Thomas v Repatriation Commission

Case [2003] FCAFC 122

FEDERAL COURT OF AUSTRALIA

Thomas v Repatriation Commission [2003] FCAFC 122

VETERAN AFFAIRS – veteran’s entitlements – relevant Statement of Principles – whether disease war-caused – whether reasonable hypothesis connecting disease with circumstances of service

Veterans’ Entitlements Act 1986 (Cth) ss 9, 13, 120, 120(A)
Federal Court of Australia Act ss 4, 24

Repatriation Commission v Gorton (2001) 110 FCR 321, [2001] FCA 1194 followed

Repatriation Commission v Keeley (2000) 98 FCR 108 followed

Minister for Immigration & Multicultural & Indigenous Affairs v Sochorova [2002] FCAFC 365 referred to

Driclad Pty Ltd v Commissioner of Taxation (Cth) (1998) 121 CLR 45 at 64 cited

Landsdal v REI Building Society (1993) 41 FCR 421 cited

JACK WILLIAM THOMAS v REPATRIATION COMMISSION

D20 OF 2002

HEEREY, WHITLAM AND MARSHALL JJ
DARWIN
30 MAY 2003

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

D20 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

BETWEEN:

JACK WILLIAM THOMAS
APPELLANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGES:

HEEREY, WHITLAM AND MARSHALL JJ

DATE OF ORDER:

30 MAY 2003

WHERE MADE:

DARWIN

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

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

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

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

D20 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

BETWEEN:

JACK WILLIAM THOMAS
APPELLANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGES:

HEEREY, WHITLAM AND MARSHALL JJ

DATE:

30 MAY 2003

PLACE:

DARWIN

REASONS FOR JUDGMENT

THE COURT

  1. This appeal raises for determination the question whether a Statement of Principles (“SoP”), which was in force at the time of a decision of the Administrative Appeals Tribunal (“the AAT”), is applicable on review of a decision of the respondent concerning whether the appellant's medical condition was war-caused.

    Background

  2. The appellant, Mr Thomas, applied to the respondent for an invalidity pension based on his malignant neoplasm of the prostate (“the condition”). Mr Thomas alleged that the condition was “war-caused” under the Veterans’ Entitlements Act 1986 (Cth) ("the Act").

  3. Mr Thomas engaged in “eligible war service” during World War 2 from 23 October 1939 until 12 October 1945.

  4. The provisions of the Act discussed below are those material to the claim of Mr Thomas for a pension.

  5. A pension is payable under the Act to a veteran who is incapacitated due to a war-caused disease; s 13. Under s 9 a disease is taken to be war-caused if it arose out of or was attributable to war service.

  6. Under s120(1) of the Act the respondent is obliged to determine that the disease was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

  7. Under s120(3) of the Act the respondent is obliged to be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease was war-caused if, after consideration of the material before it, the…

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Thomas v Repatriation Commission [2003] FCAFC 122
Case
[2003] FCAFC 122
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CaseChat Overview and Summary

In Thomas v Repatriation Commission, the court was asked to determine whether a Statement of Principles (SoP) that was in force at the time of the Administrative Appeals Tribunal's (AAT) decision was applicable in the review of the Repatriation Commission's decision regarding whether the appellant's medical condition was war-caused. The appellant, Mr Thomas, applied for an invalidity pension based on his malignant neoplasm of the prostate, alleging that the condition was war-caused under the Veterans' Entitlements Act 1986. The primary judge concluded that the AAT should have addressed the SoP which applied at the time of its decision, rather than the SoP that applied at the time of the Commission's decision to refuse Mr Thomas a pension.

The legal issues before the court were whether the AAT should have applied the SoP in force at the time of its decision, and whether the primary judge correctly interpreted the relevant case law on the application of SoPs. The Full Court in Repatriation Commission v Gorton and Repatriation Commission v Keeley established that the AAT should consider the SoP in place at the time of its decision and, if there was no entitlement under that SoP, then consider the SoP in force at the time of the respondent's decision to see if there was "an accrued right" preserved under that SoP.

The court found that the primary judge correctly applied the case law and that the AAT should have applied the SoP in force at the time of its decision. The court rejected the appellant's argument that applying the incorrect SoP made no practical difference and held that it was an error of law to apply the incorrect SoP. The court found that no ground of appeal challenged the primary judge's assessment that the AAT should have considered the SoP in existence at the time of its decision.

In conclusion, the appeal was dismissed with costs. The court held that the AAT should have applied the SoP in force at the time of its decision, and that the primary judge correctly interpreted the relevant case law. The court rejected the appellant's argument that applying the incorrect SoP made no practical difference and held that it was an error of law to apply the incorrect SoP.

