Symons v Repatriation Commission

Case [2001] FCA 534

FEDERAL COURT OF AUSTRALIA

Symons v Repatriation Commission [2001] FCA 534

DEFENCE AND WAR – Ex-servicemen – veterans’ entitlements – application for pension in respect of cervical spondylosis – applicable statement of principles – whether applicable statement of principles one in force at time of Commission’s decision refusing pension or at time of decision of Administrative Appeals Tribunal or at any time between those two times at which a statement of principles more favourable to veteran was in force

Repatriation Commission v Keeley (2000) 98 FCR 108 discussed
Gorton v Repatriation Commission [2001] FCA 286 discussed

PETER SYMONS v REPATRIATION COMMISSION

N 1381 OF 2000

LINDGREN J

9 MAY 2001

SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1381 OF 2000

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MRS M T LEWIS (SENIOR MEMBER) AND DR P D LYNCH (MEMBER)

BETWEEN:

PETER SYMONS
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

LINDGREN J

DATE OF ORDER:

9 MAY 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1381 OF 2000

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MRS M T LEWIS (SENIOR MEMBER) AND DR P D LYNCH (MEMBER)

BETWEEN:

PETER SYMONS
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

LINDGREN J

DATE:

9 MAY 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

  1. The applicant (“Mr Symons”) appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from a decision of the Administrative Appeals Tribunal (“the Tribunal”) given on 28 November 2000. By that decision the Tribunal affirmed two decisions of the respondent (“the Commission”) refusing to grant Mr Symons a pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The first decision was one given on 11 June 1996 by which the Commission refused a claim made by Mr Symons on or about 5 September 1995 of Cervical Spondylosis. The second decision was one given on 17 April 1997 by which the Commission refused a claim made by Mr Symons on or about 27 March 1997 of Post Traumatic Stress Disorder (“PTSD”).

  2. On 11 April 1997, Mr Symons lodged with the Veterans’ Review Board (“the Board”) an application for review of the first decision.  On 28 April 1997 he lodged with the Board an application for review of the second decision.

  3. On 21 October 1997 the Board affirmed both decisions and Mr Symons was advised accordingly on 3 November 1997.  On 3 February 1998 he lodged with the Tribunal his application for review of both decisions.

    BACKGROUND FACTS

  4. Mr Symons was born on 31 December 1953.  He served in the Royal Australian Navy from 14 July 1969 to 13 March 1991.  This included a period of “operational service” (in Vietnam)…

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AGLC
Symons v Repatriation Commission [2001] FCA 534
Case
[2001] FCA 534
Decision Date

CaseChat Overview and Summary

The case of Symons v Repatriation Commission involved Mr Symons, a former member of the Royal Australian Navy, who sought a review of decisions made by the Board and the Tribunal regarding his claim for compensation for cervical spondylosis, which he attributed to incidents during his service in Vietnam. The primary legal issues before the court were whether the Tribunal erred in its interpretation of the applicable instruments and whether it imposed an onus of proof on Mr Symons contrary to the statutory provisions. The court was also tasked with determining whether the Tribunal's reasoning was logically sound and whether it correctly applied the relevant legal principles.

The court found that the Tribunal did not err in its interpretation of the instruments and did not impose an onus of proof on Mr Symons. The court noted that the Tribunal's use of the phrases "not reasonably satisfied" and "cannot be reasonably satisfied" was descriptive of its state of mind regarding the evidence presented and did not reflect an erroneous imposition of an onus of proof. Furthermore, the court held that the Tribunal's reasoning, though potentially illogical, was not legally erroneous as long as the inferences drawn were reasonably open based on the evidence. The court also rejected the argument that the Tribunal had to apply the more favourable Instrument No 162 of 1996, which was in effect at the time of the Tribunal's decision.

Consequently, the court dismissed the appeal and ordered that the applicant pay the respondent's costs. The decision underscored the importance of correctly interpreting statutory provisions and applying legal principles in administrative decision-making processes. The court's ruling clarified the appropriate application of instruments and the Tribunal's obligations under the Act, affirming that the Tribunal's decision was legally sound and based on a reasonable evaluation of the evidence.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs.

