Gilkinson v Repatriation Commission

The explanatory memorandum 10 Section 196B was introduced by the passage of the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth). It was accompanied by an explanatory memorandum which explained s 196B(14) in these terms: … [it] spells out the same liability provisions as are contained in sections 8, 9 and 70 of the Principal Act. While the subsection refers to all of the liability provisions contained in those sections of the Principal Act, not all of those connections will apply to every veteran, member of the Forces or member of a Peacekeeping Force when a Statement of Principles is being applied to a particular claim for pension. Only the connections that apply under the relevant section of the Principal Act to the veteran or member can apply in relation to "factors … related to service" for the purposes of the application of the Statement of Principles to the facts of the particular claim. … only the appropriate and relevant connections as set out in the relevant liability provision (ie, section 8, 9 or 70 of the Principal Act) can apply. (Emphasis added). 11 This emphasised portion suggests that the internal structure of differing claims in ss 8, 9 and 70 was intended to be continued in the form of s 196B(14). Put another way, what had been attribution cases under s 9(1)(b) would continue to be governed by a similar attribution provision in s 196B(14)(b). I do not detect any suggestion that the standard of causation in attribution cases was going to be raised from the sine qua non level to a requirement of dominant or effective cause.

The interrelationship between s 196B(14)(b) and (d) 12 The learned primary judge was concerned that if subsection (b) was not given some more confined operation then it would effectively render subsection (d) superfluous. However, I do not think this can, with respect, be correct. Although there is some apparent similarity, the two provisions deal, I think, with discrete topics. Subsection (b) is concerned with those cases where the factor (which stands as a proxy for the injury or disease within the intersticies of ss 120 and 120A) would not exist without the service; subsection (d) with those cases where the factor would have existed in some form without the service but where the service can be seen as contributing to or aggravating it. I do not agree, therefore, that giving subsection (b) the same kind of operation as the same words in s 9(1)(b) and its predecessors should impact on the operation of subsection (d).

Conclusion 13 When these matters are brought to account I can see no reason to approach the wording of s 196B(14)(b) any differently to the wording of s 9(1)(b). The learned primary judge was moved to accept that the meanings of the words 'arising out of' or 'was attributable to' in the two provisions were different because of her Honour's concern about the impact on s 196B(14)(d) but, for reasons given, I do not think that this can be correct. 14 The appeal should be allowed with costs; the orders of the learned primary judge set aside and in lieu thereof it should be ordered that the appeal should be allowed with costs, the Tribunal's decision be set aside and the matter remitted to the Tribunal for determination according to law. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate: Dated: 28 October 2011 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1756 of 2010

