Tunks v Repatriation Commission

Case [2008] FCA 521

FEDERAL COURT OF AUSTRALIA

Tunks v Repatriation Commission [2008] FCA 521

DEFENCE AND WAR – veterans – entitlements – general provisions regarding entitlements – reasonable hypothesis test – Deledio steps – whether Tribunal engaged in impermissible fact finding in application of s 120(3) of Veterans’ Entitlements Act 1986 (Cth)

DEFENCE AND WAR – veterans – entitlements – general provisions regarding entitlements – reasonable hypothesis test – Deledio steps– whether Tribunal used correct test in application of s 120(1) of Veterans’ Entitlements Act 1986 (Cth)

Held:

(1)Tribunal erred in law in application of s 120(3) by concluding that there was “no evidence” going to dietary habits of deceased veteran;

(2)Tribunal could not reach level of satisfaction required by s 120 where there was only no evidence or no sufficient evidence that disease was war-caused

Administrative Appeals Tribunal Act s 44
Veterans’ Entitlements Act 1986 (Cth) s 120 and s 120A

Borrett v Repatriation Commission [2000] FCA 1829 approved
Bull v Repatriation Commission (2001) 188 ALR 756 cited
Bushell v Repatriation Commission (1992) 175 CLR 408 cited

Byrne v Repatriation Commission [2007] FCAFC 126 cited
Byrnes v Repatriation Commission (1993) 177 CLR 564 applied
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 cited
Dixon v Repatriation Commission (1999) 29 AAR 235 approved
East v Repatriation Commission (1987) 16 FCR 517 cited
Gardiner v Repatriation Commission [2007] FCA 1290 cited
Gleeson v Repatriation Commission (1994) 34 ALD 505 cited
Hall v Repatriation Commission [2007] FCA 2021 approved
Repatriation Commission v Bey (1997) 79 FCR 364 cited
Repatriation Commission v Deledio (1998) 83 FCR 82 applied/discussed
Repatriation Commission v Dunn (2006) 94 ALD 97 cited
Roncevich v Repatriation Commission (2005) 222 CLR 115 cited

VERONICA TUNKS v REPATRIATION COMMISSION
NSD 1262 OF 2007

MADGWICK J
18 APRIL 2008
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1262 OF 2007
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER M D ALLEN AND DR S TOH, MEMBER

BETWEEN:

VERONICA TUNKS
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

MADGWICK J

DATE OF ORDER:

18 APRIL 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The decision of the Administrative Appeals Tribunal be set aside and the matter be remitted to the Tribunal to be heard and determined according to law.

2.The respondent is to pay the costs of the applicant.

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

NSD 1262 OF 2007
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER M D ALLEN AND DR S TOH, MEMBER

BETWEEN:

VERONICA TUNKS
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

MADGWICK J

DATE:

18 APRIL 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR

  1. This is an “appeal” on a question of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), from a decision of the Administrative Appeals Tribunal (the Tribunal) adverse to the…

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AGLC
Tunks v Repatriation Commission [2008] FCA 521
Case
[2008] FCA 521
Decision Date

CaseChat Overview and Summary

In the case of Tunks v Repatriation Commission, the parties involved were the applicant, Tunks, and the Repatriation Commission. The dispute centered around the applicant's claim for a war-caused injury pension under the relevant legislation. The Federal Court of Australia was tasked with determining whether the Tribunal had correctly applied the statutory provisions in making its decision.

The primary legal issue was whether the Tribunal had erred in its application of section 120(3) and section 120A of the Act, which pertain to the evaluation of hypotheses linking the veteran's injury to their service. The applicant argued that the Tribunal had misapplied these sections by not sufficiently considering the evidence of the applicant's diet changes during and after service. The Repatriation Commission contended that the Tribunal had correctly applied the relevant legal principles.

The court examined the four-step process established by the Full Court in Repatriation Commission v Deledio, which guides the evaluation of war-caused injury claims. The court noted that while the Deledio steps were intended to clarify the decision-making process, their rigid application had created difficulties. The court found that the Tribunal had correctly followed the Deledio steps but erred in its application of sections 120(3) and 120A. Specifically, the Tribunal should not have engaged in fact-finding during the initial steps but rather focused on determining whether a reasonable hypothesis was raised by the evidence. The court concluded that the Tribunal's error was not a mere technicality, as it potentially placed an undue burden on the applicant to prove their case at an inappropriate stage.

As a result of this error, the court set aside the decision of the Administrative Appeals Tribunal and remitted the matter back to the Tribunal for reconsideration. The court also ordered that the respondent, the Repatriation Commission, pay the costs of the applicant.

Orders

Orders of the court

1. The decision of the Administrative Appeals Tribunal be set aside and the matter be remitted to the Tribunal to be heard and determined according to law.

