Spencer and Repatriation Commission
[2001] AATA 959
•4 October 2001
DECISION AND REASONS FOR DECISION [2001] AATA 959
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/87
VETERANS' APPEALS DIVISION )
Re GEORGE GORDON SPENCER
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen; Dr M E C Thorpe, Member; Ms N Bell, Member
Date4 October 2001
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/87
)
VETERANS' APPEALS DIVISION )Re: GEORGE GORDON SPENCER
ApplicantAnd: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen;
Dr M E C Thorpe, Member;
Ms N Bell, Member
Date 4 October 2001
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.
(Sgd) M.D. ALLEN
.............................
Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS: Claim for cerebrovascular disease. Applicant claimed cerebrovascular disease caused or contributed to by hypertension. At time of original decision no SoP regarding cerebrovascular disease in force but SoP for hypertension existed. Applicant had to meet SoP for hypertension.
Veterans' Entitlements Act 1986 – s120(3), s120A
Repatriation Commission v Thompson (2001) FCR 235
REASONS FOR DECISION
Senior Member M D Allen;
Dr M E C Thorpe, Member;
Ms N Bell, Member
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Dr M E C Thorpe, Member
Ms N Bell, Member
Signed: ...........................(Kwai-Ling Wong)………………….
Associate
Date of Hearing 4 October 2001
Date of Decision 4 October 2001Representative for Applicant Mrs J Buss, Legal Aid Commission
Advocate for Respondent Mr P Godwin, Department of Veterans' AffairsDRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N1999/87
By Senior Member M.D. ALLEN;
Dr M.E.C. Thorpe, Member;
Ms N P Bell, Member
SPENCER and REPATRIATION COMMISSION
SYDNEY, 4 OCTOBER 2001MR ALLEN: In this matter, pursuant to an application lodged with the Tribunal on 20 January 1999, the applicant sought review of the decision by the Repatriation Commission as affirmed by the Veterans Review Board, that his claim for the condition diagnosed and entitled cerebrovascular disease was war caused. The initial decision by the Repatriation Commission's delegate was on 13 April 1995.
Although the condition is referred to as cerebrovascular disease, we were informed by the advocate for the applicant, that the claim was for stroke, which no doubt translates as cerebrovascular accident. It seems to us that nothing turns on that. Indeed there is no doubt that it was cerebrovascular disease that led to the cerebrovascular accident. The hypothesis contended for by the applicant is that his war caused anxiety state caused hypertension and that hypertension was a contributing cause to the cerebrovascular accident that he suffered in 1995.
At the time of the Repatriation Commission's initial decision in this matter, no statement of principle was in existence regarding cerebrovascular accident. The applicant's initial claim was lodged on 13 March 1995. Consequently, pursuant to section 120A of the Veterans Entitlements Act 1986, if a so called statement of principle was in existence at the time the Commission made its original decision that statement of principle has to be applied by both the Commission and by this Tribunal on review.
The Full Court of the Federal Court in Repatriation Commission v Keeley 108 FCR, determined that the statement of principle applicable is that which was in existence at the time the Commission made its original decision. That particular case has been modified by the later case of Repatriation Commission v Gorton 2001 FCA 1194. Another Full Court of the Federal Court in Repatriation Commission v Thompson 2001 FCA 341, determined that if at the time the Repatriation Commission made its original decision, no statement of principle had issued regarding an injury or disease, then this Tribunal had to approach the matter on the hypothesis standard as determined by subsection 3 of section 120 of the Veterans Entitlements Act, and as if the matter were to be determined prior to
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the amendments effected by section 120A.
In this matter at the time of the original decision, namely 13 April 1995, there was no statement of principle in existence relating to cerebrovascular disease or cerebrovascular accident. It was therefore argued by the applicant, that although a later instrument has issued, being a statement of principle regarding cerebrovascular disease, that statement of principle is not applicable here. With that submission we agree, so much was made clear by the case of Repatriation Commission v Thompson Supra.
However, at the time of the original decision, there was in existence a statement of principle regarding hypertension. It has been argued by the respondent that this Tribunal must apply the statement of principle regarding hypertension as it is a sub-hypothesis. In other words as the applicant's claim is that his anxiety state led to hypertension, which in turn contributed to the cerebrovascular disease, cerebrovascular accident, then the statement of principle regarding hypertension must be applied. That the sub-hypothesis must be met is clear from the decision of the Full Federal Court in McKenna v Repatriation Commission 1986 144 FCR.
As was said by the court at page 151:
Since the authority had determined statements of principle in respect of the kind of disease suffered by Mr McKenna, section 120A(4)(b), the next step which the Tribunal was required to take was to form an opinion whether the hypotheses pointed to by the material before the Tribunal were reasonable. It was only entitled to form the opinion that they were reasonable if they were upheld by, in the sense of consistent with, the relevant statements of principle. In our view for either of the hypotheses to be upheld by a statement of principle as required by section 120A(3) of the Act, each of its sub-hypotheses would have to be so upheld.
There then follows a passage which although there is no head hypotheses in this matter, there being a sub-hypothesis, is particularly pertinent. The court said:
A complex hypotheses, that is one comprising more than one element or part can be no stronger than each of its elements or parts.
We would also refer to the comment in the judgment of Allsop J in Repatriation v Gorton Supra at paragraph 63, where his Honour said:
Under section 175 of the Act and section 43 of the AAT Act, the Tribunal is to review the relevant decision. The decision which is
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the subject of review is the determination under section 19 of the Act
of a claim under section 14 of the Act, based on entitled set out in section 13 of the Act. It is not a review of a decision about a statement of principle. It is a review of a decision about an entitlement to a pension based on a causal connection between death or incapacity and service. There is no reason why that ultimate causal question may not be influenced or affected by more than one statement of principle.
It was submitted for the applicant that McKenna was distinguishable as each of the sub-hypotheses in that case had applicable statement of principle. However, as we see it, the rationale underlying the decision results in a finding that although a so-called head hypothesis has no statement of principle, intermediate hypotheses where a statement of principle exists, must conform with the said statements of principle.
The applicant referred to the later decision of the Full Federal Court in Repatriation Commission and Thompson Supra. That case concerned a situation where there was no statement of principle in existence at the time of the original decision, but whether there were sub-hypotheses or not was not in its terms discussed by the Full Federal Court. However, there are passages in the respective judgments which to our mind lead to the conclusion that sub-hypotheses must conform with statements of principle if they exist.
In the particular case Whitlam J dissented, and at paragraph 28 of his judgment said:
In my opinion section 120A(3) of the Act applied in this case. Accordingly the Tribunal did not err in the statement of principle in force at the time of its decision in respect of the relevant kind of disease.
With respect to his Honour as he was in dissent in that case, that passage perhaps can be put to one side, but it does indicate a possible view. Emmett J with whom Drummond J agreed, said however at paragraph 58 of his judgment - after referring to the explanatory memoranda at the time the amendments which introduced section 120A into the Act were before the Parliament - as follows:
Those observations are of marginal assistance in resolution of the question before the court. However, they do suggest an intention on the part of Parliament to ensure that all claims made after 31 May 1994 will be determined in accordance with statements of principle where such statements of principles exist. That intention is evidenced in the language of section 120A itself.
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We would only interpose to say that it seemed to apply to sub-hypotheses as much as to hypotheses.
His Honour then continued at paragraph 67 in his judgment:
The reasoning of the Full Court in Keeley's case is that there is a vested right to have the original decision reviewed on the basis of the state of affairs concerning statements of principles at the time when the original decision was made. It was submitted for applicant that the terms of sub-sections 120A 3 and 4 combined with sections 8 and 14 of the Veterans Entitlement Act 1986 had the result that if at the time of the original decision by the Repatriation Commission no statement of principle existed as to the "disease", then Thompson Supra required that the disease be considered as an entity and intermediate statements of principles did not apply. For the reasons given above, we reject the submission.
In support of her submissions, Mrs Buss for the applicant, referred to the Tribunal decision in the matter of re McCarthy v Repatriation Commission 2000 AAT 897. Two comments can be made about that matter.
1. It is not a decision that binds this Tribunal, particularly as the Senior Member in the matter was not legally qualified.
2. The case concerned a death claim. In fact a suicide, and death claims involve different emphasis of proof to claims by living veterans for injuries and diseases.
This aspect discussed by the Full Federal Court in Repatriation Commission v Cook 90 FCR 307 at 312(c). There the court said:
Mr Christie suggested that there would be anomalies. He gave some examples. One was that a veteran might make a claim for a depressive disorder which was disputed, if before the hearing of that dispute, the veteran were found dead in circumstances where suicide was an open question, there would be a separate standard of proof to be applied to the veteran's claim from that which would be applied to the widow's claim. The Commission or the Tribunal would make its decision as to whether a depressive disorder existed to its reasonable satisfaction, but the question whether a depressive order (sic) existed to meet the hypothesis of death by suicide as a result of the depressive disorder as a result of war service, would be governed by a combination of sections 120(3) and (1).
In our view there are two answers to those contentions. First the language of subsections 120(1) and (3) is so clear as not to raise any doubt on the point. Secondly, any suggested illogicality
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disappears when one focuses on the task in hand. In the example
given above, the task at hand when deciding the incapacity claim, is initially whether there is or was a disease. The evidence is far more readily available on that issue in the main medical evidence one would suppose, than matters of war causation which involve assessment of events which may have taken place as long ago as half a century. It makes very good sense, in our opinion, to apply subsection 120(4) of the Act requires a civil standard of proof to the former question and the more liberal reverse criminal standard of proof to the latter question.
It seems to us that if at the time the original decision was made, there was a statement of principle with regard to a sub-hypothesis, then consistent with McKenna's case Supra, that sub-hypothesis must conform with the statement of principles applicable to it. The effect therefore in this matter is that if the applicant cannot bring himself within the statement of principles with regard to hypertension, then there will be no reasonable hypothesis connecting his cerebrovascular accident with the circumstances of his service.
We understand the applicant's advocate to agree that if the Tribunal applies the statement of principle re hypertension, then the applicant's claim cannot succeed. In our opinion, that concession is properly made and it would be both futile and a waste of public monies to require the calling of further evidence in this matter. For the reasons outlined above, we affirm the decision under Review.
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