Background

Background to the litigation

On 21 October 1997 the Board affirmed both decisions and Mr Symons was advised accordingly on 3 November 1997. On 3 February 1998 he lodged with the Tribunal his application for review of both decisions.BACKGROUND FACTS Mr Symons was born on 31 December 1953. He served in the Royal Australian Navy from 14 July 1969 to 13 March 1991. This included a period of “operational service” (in Vietnam) from 21 October 1970 to 12 November 1970, when Mr Symons was stationed on HMAS Sydney, and a period of “defence service” from 7 December 1972 to 13 March 1991, for the purposes of the definitions of those expressions in the Act. (In fact Mr Symons also served in the Navy in the intervening period between 12 November 1970 and 7 December 1972, but counsel informed me that it was only from the latter date that the Act covered his service as “defence service”.) Mr Symons claimed that his cervical spondylosis was war-caused on the basis that it was attributable to one or more of several falls he had during the period of his eligible defence service, which, according to his claim, caused trauma to his cervical spine, which, in turn, gave rise to the spondylosis. At the date of the determination of his claim by the Commission, there was in force a Statement of Principles as amended by two later Statements of Principles, relating to “Cervical Spondylosis”, in each case determined by the Repatriation Medical Authority under subs 196B(3) of the Act. The original Statement of Principles was Instrument No 102 of 1995 dated 8 March 1995, the first Amendment of Statement of Principles was Instrument No 331 of 1995 dated 29 August 1995 and the second Amendment of Statement of Principles was Instrument No 355 of 1995 dated 3 October 1995. After the Commission’s decision, Instrument No 102 of 1995 and its two amending Instruments were revoked and replaced by Instrument No 162 of 1996 dated 9 December 1996. This Instrument pre-dated both the Board’s decision (on 21 October 1997) and the lodging of the application for review with the Tribunal (on 3 February 1998) (and therefore also the Tribunal’s decision itself on 28 November 2000). The definition of “trauma to the cervical spine” differed as between Instrument No 102 of 1995 as amended and Instrument No 162 of 1996. In particular, whereas the definition in the former required “acute symptoms and signs” to “last for a period of at least ten days immediately after the injury occurr[ed], unless medical intervention ha[d] occurred”, the definition in the latter laid down a lesser period of “at least one week” and was therefore, in its terms, in this respect more favourable to Mr Symons. But two instruments subsequent to the lodgment (on 3 February 1998) of the application for review with the Tribunal, but prior to the decision of the Tribunal (on 28 November 2000), namely, Instruments Nos 57 of 1998 and 32 of 1999, amended Instrument No 162 of 1996 by again requiring that the symptoms subsist for at least ten days. I will have occasion later to discuss Mr Symons’ contention that the Tribunal erred by failing to apply the more favourable Instrument No 162 of 1996.

Evidence

Evidence Before The Court

I have found nothing in the authorities referred to by counsel for Mr Symons to suggest that the Tribunal erred in law in any of the respects identified in the second ground of appeal. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ stated (at 356):“Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.”This passage is concerned with the drawing of inferences and is not relevant to non-acceptance of a witness’s testimony. Federal Commissioner of Taxation v McCabe (1990) 21 ALD 740 was also concerned with the making of findings of fact and the drawing of inferences. In Norton v Comcare [2000] FCA 1068, Drummond J acknowledged that if the reasons given by a decision-maker show that the decision has been arrived at “in a manner devoid of plausible justification, it will be reviewable for Wednesbury unreasonableness” (at [20]). That is not this case. I note, in passing, that his Honour said of the testimony of the applicant’s wife in that case (at [38]):“The Tribunal considered her partisan. It only accepted so much of her evidence as told against her husband’s case. It was entitled to do this. It was for the Tribunal to evaluate the reliability of her evidence.” (my emphasis) For the above reasons the present ground of appeal is not made out.Ground 3 (par 4.2(c) of amended grounds of appeal) – whether the Tribunal required Mr Symons to discharge an onus of proof In pars 84 to 86 of its Reasons for Decision (set out at [32]), the Tribunal used the expression “is not reasonably satisfied” twice and the expression “cannot be reasonably satisfied” once. Mr Symons submits that the use of those expressions shows that the Tribunal was requiring him to discharge an onus of proof. While subs 120(4) of the Act provides that the Commission must decide “to its reasonable satisfaction”, subs 120(6) provides that this requirement is not to be taken to impose on a claimant or applicant for a pension or increased pension, “any onus of proving any matter that is, or might be, relevant to the determination of the claim or application”. Mr Symons submits that: “the words used in pars 84 to 86 do not permit the conclusion that the Tribunal found to its reasonable satisfaction that the incidents described did not in fact occur, or did not occur in terms consistent with the relevant definition in the cervical spondylosis instrument”. I accept, however, the Commission’s submission that Mr Symons’ submission lacks substance. The Tribunal’s use of the expressions “not reasonably satisfied” and “cannot be reasonably satisfied” do not indicate, to my mind, that the Tribunal treated Mr Symons as bearing an onus of proof. Rather, the expressions are simply descriptive of the Tribunal’s state of mind in relation to the evidence before it. I adopt the following passage from the Reasons for Judgment of Weinberg J in Mason v Repatriation Commission [2000] FCA 1409 (at [83]) as reflecting my view in relation to the present case, even though the Tribunal here did not deliver “only oral reasons”:“I am of the opinion that the AAT was well aware of its obligations under the legislation, and that it correctly followed the decision-making process set out in s 120 of the VE Act. The AAT was entitled to arrive at its decision, and I do not believe that it did so via an erroneous method. It must be remembered that the AAT delivered only oral reasons. This may go some way to explaining its use of the language of “satisfaction”. That language may, in some cases, reflect error. It may demonstrate that an administrative body has impermissibly had recourse to the concept of an onus of proof. I am of the view, however, that no such error occurred in this case.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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