East v Repatriation Commission

REASONS FOR JUDGMENT NORTHROP, SUNDBERG, MARSHALL and MERKEL JJ BACKGROUND The respondent served with the Australian Regular Army in Vietnam between April 1968 and April 1969. His service was "eligible war service" and "operational service" for the purposes of the Veterans' Entitlements Act 1986 ("the Act"). The respondent has contracted rheumatoid arthritis which he contends is sufficiently linked to his service in Vietnam for it to be regarded as war‑caused for the purposes of the Act. While in Vietnam the respondent served as a member of an engineering squadron. He carried out maintenance work including the servicing of heavy earthmoving equipment which exposed him to stress. He experienced discomfort from time to time which he attributes to the manner in which he was required to service and repair machinery. The respondent played a lot of sport in Vietnam and would sometimes wake up in the morning with painful joints and limbs, which he attributed to sporting incidents. The pains continued after he left Vietnam. The first time that the symptoms were severe enough for him to seek medical attention was in 1974 or 1975, but he was not diagnosed as suffering from rheumatoid arthritis until 1979. COURSE OF PROCEEDINGS In August 1992 a delegate of the appellant determined that the respondent's rheumatoid arthritis was not war‑caused. The Veterans' Review Board affirmed that decision. The Veterans' Appeals Division of the Administrative Appeals Tribunal also affirmed the delegate's decision. The respondent's appeal to this Court was allowed, the Tribunal's decision set aside, and the matter remitted to the Tribunal for determination according to law. The appellant has appealed to this Court. The appeal was heard by a court of five Judges since it is said to raise an inconsistency between two decisions of the Full Court: East v Repatriation Commission (1987) 16 FCR 517 ("East") and Cooke v Repatriation Commission (1997) 45 ALD 205 ("Cooke"). THE LEGISLATION Section 9 of the Act sets out the circumstances in which an injury suffered or a disease contracted by a veteran is to be taken to be war‑caused. So far as relevant to the present case it is as follows: (1) Subject to this section, for the purposes of this Act ... a disease contracted by a veteran shall be taken to be a war‑caused disease, if: (a) the ... disease contracted ... by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; (b) the ... disease contracted ... by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; Ľ (d) the ... disease contracted ... by the veteran is to be deemed by subsection (2) to be ... a war‑caused disease; (e) the ... disease contracted ... by the veteran: (i) was ... contracted while the veteran was rendering eligible war service, but did not arise out of that service; or (ii) was ... contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service; and, in the opinion of the Commission, the ... 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 ... 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 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: Ľ (b) ... 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. Section 120 is in part as follows: (1) Where a claim under Part II for a pension in respect of the incapacity from ... disease of a veteran ... relates to the operational service rendered by the veteran, the Commission shall determine ... that the disease was a war‑caused disease ... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Ľ (3) In applying subsection (1) ... the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining ... that the disease was a war‑caused disease ... 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 ... disease ... with the circumstances of the particular service rendered by the person. In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 the High Court said of the relationship between sub‑ss (1) and (3) of s 120: The position may be summarized as follows: (1) First, sub‑s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub‑s(1) of s 120 is applied. The method of applying s 120(1) and (3) is now well established: