reasons for judgment in that case. The AAT also set out the following extract from the judgment of Jacobson J in Kaluza v Repatriation Commission [2010] FCA 1244:92.The meaning of the expression “clinical onset” was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is a clinical onset of a disease, either:• when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or •when a finding is made on investigation which is indicative to a doctor that the disease is present.93.The definition therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment. It was contended for Mr Sloan that Dr Markov, who provided a medical report upon which the AAT relied, had adopted an interpretation of the expression “clinical onset” which was inconsistent with that applied by this Court in the judgments to which I have just referred. By ground 1 of its Notice of Appeal, Mr Sloan contended that the AAT had erred by adopting Dr Markov’s interpretation of the expression “clinical onset”. It may be accepted that Dr Markov’s evidence suggests that he had a different understanding of the expression “clinical onset” than that applied by this Court. However, Mr Sloan has not established that the AAT adopted Dr Markov’s interpretation. The reasons given by the AAT for its decision and in particular at paragraphs [6], [7] and [21] show that the AAT determined the date of clinical onset by reference to the interpretation of that expression set out in Lees and in Kaluza.Alleged failure to have regard to evidence By the second ground of his Notice of Appeal, Mr Sloan contended that the AAT erred in failing to have regard, or any proper regard, to the evidence of Mr Grossbard. By his third ground, Mr Sloan contended that the AAT erred in failing to have regard to all of Dr Markov’s evidence and in particular the evidence given by him in cross-examination. A summary of the evidence given by Mr Grossbard and Dr Markov is set out in the decision. The fact that the summary does not identify every point made in evidence and every proposition acceded to in cross-examination does not necessarily suggest that the AAT did not have regard to all of the evidence given. The AAT’s reasons suggest that it did consider the medical evidence before it. Mr Sloan’s complaint seems to have more to do with a contention that the AAT did not give sufficient weight to particular evidence which might have assisted his claim. The AAT is entitled to weigh the evidence and arrive at its own conclusions, without making an error of law.