Gartrell v Repatriation Commission

THE COURT: 1 This is an appeal from a decision of Madgwick J in an "appeal" on a point of law from the decision of the Administrative Appeals Tribunal. The question was described by the judge as follows: "The question involved is whether a statement of principles determined under s 196B of the Veterans Entitlements Act 1986 (Cth), made after the date of lodgement of a claim and having the effect of negating a reasonable hypothesis that an applicant's claimed disability was service related, applies such that the claim must be determined in accordance with that statement of principles even though the effect might be to deny a claim for which some evidentiary support was available at the time the claim was lodged." 2 It was accepted below that the facts before the Administrative Appeals Tribunal were not relevantly different from those considered by the Full Court of this Court in Ogston v Repatriation Commission (1999) 86 FCR 578. It was therefore accepted that the judge was bound to follow that decision, with the result that the question posed was to be answered yes, and the "appeal" dismissed. 3 The appeal to this Court was brought in order to challenge the judgment in Ogston. Reliance is placed upon the later decision of a Full Court in Repatriation Commission v Keeley [2000] FCA 532. It is said that the reasoning in that decision should be applied in preference to that in Ogston. 4 The respondent submits that Ogston is directly applicable on the facts, and cannot be distinguished. This is correct, although in this case (as in Keeley) there has been more than one Statement of Principles since 1 June 1994 (all promulgated post the appellant's initial claim), each has the effect of defeating his claim. By contrast, the issue in Keeley was whether, if a Statement of Principles does not deny a claim and is then revoked and replaced by a Statement of Principles that does, the claim must be considered according to the first rather than the later Statement of Principles. That question simply does not arise here. 5 The respondent also points out that the decision in Keeley is consistent with, and even depends upon, the correctness of Ogston. In Keeley (as here) there was no Statement of Principles in existence at the time of the claim. The first Statement of Principles was promulgated prior to the refusal of the claim by the Commission, and did not rule out success in the claim. The second Statement, which did, was promulgated after affirmation of the refusal by the Veterans' Review Board but prior to the decision of the Administrative Appeals Tribunal. The starting point of the judgment in Keeley is that the first Statement of Principles did bind - indeed, gave rise to an accrued right. That is directly contrary to the present submission of the current appellant. This, no doubt, explains why it is that Lee and Cooper JJ in Keeley did not refer to Ogston at all. Ogston was cited by Kiefel J in support of the proposition that the first Statement of Principles applied. 6 Thus, the position is that there is a recent, and reasoned, decision of the Full Court directly in point. It, in turn, upheld the decision of Mathews J sitting as a member of the Administrative Appeals Tribunal. The Full Court decision which we are invited to follow in preference to it is, in truth, in accordance with it. The decision in Ogston was unanimous. Special leave to appeal to the High Court from it was refused. It cannot be said to be clearly wrong. Indeed, it appears to accord with the usual principles applicable in situations of this kind. We have no proper course other than to follow Ogston. 7 We recognise, of course, that there may be difficulty in reconciling all of the reasoning in the judgments in Keeley with all of the reasoning of the judgment in Ogston. That is not the concern of this Court in these proceedings. That will arise when, and if, the correctness of the decision in Keeley becomes necessary to decide in another case. 8 The appeal should be dismissed. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Whitlam, Lindgren and Gyles.