Bushell v Repatriation Commission

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; but not otherwise. (2) For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service: (a) if that incapacity was due to an acident - that incapacity shall be demed to have arisen out of the injury suffered by the veteran as a result of the accident and the injury so suffered shall be deemed to be a war-caused injury suffered by the veteran; or (b) in the incapacity was due to a disease - the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-caused disease contracted by the veteran. (3) Paragraph (1)(a), (b), (c) or (d) does not apply to an injury suffered, or disease contracted, by a veteran if the injury or disease: (a) resulted from the veteran's serious default or wilful act; or (b) arose from: (i)a serious breach of discipline committed by the veteran; or (ii)an occurrence that happened while the veteran was committing a serious breach of discipline. (4) Subsections (1) and (2) do not apply to an injury suffered, or disease contracted, by a veteran if the incapacity of the veteran from that injury or disease resulted from the serious default or wilful act of the veteran that hapened after the veteran ceased, or last ceased, to render eligible war service. (5) Paragraph (1)(c) does not apply: (a) to an accident that occurred while the veteran was travelling on a journey from the veteran's place of work in a case where the veteran had delayed commencing the journey for a substantial period after he or she ceased to perform duty at that place (otherwise than for a reason connected with the performance of the veteran's duties) unless, in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of that risk was not substantially increased, by that delay or by anything that happened during that delay; (b) to an accident that occurred while the veteran was travelling on a journey, or a part of a journey, by a route that was not reasonably direct having regard to the means of transport used unless: (i)the journey, or that part of the journey, was made by that routefor a rason connected with the performance of the veteran's duty; or (ii)in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of the risk was not substantially increased, by reason that the journey, or that part of the journey, was made by that route; or (c) to an accident that occurred while the veteran was travelling on a part of a journey made after a substantial interruption of the journey, being an interruption made for a reason unconnected with the performance of the veteran's duties, unless, in the circumstances of the particular case, the nature of the risk referred to in subparagraph (b)(ii) was not substantially changed, and the extent of that risk was not substantially increased, by reason of that interruption. (6) Paragraph (1)(e) does not apply to an injury suffered, or disease contracted, by a veteran (being an injury or disease that has been contributed to in a material degree by, or aggravated by, eligible war service rendered by the veteran): (a) if the aggravation of the injury or disease: (i)resulted from the veteran's serious default or wilful act; (ii)arose from a serious breach of discipline committed by the veteran; or (b) unless the veteran had rendered operational service or the period of eligible war service rendered by the veteran that so contributed to the injury or disease, or by which the injury or disease was aggravated, was 6 months or longer." It may be noted that in s9 the draftsperson has not used a constant expression to describe the degree of causal connection to be shown between the injury or disease and the service rendered and the words used to describe that connection include "resulted from", "attributable to", "arose out of", and "arose from". The words "resulted from an occurrence that happened while the veteran was rendering operational service" used in para9(1)(a) suggest a temporal connection between the suffering of injury and the rendering of operational service. The words "arose out of, or was attributable to, any eligible war service rendered by the veteran" in para9(1)(b) suggest a causal connection between the suffering of injury and the rendering of eligible war service. Sub-sections 9(3), 9(5) and 9(6) qualify the scope of the definitions contained in sub-s9(1) by excluding the operation of that sub-section in circumstances which relate to the suffering of the injury or contraction of the disease or the aggravation thereof. Sub-section 9(4) further excludes the operation of sub-s9(1) where the incapacity from the injury or disease has "resulted from" the circumstances described in that sub-section. By implication, the meaning of the words "incapacitated from a war-caused injury or war-caused disease" used in s13 of the Act is qualified by the terms of sub-s9(4). By the combined operation of sub-ss9(1) and 9(3) an injury suffered by a veteran from an occurrence that happened while the veteran was rendering operational service is not an injury to which para9(1)(a) applies, and therefore not a war-caused injury, if the injury resulted from the veteran's serious default, or wilful act, or arose from a serious breach of discipline committed by the veteran, or from an occurrence that happened while the veteran was committing such a breach of discipline. The wilful act referred to in the expression "serious default or wilful act" is to be taken to be serious misconduct that warrants severe condemnation. (See: McPherson v Repatriation Commission (1989) 87 ALR 275 at 280; Girlock (Sales) Proprietary Limited v Hurrell (1982) 149 CLR 155 per Stephen J at 163.) The Tribunal did not determine whether the applicant had suffered an injury or contracted a disease but on the material before the Tribunal it appeared to be appropriate for the Tribunal to conclude that the applicant suffered an injury. The word "injury" is defined in sub-s5D(1) of the Act as any physical or mental injury. The applicant contends that he suffered a war-caused injury according to the terms of para9(1)(a) of the Act. The Commission contends that the injury suffered by the applicant resulted from the applicant's serious default or wilful act in discharging his rifle to cause the death of the two sergeants. The Tribunal was satisfied that the material relevant to the applicant's claim was sufficient to suggest that the applicant was incapacitated by an illness, described as "a post traumatic stress disorder", which resulted from an occurrence that happened while the applicant was rendering operational service. A majority of the Tribunal decided that they were "satisfied beyond reasonable doubt that the applicant had sufficient awareness of what he was doing for the collecting and discharging of the firearm to be a wilful act under s9(3)(a)(i) [sic] and also that the discharging of the firearm in an Army camp was a serious breach of discipline committed by the veteran under s9(3)(a)(ii) [sic]" and, therefore, "sub-s120(1) of the Act does not apply to the applicant and his condition is therefore not war-caused". In referring to sub-paras9(3)(a)(i) and 9(3)(a)(ii) the Tribunal intended to refer to para9(3)(a) and sub-para9(3)(b)(i) respectively. It appears that the Tribunal acted on the assumption that pursuant to the terms of s120 of the Act the Tribunal had to be satisfied beyond reasonable doubt that the injury suffered by the applicant resulted from the applicant's serious default or wilful act. The nub of the applicant's contention on "appeal" was that although the Tribunal's understanding that the connection between the injury and a serious default or wilful act or serious breach of discipline had to be proved beyond reasonable doubt was correct, it was contrary to the evidence and, therefore, an error in law for the Tribunal to find that it was satisfied beyond reasonable doubt that the applicant had sufficient awareness of what he was doing for his acts to be wilful acts and for him to understand that he was committing a serious breach of discipline. The terms of s120 of the Act apply to a claim for a pension under s13 of the Act and the relevant parts of the section read as follows: "120(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease ... as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. ... (3) In applying subsection (1) ... in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) that the injury was a war-caused injury ... (b) that the disease was a war-caused disease ... or ... as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury [or] disease ... with the circumstances of the particular service rendered by the person. (4) Except in making a determination to which subsection (1) ... applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction. (5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that: (a) an injury suffered by a person is a war-caused injury ... (b) a disease contracted by a person is a war-caused disease ... ... (d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act. (6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on: (a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or (b) the Commonwealth, the Department or any other person in relation to such a claim or application;