JUDGES: PERRAM, NICHOLAS AND ROBERTSON JJ DATE: 28 OCTOBER 2011 PLACE: SYDNEY

Introduction 15 The narrow issue in this appeal is the relationship between ss 196B(14)(b) and 196B(14)(d) of the Veterans' Entitlements Act 1986 (Cth) ("the Act") and whether the Administrative Appeals Tribunal ("the Tribunal") erred in law in that respect. The learned primary judge found there was no error of law in the Tribunal's approach. 16 The question of law raised on the appeal to the primary judge was whether the Tribunal erred in law by failing to pose and answer the correct question dealing with the appellant's hypothesis that shift work and drinking on operational service contributed to his obesity. 17 In short, the question is whether the Tribunal should have considered s 196B(14)(b) as well as s 196B(14)(d). 18 The ground in the notice of appeal from the Tribunal explains how the issue arose: Amongst other things, the Applicant's case was that shift work and alcohol consumption on operational service contributed to him becoming obese, and thus satisfying factor 5(b) of the Statement of Principles concerning Sleep Apnoea. There was evidence that the Applicant's alcohol intake, while at sea, would have contributed to his energy intake and weight gain but that the contribution was likely to be minor. There was also evidence that the effect of shift work on the Applicant's obesity would have been moderate. The Tribunal confined itself to s 196B(14)(d) of the Veteran's Entitlements Act 1986, applied Comcare v Canute (2005) 148 FCR 232 and found that the shift work and alcohol consumption, on operational service, did not meet the threshold of being material contributors to the Applicant's obesity. The Tribunal erred by failing to ask the correct question, in accordance with s 196B(14)(b), which was whether the Applicant's obesity arose out of or was attributable to his shift work or alcohol consumption on operational service. Under s 196B(14)(b) there is no requirement for the contribution to be "material". Factor 5(b) of the Statement of Principles, No 13 of 2005, concerning Sleep Apnoea was "being obese at the time of the clinical onset of sleep apnoea". 19 The basis for the findings referred to in the notice of appeal from the Tribunal so far as concerns shift work is to be found at [32]-[33] of the Tribunal's reasons and, so far as concerns alcohol consumption on operational service, at [34]-[35] of those reasons. 20 We note that it was common ground on the appeal that the Tribunal had not in terms asked itself whether a factor causing, or contributing to, an injury or disease was related to service rendered by the appellant on the basis that "it arose out of, or was attributable to" that service: see s 196B(14)(b). 21 We also note that although the Tribunal considered whether it was satisfied beyond reasonable doubt that the appellant's incapacity did not arise from a war-caused injury and held that it was satisfied beyond reasonable doubt that the factual basis for such an hypothesis had been negatived, it was not contended on behalf of the present respondent that that conclusion had the result that any error in relation to s 196B(14) was immaterial. 22 The appeal was argued on the narrow basis that the Tribunal did not address s 196B(14)(b) in fact but, on the respondent's side, that there was no need for it to do so as any application of s 196B(14)(b) was covered by s 196B(14)(d) which the Tribunal did consider. 23 The question of law thus raised was the relationship between s 196B(14)(d) which the Tribunal did consider and s 196B(14)(b) which, in terms, it did not. If s 196B(14)(d) was a paragraph that was wider than and more favourable to the appellant than s 196B(14)(b) then there would be no material error of law. Section 196B(14)(d) refers to whether or not the factor "was contributed to in a material degree by, or was aggravated by, that service". 24 The reasons of the learned primary judge are encapsulated at [41], [49] and [50] of her Honour's judgment: 41. Ordinarily, a phrase, such as "arose out of or was attributable to", occurring in several places in the same statute, is to be construed as having the same meaning each time it occurs; Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618 per Mason J; see also Pearce and Geddes, Statutory Interpretation in Australia, 2001, 5th ed at 90-91. That general principle must, however, give way to contrary indications in the statute whether they are express or they arise from context. In my view when attention is given to all of the subclauses of s 196B(14), and when the purpose and structure of the section as a whole are considered, such contrary indications are evident. This conclusion is reinforced when, in the light of these aspects of s 196B, the section is compared with s 101(1)(b). … 49 . . . [Section 196B(14)(b)] requires the applicant's operational service to be the dominant or effective cause of the factor causing or contributing to the applicant's disease. The legislature's evident intention to provide a more refined and nuanced approach in the context of an applicable statement of principles would be undermined by the construction of the subclause for which the applicant contends. 50. The applicant's submission that the Tribunal should have applied the test of "related to [service]" in s 196B(14)(b) was premised on the subsection having a lower threshold than s 196B(14)(d) with its requirement of materiality. On the meaning outlined above, however, subclause (b) imposes a more stringent test than subclause (d). In other words, the Tribunal applied the test that was more favourable to the applicant. In deciding that the applicant's obesity did not contribute "in a material way" to his sleep apnoea the Tribunal relied on findings of fact that it was entitled to make. On those findings the applicant could not have succeeded had subclause (b) been applied.