Orders

Orders of the court

1. The appeal be dismissed.

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

Background

Background to the litigation

This appeal raises for determination the question whether a Statement of Principles (“SoP”), which was in force at the time of a decision of the Administrative Appeals Tribunal (“the AAT”), is applicable on review of a decision of the respondent concerning whether the appellant's medical condition was war-caused.Background The appellant, Mr Thomas, applied to the respondent for an invalidity pension based on his malignant neoplasm of the prostate (“the condition”). Mr Thomas alleged that the condition was “war-caused” under the Veterans’ Entitlements Act 1986 (Cth) ("the Act"). Mr Thomas engaged in “eligible war service” during World War 2 from 23 October 1939 until 12 October 1945. The provisions of the Act discussed below are those material to the claim of Mr Thomas for a pension. A pension is payable under the Act to a veteran who is incapacitated due to a war-caused disease; s 13. Under s 9 a disease is taken to be war-caused if it arose out of or was attributable to war service. Under s120(1) of the Act the respondent is obliged to determine that the disease was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Under s120(3) of the Act the respondent is obliged to be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease was war-caused if, after consideration of the material before it, the respondent is of the opinion that that material does not raise a reasonable hypothesis connecting the disease with the war-service of the veteran. Under s120A of the Act, for the purposes of s120(3), a hypothesis connecting a disease with war-service is reasonable only if there is an SoP that upholds that hypothesis.Which SoP? The AAT determined Mr Thomas’ application on the basis of the SoP which applied at the date of the respondent’s decision to refuse Mr Thomas a pension, that is, 11 November 1996. The Veterans Review Board (“the Board”), on 7 August 1997, affirmed the decision of the respondent. The AAT made its decision on 2 May 2002. The primary judge held that the AAT should have addressed the SoP which applied at the time of its decision. The relevant SoP was one which was made in 1999. It superseded an SoP which was made in 1995 and varied in 1996. The AAT applied the 1995 SoP as varied. His Honour applied the judgment of the Full Court in Repatriation Commission v Gorton (2001) 110 FCR 321, [2001] FCA 1194. Gorton stands for the following approach:“(1)The AAT should first consider the SoP in place at the time of its decision.(2)If there was no entitlement under that SoP it should then consider the SoP which was in force at the time of the respondent’s decision to see if there was “an accrued right” which was preserved under that SoP.” The primary judge observed that the judgment of the Full Court in Repatriation Commission v Keeley (2000) 98 FCR 108, [2000] FCA 532 was to the same effect as Gorton.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HEEREY, WHITLAM AND MARSHALL JJ
The fourth and fifth grounds of appeal relate to observations made by the primary judge about aspects of the state of the evidence before the AAT which touched on the second ground of respondent’s appeal to the primary judge; see at [21] of his Honour’s reasons. The primary judge dealt with the issue at [38] and [39]. However, the primary judge did observe at [38] that the issue was “largely a moot point” because of his conclusion on the first ground of appeal. It will be for the AAT on remittal to consider what his Honour said at [38] to [39] but it will be up to it to decide any relevant question of construction of an SoP on the evidence before it. The fourth and fifth grounds of appeal are also not made out. The only other ground of appeal was abandoned at the hearing.Conclusion For the foregoing reasons the appeal will be dismissed, with costs.

Ratio Decidendi

Legal Principle Established

Established by: HEEREY, WHITLAM AND MARSHALL JJ

His Honour the made the following points:(i)The respondent considered the claim by reference to the 1995 SoP and was unable to accept that the condition was war-caused.(ii)The Board considered the claim by reference to the 1995 SoP as amended by the 1996 SoP, but evidence relevant to the claim was not presented to the Board.(iii)There is an accrued right to have the Board or the AAT determine the claim by reference to the SoP in force at the time of the respondent’s decision, if at the time of consideration before the Board or the AAT there is a new SoP which overtakes the one which was applicable at the time of the respondent’s decision.(iv)There is no accrued right before the AAT to have the claim determined by reference to the SoP in force at the time of the Board’s decision where the then current SoP has replaced one in force at the time of the respondent’s decision.Consideration of Appeal Grounds No ground of appeal challenges his Honour’s assessment that the AAT should have considered the claim by reference to the SoP in existence at the time of its decision. However, the appellant’s written submission, under the second ground of appeal discussed at [21] to [24] below, asserted that the AAT was correct to apply the earlier SoP. That submission was confirmed orally by counsel for Mr Thomas. We reject it. We consider that Gorton and Keeley dictate that the AAT should have considered the SoP which applied at the date of its decision. No challenge was made to the correctness of either of those Full Court judgments. Although counsel for the appellant ultimately submitted that if the wrong SoP was applied it made no practical difference, it submitted it is nonetheless an error of law to apply the incorrect SoP. The first ground of appeal took issue with the primary judge’s statement of the test to be determined to see if an SoP was satisfied. At [11] to [13] of his judgment the primary judge said that:“11The Full Court in Deledio indicated there is a four step process involved in addressing a claim such as the present. The Tribunal must first consider whether all the material pointed to a hypothesis connecting the condition with the circumstances of Mr Thomas’s war service. If no such hypotheses arose, the application was to be dismissed. Once such a hypotheses did arise, the Tribunal had to determine whether there was a Statement of Principles in force applicable to the condition. Thirdly, if there was a Statement of Principles then in force it had to form the opinion whether the hypothesis raised is a reasonable one. As there described at 97:“It will do so if the hypotheses fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service. If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.”12The reasons why Statements of Principle determined by the Repatriation Medical Authority have that significance is explained in the reasons for judgment of Allsop J (with whom Emmett J agreed) in Repatriation Commission v Gorton (2001) 110 FCR 321, [2001] FCA 1194 at 335, [58]-[59] (Gorton). Finally, the Tribunal must decide under s120(1) whether it is satisfied beyond reasonable doubt that the condition is not war-caused. If it is not so satisfied, the claim must succeed. If it is so satisfied, the claim must fail.13In practical terms, as counsel for the Commission contended, in the present matter the issues could be reduced to two questions:(a)did the material before the Tribunal raise or point to a hypothesis connecting the condition with the service of Mr Thomas that was consistent with the relevant Statement of Principles, and(b)was the Tribunal satisfied beyond reasonable doubt that the foundation for any hypothesis connecting the condition with the war service of Mr Thomas was displaced.”