2. The respondent is to pay the costs of the applicant.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MADGWICK J
In Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-8, the Full Court held that a four-step process is required under s 120 and s 120A of the Act to determine if an injury or death was war-caused. These steps may be summarised as:1.the material before the Tribunal is to be examined to see if it points to a hypothesis connecting the death with the circumstances of the veteran’s service. In the absence of a hypothesis, the claim fails;2.if the material does raise a hypothesis, the Tribunal must see if there is an SoP in force. If there is no SoP in force that fits the hypothesis, it will be taken not to be reasonable and the claim fails;3.if an SoP is in force and relevant to the hypothesis, the Tribunal will consider if the hypothesis is reasonable. If the hypothesis is consistent with the template found in the SoP, the hypothesis is reasonable. If the hypothesis fails to fit within the template, the claim fails;4.the Tribunal must then decide whether it is satisfied beyond reasonable doubt that the death was not war-caused. If it is not so satisfied, the claim succeeds. If it is so satisfied, the claim fails.The Tribunal’s decision The Tribunal described the hypothesis which the applicant contended linked the deceased veteran’s war-service with his prostate cancer as follows: he was fed a low fat diet by his mother prior to enlistment in the Royal Australian Navy but during service in the RAN, acquired a liking for foods with a high animal fat content, and after discharge from the Navy insisted on maintaining a diet high in animal fats. The more favourable SoP, which the Tribunal applied, provided as a factor that must as a minimum exist before a reasonable hypothesis has been raised connecting cancer of the prostate with operational service, an increase in “animal fat consumption by at least 40% and to at least 50 g/day, and maintaining these levels for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate.” The Tribunal held that, according to authority (Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581) “a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable”. Further, the Tribunal held that material which supports the hypothesis of the connection must exist, citing Repatriation Commission v Dunn [2006] FCA 1703; (2006) 94 ALD 97 per Nicholson J at [46]. The Tribunal however concluded that there was “no reliable evidence whatsoever as to the deceased’s actual dietary intake of animal fat prior to service.” The Tribunal referred to a national dietary survey of the Australian people conducted between 1936-8 which gave the average adult intake of animal fat as 126 g per day. The deceased veteran had a body mass index (BMI) of 18.7 at the time of his enlistment, bringing him within a healthy weight range (between BMI 18.5 and 25). The Tribunal inferred from this information that the deceased veteran’s daily intake of animal fat was around, or possibly slightly below, the national average.

Ratio Decidendi

Legal Principle Established

Established by: MADGWICK J

The respondent submits that there was no error on the part of the Tribunal in applying s 120(3) and s 120A, and finding that there was no evidence to support the essential elements of factor 5(c) of the SoP.Consideration This case demonstrates the difficulties attending matters concerning s 120(3) and s 120A. As Allsop J said in Collins v Administrative Appeals Tribunal [2007] FCAFC 111; (2007) 163 FCR 35 at [49],[t]he dividing line between impermissible fact finding and the required assessment of all the material in the formation of an opinion as to whether a hypothesis is reasonable in connecting the … death with the circumstances of service and as to whether a relevant SoP upholds the hypothesis is not easy to discern. Nevertheless, there are, in this area of the law, a number of clearly defined steps which a decision-maker must take, each with its own mandated methodology of application. In particular, the four Deledio steps (with the exception of the correction made in Bull v Repatriation Commission (2001) 188 ALR 756 at [14]–[15]) have become something of an algorithm in cases of this kind. While the Deledio propositions were intended as an aid to clear thinking and, with respect, are clearly right, treating them as if they were a substitute for the statute and, as I have put it, an algorithm, indeed the only available algorithm, seems in practice to have created at least as many problems as their learned author intended that they should avoid. That is not, of course, their author’s fault. Notwithstanding this, the application of the necessary steps cannot be said to be easy. As Gyles J said in Byrne v Repatriation Commission [2007] FCAFC 126; (2007) 97 ALD 359 at [1][o]ne can only have sympathy for the members of the [Tribunal] who are called upon to apply ss 120, 120A and 120B of the [Act] as they have been interpreted by the authorities of the High Court and this Court. The reasoning required would confuse most philosophers.The first three Deledio steps It is settled that the decision-maker is not to engage in fact finding during the first three Deledio steps (ie the application of s 120(3) as affected by s 120A): Deledio 83 FCR at 97; Bull 188 ALR at 761 . It is only during the fourth Deledio step (ie the application of s 120(1)) that actual fact finding is permissible. However, the determination of whether a reasonable hypothesis has been raised by the whole of the material before the decision-maker is itself a question of a factual nature: Bey 79 FCR 373 and Gardiner [2007] FCA 1290, and the first three Deledio steps are concerned with this very determination. This requires the decision-maker to determine a question of a factual nature, without engaging in formal or ultimate fact-finding. Such a tension makes the dividing line referred to by Allsop J above all the more difficult to discern. Nevertheless, it is important not only to draw the line, but to ensure that decision-makers do not step beyond its boundary. In Dixon v Repatriation Commission [1999] FCA 582; (1999) 29 AAR 235, Wilcox J held at 243 that:[t]he question whether a decision-maker reaches a conclusion adverse to a claimant at the step 3 stage or the step 4 stage is not a mere technicality. If belief is addressed at the step 3 stage, there is a risk that the decision-maker will rule against a claimant simply because he or she is not persuaded the claimant’s story is probably true. Although the decision-maker should not think in terms of onus of proof, in a practical sense at the step 3 stage the claimant is likely to be left with this burden. Moreover, the decision-maker is likely to reject the application even though he or she thinks the claimant’s story may possibly be true.(Emphasis in original.)