Blain v Repatriation Commission

1. The appeal be allowed and the decision of the Administrative Appeals Tribunal, dated 9 September 2016, be set aside.
2. Pursuant to s 44(7) of the Administrative Appeals Tribunal Act 1975 (Cth), the Court finds that the death of veteran, Milton Blain, was war-caused with effect from 7 April 2010.
3. The respondent pay the applicant's costs of and incidental to the appeal as agreed or assessed.
4. The hearing of the appeal fixed for 17 February 2017 be vacated. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 On 15 February 2017, following consideration of a "consent", lodged pursuant to r 39.11 of the Federal Court Rules 2011 (Rules) and a related joint outline of submissions, I made orders as proposed in the consent, adding a consequential vacation of the listing for hearing on 17 February 2017 of the applicant's appeal from the Administrative Appeals Tribunal (Tribunal) under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). At the time, the parties were informed that I would publish reasons for the making of the orders as soon as possible. These are those reasons. 2 Within the Rules, r 39.11 provides: Consent orders (1) A Judge may make an order in accordance with the terms of a written consent of the parties by initialling or otherwise annotating the consent and placing it on the Court file. (2) The order must state that it is made by consent. (3) The order has the same force and validity as an order made after a hearing by the Judge. 3 In relation to what are best termed statutory appeals under s 44 of the AAT Act (for in point of law they are proceedings in the Court's original jurisdiction), the Court's practice is relevantly amplified by section 11 of the Administrative and Constitutional Law and Human Rights National Practice Note (ACLHR-1), made by the Chief Justice on 25 October 2016. Paragraph 11.1 of that practice note states: 11.1 If the parties propose that an order be made with their consent, the effect of which is to set aside or vary an order of a federal Tribunal ("proposed consent order"), then they must: (a) prepare a proposed consent order that contains, within a "notes" section at the foot of the document, a succinct statement of the matters said to justify the making of the proposed consent order and giving reference to any authorities or statutory provisions relied upon; (b) each sign the proposed consent order; and (c) provide the proposed consent order to the Court, preferably by eLodgment. 4 In this case, the parties have complied with the substance of the practice found in this practice note but, instead of appending a "notes" section at the foot of the proposed order, they have, instead, lodged with the proposed consent order a comprehensive but nonetheless succinct joint outline of submissions. They are not to be criticised for this but rather commended. 5 That the parties consent to the making of orders setting aside a decision of the Tribunal and, in this instance, also making a particular finding of fact does not mean that the Court is bound to make such orders. The power to set aside a decision of the Tribunal is, by s 44(5) of the AAT Act, one of the orders which the Court might make pursuant to s 44(4) of the AAT Act. Whether or not to make such an order requires the exercise of a judicial discretion. In exercising that discretion the Court must, amongst other things, be satisfied that the Tribunal's decision is indeed attended with one or more of the errors of law which the parties are disposed to concede. Further, consent does not confer jurisdiction. Further again, the power to make findings of fact on an s 44 appeal is not at large but constrained by those considerations set out in s 44(7) of the AAT Act. Additionally, in a case where there is a remitter to the Tribunal proposed as an order (and the present is not such a case), it is necessary that the Tribunal have the benefit of understanding why that is occurring, lest history repeat itself. Each of these matters informs the requirement found in the practice note to do more than just lodge a bare, signed consent. The parties must at least set out in a notes section in respect of the proposed orders a succinct rationale for why the discretion is able and ought to be exercised to make the proposed orders. 6 In some cases, and the present is one, appending a note would, given the nature of the explanation needed to demonstrate that there is indeed an error as conceded warranting the making of the proposed orders, yield an unwieldy document. Perhaps the only succinct note which in this case could have been set out in the proposed orders was that the justification for the making of the orders was set out in the joint outline of submissions filed with the consent to the proposed orders. Be this as it may, the parties have filed such a joint outline in conjunction with the consent to proposed orders which they have signed. 7 The parties promote in their joint outline, and I accept, that the correct operation of the Veterans' Entitlements Act 1986 (Cth) (VEA) in the circumstances of this case was as follows. 8 The controversy in the present case was a sequel to a claim which the applicant had made under s 14 of the VEA, arising from the death of her husband, Mr Milton Blain, a veteran. One material eligibility criterion in respect of the benefits claimed was that Mr Blain's death was "war-caused" in terms of s 8 of that Act. 9 By the decision under challenge, the Tribunal affirmed a decision that the applicant was not entitled to the benefit claimed, because Mr Blain's death was not "war-caused". In undertaking its review task in respect of the merits of the applicant's claim, the Tribunal, like the respondent Repatriation Commission and the Veterans' Review Board, was obliged to apply the VEA in the way explained by this Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92-93 and 97-98 (Deledio). 10 Given the nature of Mr Blain's service, regard to s 120(3) of the VEA was necessary. A statement of principles (SOP) was applicable in respect of the nominated medical condition. That being so, one of the steps specified in Deledio required the Tribunal to form an opinion whether the particular hypothesis raised by the material before it connecting Mr Blain's death with his service was a reasonable one for the purposes of s 120(3) of the VEA. As an SOP was in force, the Tribunal was obliged to hold the hypothesis to be reasonable only if the raised facts supported the hypothesis and the SOP upheld the hypothesis. 11 The medical condition concerned was diabetes mellitus, to which the SOP found in Statutory Instrument No 69 of 2011, as amended by Statutory Instrument 27 of 2016 was applicable. Materially, the SOP required a particular length of exposure to second-hand smoke prior to the clinical onset of Mr Blain's diabetes mellitus. The Tribunal accepted that Mr Blain had a particular exposure to second-hand smoke during and related to his operational service in the Australian Defence Force (ADF). It also found that, in his post ADF career, he had also had a particular exposure to second-hand smoke, some of which had occurred in a period which the SOP made critical namely, within the 15 years prior to the clinical onset of his medical condition. Because Mr Blain's exposure within this 15 year period was not an exposure during his military service, the Tribunal considered it was obliged, on the construction it favoured of the SOP, not to uphold the hypothesis as reasonable. 12 In so doing, the Tribunal adopted a construction of the SOP which the parties contend, and I accept, was contrary to a construction afforded to materially indistinguishable language in another SOP by Katzmann J in Knight v Repatriation Commission [2010] FCA 1134. On that construction, all that was necessary was that there be an exposure in the requisite anterior period, not that this exposure take place during operational service. The Tribunal was bound to follow that construction. 13 On the findings of fact which the Tribunal made and adopting the true construction of the SOP, the Tribunal was obliged to find that the hypothesis was reasonable and, consequentially, that Mr Blain's death was war caused. In these circumstances, the case is one which is apt not just for the setting aside of the Tribunal's decision, but also for the making of findings under s 44(7), so as to avoid a pointless remitter to the Tribunal: Comcare v Etheridge (2006) 149 FCR 522 at [17] per Branson J. 14 It was for these reasons that I accepted the joint submission and made the orders proposed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.