any onus of proving any matter that is, or might be, relevant to the determination of the claim or application. ..." By a notice of contention the Commission submitted that the Tribunal misconstrued the terms of the Act by treating the terms of sub-s120(1) as applicable to paras9(3)(a) and 9(3)(b) of the Act. That submission was not put to the Tribunal. The Commission contended that the proper construction and application of the Act was part of the proper performance by the Tribunal of its functions and, therefore, any error of law in that regard may be raised on an "appeal" from the Tribunal. The applicant made no submission to the contrary and no claim of prejudice was made. I accept that the point sought to be raised by cross-contention was central to the task to be performed by the Tribunal, and of similar character to an issue of jurisdiction. Unless unfairness or prejudice may result that could not be remedied by an order for costs and it is in the interests of justice to do so, leave may be given to raise such an argument. As Bowen CJ said in Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 343:

"In my opinion a party is not necessarily precluded by the conduct of his case before the Tribunal from arguing on 'appeal' matters conceded below. If he is successful then the decision of the Tribunal may be overturned - found in some way to be wrong in law, even though that error may have been substantially contributed to by the conduct of the case by the party in question. In other words, the conduct of the party's case before the Tribunal goes to this Court's discretion as to what course it will take given that thee has been an error rather than to the question as to whether the Tribunal really made an error. The case before this Court is not merely one of parties agreeing upon what facts should be decided by the trier of fact, nor a case of facts, peculiarly within the knowledge of the party, being conceded. Rather, there was a clear statutory precondition upon which the Tribunal had to be satisfied and enough material and evidence before it to raise the issue independently of the parties' submissions. In these circumstances it was an error of law not to consider and decide the issue of immigrant status. Whether or not that error should lead to the decision of the Tribunal being set aside and the matter remitted to it depends in my view upon principles similar to those expressed by Dixon J. in Burston's case and by the same judge in Orr v. Holmes (1948) 76 C.L.R. 632, at p.640 'to fulfil an imperative demand of justice'." (See also: Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 121 ALR 436 at 445; Thomas v Repatriation Commission (1994) 50 FCR 112 at 119; Hospital Benefit Fund v Minister for Health (1992) 39 FCR 225 at 231-232.) However, failure of a Tribunal to make a finding of fact, or to deal with the materiality of a found fact, when it has not been required to do so by the party seeking to "appeal" on that point, will mean that no question of law can be relied upon to ground the appeal. (See: FCT v Raptis (1989) 89 ATC 4,994 at 4,999; Department of Social Security v Cooper (1990) 26 FCR 13; FCT v Perkins (1993) 93 ATC 4,524 at 4,526.) In the instant case the question of construction of the Act is a threshold issue to be resolved before the applicant's claim for a pension may be determined. Notwithstanding the concession made by the Commission in the conduct of its case before the Tribunal, proper determination of the matter according to law is a prime requirement of justice. The Commission should be allowed to argue the point raised by its notice of contention. By sub-s120(1) the Commission is directed that in respect of a claim for a pension relating to operational service the Commission is to determine that an injury giving rise to incapacity is a war-caused injury unless the Commission is satisfied, beyond reasonable doubt, that "there is no sufficient ground for making that determination". In respect of a claim for a pension which relies upon the definition "war-caused injury" contained in para9(1)(a) of the Act, the words "sufficient ground" used in sub-s120(1) must describe the qualification established in para9(1)(a), namely, whether "the injury...resulted from an occurrence that happened while the veteran was rendering operational service". Sub-section 120(3) directs the Commission to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that an injury was war-caused if the Commission has formed the opinion that the whole material before it does not raise a reasonable hypothesis connecting the injury with the "circumstances of the particular service rendered" by the veteran. Sub-section 120(3) is concerned only with the causal connection between the circumstances of the operational service rendered by the veteran and the injury or disease that has caused the veteran's incapacity. (See: Bushell v Repatriation Commission (1992) 175 CLR 408 per Brennan J at 425.) In its terms sub-s120(3) does not require the Commission to be satisfied beyond reasonable doubt that the material before it does not raise a reasonable hypothesis of the type specified. The sub-section directs the Commission to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that an injury