The facts 25 We take the background facts, so far as they are relevant to this appeal, from the judgment of the primary judge: 1 The applicant, Mr David Gilkinson, suffers from sleep apnoea. He claims that this condition is related to operational service within the meaning of the Veterans' Entitlements Act 1986 (Cth) (VE Act). On 14 September 2004 he lodged a combined application for the grant of pension entitlements in respect of sleep apnoea and for an increase in his existing pension. On 30 March 2005 the Repatriation Commission refused both claims. 2 The Commission's decision on both counts was affirmed by the Veterans' Review Board on 24 February 2006. The applicant's appeal to the Veterans' Appeals Division of the Administrative Appeal Tribunal was similarly unsuccessful in relation to his claim for a pension in respect of his sleep apnoea. On 22 September 2009 the Federal Court set aside the Tribunal's decision and remitted the matter to the Tribunal for further consideration; [2008] FCA 1441; 104 ALD 406. The Court found that the Tribunal had made an error of law in failing to consider the effect of shift work as a contributing factor to the applicant's condition. 3 Mr Gilkinson's claim was again reviewed by the Tribunal and on 15 January 2010 it was again rejected. Mr Gilkinson sought review of this second decision in this Court. He alleges that the Tribunal erred in law by failing to pose and answer the correct question . . . . . . 5 It is not in contention that the applicant served in the Australian Navy from 10 July 1965 to 9 July 1977 and that during that time he experienced operational service within the meaning of the VE Act. Critical to the decision of the Tribunal was that this operational service was not one continuous period but consisted of ten separate periods between February 1970 and November 1972 during which HMAS Sydney was on duty in an operational area . . .

Consideration 26 Section 196B(14) prescribes where a factor causing, or contributing to, an injury, disease or death is related to service rendered by a person. The emphasis is in the text of the Act and relates back to s 196B(2)(e). 27 Thus, in the present case, being obese at the time of clinical onset of sleep apnoea was related to service rendered by the appellant if, relevantly, that factor arose out of or was attributable to that service or was contributed to in a material degree by, or was aggravated by, that service. 28 It is clear that the Tribunal expressly addressed at [41] s 196B(14)(d), that is, whether the factor of being obese at the time of the clinical onset of sleep apnoea was contributed to in a material degree by, or was aggravated by, the service rendered by Mr Gilkinson. The question is whether that provision necessarily covered the entirety of the ground of s 196B(14)(b). 29 In our view, it cannot be said as a universal proposition that, for the purposes of the Act, whether a factor was contributed to in a material degree by, or was aggravated by, the appellant's service is a broader test which always subsumes the question of whether a factor arose out of, or was attributable to, that service. 30 On this basis the appeal must succeed as there remains the possibility that if the Tribunal had in terms addressed s 196B(14)(b) the result may have been different. The facts are not for this Court to find or evaluate for the first time on an 'appeal' limited to a question of law. 31 Our reasons are as follows. 32 First, the words in the two provisions are different and the operation of them may be different depending on the facts of a particular case. 33 Second, the words deal with causation which is notoriously fact based: see, in a different context, March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515 where Mason CJ referred to the common law tradition that what was the cause of a particular occurrence is a question of fact which must be determined by applying common sense to the facts of each particular case. 34 Third, we see no reason to construe the words differently where the question is whether a factor is related to service rendered by a person as opposed to, for example, whether the death should be taken to have been war-caused: see s 8 of the Act. Earlier decisions of the Court support this approach. In Deledio v Repatriation Commission (1997) 47 ALD 261 at 269 Heerey J said that s 196B(14) defines the concept "related to service" in terms consistent with the definitions of war-caused death (s 8) and war-caused injury or disease (s 9). See also Repatriation Commission v Money (2009) 173 FCR 410 at [83] per Dowsett J, and Hill v Repatriation Commission (2009) 177 FCR 434 at 439 where the Full Court said, in relation to s 196B(14), that the specified factors reflect in a general way the matters specified in ss 8 and 9 as to when the injury, disease or death of a veteran is war-caused. 35 Fourth, the courts have eschewed attempts to put a gloss on statutory words of relationship or causation, no doubt because of the almost infinite number of factual circumstances which fall to be assessed for the judgment to be made: see Roncevic v Repatriation Commission (2005) 222 CLR 115 at [82] ('Roncevic') and Repatriation Commission v Law (1980) 31 ALR 140 at 150-151 ('Law'). 36 Fifth, the learned primary judge's conclusion rests on the proposition that s 196(14)(b) requires the appellant's operational service to be the dominant or effective cause of the factor causing or contributing to the appellant's disease. 37 In our view this construction is inconsistent with Roncevic at [27] where the plurality in the High Court said that the use disjunctively in s 70(5) of the expressions "arose out of" and "was attributable to" manifested a legislative intention to give "defence-caused" a broad meaning. Their Honours added: A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate. [citations omitted] 38 Her Honour's construction is also, in our view, inconsistent with Law where the Full Court at 150-151 considered the expressions "has arisen out of" and "is attributable to his war service" then to be found in s 101(1)(b) of the Repatriation Act 1920. As to the former of these expressions, "has arisen out of", the Full Court said those words required a consequential relationship and that it was not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be "immediate", "direct" or "proximate" or by saying it connotes a "real", "sole" or "dominant" cause. Their Honours said that the expression "arisen out of" was different to "caused by" or "results from" and was satisfied if some less proximate causal relationship was established other than a relationship which was fanciful or so tenuous as to preclude its consideration as answering the description "arising out of". As to the expression "is attributable to" their Honours said the cause need not be the sole or dominant cause and that it was sufficient to show "attributability" if the cause is one of a number of causes provided it is a contributory cause. 39 Contrary to the approach of the learned primary judge (see [41] of her Honour's reasons as set out above), allowing for the different subject matters, we see no reason to think that a different approach was intended in s 196B(14) to the approach in ss 8, 9 and 70. This is particularly so where, on our reading of the extrinsic material (see below), the Minister envisaged a consistent usage. 40 Sixth, we note briefly the extrinsic materials to which we were taken. We see as the most relevant of these materials what is said on page 12 of the Explanatory Memorandum to the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 which related to the introduction of s 196B. What was there said, noting that what is now s 196B(14) was at that time numbered s 196B(10), is as follows: New subsection 196B(10) defines the phrase "related to service" as it applies to "factors" for the purposes of new subsections 196B(2) and (3) and spells out the same liability provisions as are contained in sections 8, 9 and 70 of the Principal Act. While the subsection refers to all of the liability provisions contained in those sections of the Principal Act, not all of those connections will apply to every veteran … when a Statement of Principles is being applied to a particular claim for pension. Only the connections that apply under the relevant section of the Principal Act to the veteran . . . can apply in relation to "factors … related to service" for the purposes of the application of the Statement of Principles to the facts of the particular claim. New subsection 196B(10) lists all of the possible connections that might be encompassed by the expression "related to service". However, in the application of a Statement of Principles to a particular case, only the appropriate and relevant connections as set out in the relevant liability provision (ie, sections 8, 9 or 70 of the Principal Act) can apply. We do not see anything else of significance in the extrinsic material. 41 Seventh, the construction of the provisions we prefer is supported by the plurality judgment in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71] where their Honours said that a court construing a statutory provision must strive to give meaning to every word of the provision. 42 Lastly, we refer to the approach to interpretation which assumes that where a word is used consistently in legislation it should be given the same meaning consistently. The matter is discussed in Pearce DC and Geddes RS Statutory Interpretation in Australia, (7th ed) at para 4.6, although it is noted in para 4.7 that the approach is readily rebuttable. Here, we are not concerned with a word being used consistently but with phrases and sequence of phrases being used in the same Act to delineate causal relationship. 43 For these reasons we reject the respondent's submission that s 196B(14)(d) expands on paragraph (b), if by that it is meant that in no circumstances may (b) be satisfied where (d) is not. Thus we reject the submission that the Tribunal had no need to consider s 196B(14)(b). 44 Further, we reject the submission that each paragraph of s 196B(14) needs to be qualified by a concept of materiality in order to give them all a harmonious operation. Instead, in our view, it would only be by reading in to (b) the word "materially" (such as "materially attributable to") as used in (d) that it would begin to be possible to say that they cover exactly the same ground. 45 Of course, our reasons say nothing about the merits of the application to the Tribunal. It is unfortunate that the case has to be remitted again to the Tribunal but, as the respondent by its argument accepted, if the two provisions do not cover the same ground then it is possible that the respondent may succeed in the Tribunal. Whether or not the respondent will there succeed is a matter for the Tribunal. We leave it to the Tribunal to decide whether and, if so, to what extent, it will hear further evidence.

Orders 46 For these reasons we would allow the appeal. The orders made by the primary judge on 25 November 2010 should be set aside and in lieu thereof the decision of the Tribunal should be set aside and the matter remitted to the Tribunal to be heard and decided again according to law. The respondent should pay the appellant's costs of the appeal and of the proceeding before the primary judge. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Nicholas and Robertson.