is a war-caused injury if the Commission has formed the opinion that the material before it does not raise such a reasonable hypothesis. Whether there is a difference between the making of a determination and the formation of an opinion is unnecessary to consider. (See: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481; Webb v Repatriation Commission (1988) 78 ALR 696 per Davies J at 701, per Morling J at 703-704.) The Commission submits that sub-s120(1) is directed at the question whether the injury which caused the veteran's incapacity resulted from an occurrence that happened while the veteran was rendering operational service and that other questions relevant to the determination of a claim for a pension, such as the claimant's status as a veteran or whether operational service had been rendered by the veteran, are not determined by reference to sub-ss120(1), (3) but to the reasonable satisfaction of the Commission by application of sub-s120(4). The Commission submits that ancillary issues of like character, such as that arising under sub-s9(3), must be determined under sub-s120(4) in the same way. The Commission's submission is correct. Section 120 is concerned with facilitating the demonstration of the existence of a war-caused injury or disease where the veteran has rendered operational service. In effect, the section provides that if the material before the Commission relating to a veteran's claim raises a reasonable hypothesis connecting the injury or disease with the particular circumstances of the veteran's operational service, the injury or disease is to be taken to be war-caused unless it is proved to the Commission, beyond reasonable doubt, that the injury or disease is not war-caused within the meaning of sub-s120(1). Facts which may be germane to establishing a right to a pension under the Act but not part of the question of causal connection between a morbid condition and a relevant circumstance of operational service addressed under sub-s120(1) are facts to be established to the reasonable satisfaction of the Commission. (See: Bushell v Repatriation Commission per Brennan J at 427; Repatriation Commission v Kohn (1989) 87 ALR 511.) In Re McPherson and Repatriation Commission (1990) 20 ALD 166 the Tribunal, as then constituted, took the contrary approach considering sub-s120(1) established a "primary standard" with respect to matters of fact including disentitling provisions equivalent to those set out in sub-s9(3). Whilst there may be sound reasons for assisting a claim to a pension made by a veteran who has rendered operational service by directing the person determining the claim to elicit from relevant material a connection between the veteran's operational service and the injury or disease suffered by the veteran, where the support for such a connection is no more than hypothetical, it appears to be neither logical nor good policy to discriminate between veterans on the application of disentitling provisions such as those contained in sub-s9(3). Sub-section 9(3) is a provision that has serious consequences and the operation of the sub-section is not restricted to veterans who have rendered operational service. Unless express words show that a contrary course is to be followed for veterans who have rendered operational service the disentitling conduct to which sub-s9(3) refers should apply equally to all veterans. There would appear to be no reason to treat a veteran who rendered eligible war service, but not operational service, as disentitled to a pension upon the Commission being reasonably satisfied under s120(4) that the injury or disease resulted from the veteran's serious default or wilful act but a veteran who rendered operational service and had acted in the same manner as not disentitled unless the Commission was satisfied beyond reasonable doubt that the veteran had so acted. The Tribunal erred in construing the terms of s120 of the Act as imposing on the Commission a requirement that it be satisfied beyond reasonable doubt that the applicant had committed a serious default or wilful act before it could be shown that the applicant was not entitled to a pension under the terms of the Act. It follows from the Tribunal's finding, and it was not contested by the applicant, that if the Tribunal had applied the Act properly construed the Tribunal would have been reasonably satisfied that the terms of sub-s9(3) applied to the injury suffered by the applicant and, therefore, the applicant could not establish that he had suffered a war-caused injury pursuant to para9(1)(a) of the Act. Therefore, the "appeal" must fail and there will be an order accordingly.

Given that the Commission succeeded on a point raised in its notice of contention that was not argued before the Tribunal there should be no order for costs. I certify that this and the preceding twenty pages are a true copy of the Reasons for Judgment of his Honour Justice Lee. Associate: Date:

APPEARANCES Counsel for the Applicant: H.N.H. Christie Solicitors for the Applicant: Legal Aid Commission of W.A. Counsel for the Respondent: C.A. Wheeler, Q.C. P. Hanks Solicitor for the Respondent: Australian Government Solicitor Date of Hearing : 29 May 1996 Date of Judgment : 17 September 1996