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Keeley v Repatriation Commission

[1999] FCA 1103

Federal Court of Australia|1999-08-13|Before: Heerey J

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Court

Federal Court of Australia

Decision date

1999-08-13

Before

Heerey J

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Judgment (9 paragraphs)

[1]

REASONS FOR JUDGMENT 1 The applicant is the widow of Kenneth John Keeley who served with the RAAF in the South West Pacific from 1941 to 1946. When the applicant's claim for pension in respect of the death of her husband was refused by the respondent Commission, and also when that decision was subsequently reviewed by the Veterans' Review Board (VRB), the applicable Statement of Principle (SoP) would, arguably at least, have upheld a reasonable hypothesis connecting the veteran's death with the circumstances of his operational service for the purposes of s 120(3) and 120A(3) and s 120(3) of the Veterans' Entitlements Act 1986 (Cth) (VEA). 2 However by the time the applicant's application for review was heard by the Administrative Appeals Tribunal (AAT), a second SoP had replaced the first one. It was common ground that if the second SoP was applicable the applicant could not bring her case within it. 3 The AAT held that the second SoP applied. In effect this was treated by the AAT as a preliminary issue. If this appeal succeeds and the matter is remitted to the AAT the Commission would wish to contest the factual basis of the applicant's claim. 4 This appeal raised the following question of law. Is an AAT review of a decision of the Commission to be determined by reference to the SoP in force when the primary decision was made, or by reference to the SoP in force at the time of the AAT review?

[2]

The applicant's case 5 Mr Keeley died on 29 September 1986 as a result of multiple myeloma, a type of cancer. 6 On 14 December 1994 the applicant lodged a claim for a widow's pension under VEA Pt II. Having been made after 1 June 1994, the claim was subject to the SoP regime: s 120A(1)(a): Ogston v Repatriation Commission (1999) 29 AAR 89. In the claim the veteran's service cause or contribution was said to be "bowel trouble". At the time of his death he was receiving a sixty per cent service pension. 7 On 12 January 1995 the Repatriation Medical Authority (RMA) made Instrument No. 1 of 1995 (the first SoP) concerning multiple myeloma which relevantly stated: "1. Being of the view that there is sound medical-scientific evidence that indicates that multiple myeloma and death from multiple myeloma can be related to operational service rendered by veterans … the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting multiple myeloma or death from multiple myeloma with circumstances of that service are: (a) … or (b) being occupationally exposed to paints and/or lacquers before the clinical onset of multiple myeloma; or (c) … or (d) … 2. … at least one of the factors set out in paragraphs 1(a) to (d) must be related to any service rendered by a person." [emphasis in original] 8 On 31 May 1995 a delegate of the Commission decided that the death of Mr Keeley was not causally related to his operational service. 9 The applicant sought review by the VRB. The applicant, who was not legally represented, told the VRB that her husband had "suffered from anxiety with stomach trouble (functional dyspepsia), and that was the reason he developed cancer". On 19 April 1996 the VRB found that none of the factors in the first SoP applied in the case of Mr Keeley. 10 On 20 June 1996 the applicant lodged an application for review by the AAT. 11 On 26 September 1996 the RMA made Instrument No. 134 of 1996 (the second SoP) concerning multiple myeloma. The second SoP revoked the first SoP. The factor relating to exposure to paints and lacquers now read as follows (par 5(b)): "being occupationally required to work as a painter for an average of three or more days per week over any two year period, (or working as a painter for a period or periods of time totalling at least 312 days) before the clinical onset of multiple myeloma, and where that occupational exposure has ceased, the clinical onset of multiple myeloma has occurred within 20 years of cessation." 12 The applicant's appeal was heard by the AAT on 7 October 1998. She was represented by counsel. Before the AAT the applicant's case was that her husband had been exposed to paints and lacquers while working on aircraft. I was told by counsel that there was tendered on behalf of the applicant a statutory declaration by a person who, although he did not know Mr Keeley, could speak of the kind of work the latter was allegedly engaged in and its exposure to paints and lacquers. Mr Keeley's service records were tendered to establish that he was engaged in that sort of work. As already mentioned, the AAT did not proceed to an assessment of that evidence because it was accepted on behalf of the applicant that it could not be shown that Mr Keeley's experience met the requirements of par 5(b) of the second SoP, if that were applicable. The legislative framework 13 Under VEA s 13(1)(a) and (c), where the death of a veteran is war-caused the Commonwealth is liable to pay pensions by way of compensation to the dependants of the veteran in accordance with the Act. Death of a veteran shall be taken to be war-caused if the death arose out of, or was attributable to, any eligible war service rendered by the veteran: s 8(1)(b). 14 The Commission is to determine entitlement to a grant of pension: VEA s 19(3). A claimant dissatisfied with a decision of the Commission can apply for review by the VRB under VEA Pt IX Div 3. Where a decision of the Commission has been affirmed by the VRB, the claimant can apply to the AAT for a review "of the decision of the Commission that was so affirmed": s 175(1)(a). 15 In the course of determining whether Mr Keeley's death was war-caused the AAT had to consider whether, on the whole of the material before it, a reasonable hypothesis was raised connecting that death with the circumstances of the veteran's service: s 120(1) and (3), Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571. 16 For both the AAT hearing and decision there was "in force" an SoP (whether the first or second SoP) so the AAT could only find the applicant's hypothesis to be reasonable if the appropriate SoP "upholds that hypothesis": s 120A(3). The operation of SoPs is more fully discussed by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 95-98. 17 The RMA is established under VEA Pt XIA. Its members must be registered medical practitioners or medical scientists with at least ten years experience: s 196M. 18 SoPs are made by the RMA under s 196B(2). They are based on "sound medical-scientific evidence", which term is defined in s 5AB(2). Each SoP is to state the factors that must as a minimum exist and which of those factors must be related to service before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death with the circumstances of a veteran's operational service. The term "related to service" is defined in s 196B(14). The RMA can, after investigation, revoke an existing SoP and determine a new one: s 196B(8)(c).

Acts Interpretation Act s 50 20 AIA s 50 provides: "Where an Act confers power to make regulations, the repeal of any regulations which have been made under the Act shall not, unless the contrary intention appears in the Act or regulations effecting the repeal: (a) affect any right, privilege, obligation or liability acquired, accrued or incurred under any regulations so repealed; or (b) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any regulations so repealed; or (c) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act or regulations had not been passed or made." 21 VEA s 196D makes an SoP a "disallowable instrument" for the purpose of AIA s 46A. It was not disputed that s 50 thus applies to the repeal or revocation of an SoP. (It was not suggested there was any relevant distinction between repeal and revocation.) 22 I do not agree with the AAT's formulation of the present issue in terms of whether SoPs "can be categorised as procedural matters". AIA s 50 is applicable. The answer to the present problem must be found in the terms of that provision. The first question therefore is whether the repeal of the first SoP by the second SoP affected any "right" or "privilege" "acquired" by or "accrued" to the applicant under the first SoP. 23 Decisions of the High Court and the Full Court of this Court compel an affirmative answer. In Esber v Commonwealth (1992) 174 CLR 430 the High Court was concerned with an application before the AAT to review a decision refusing a claim for redemption of weekly payments of compensation made under legislation which had been repealed. The application for review by the AAT had been lodged prior to the commencement of the new legislation. The effect of the High Court's decision can perhaps be seen most clearly in the judgment of the dissentient (Brennan J) whose view did not prevail. His Honour said (at 448, citations omitted): "The appellant's application to the AAT invoked an administrative jurisdiction to review his application under s 49(1) [of the Compensation (Commonwealth Government Employees) Act 1971 (Cth)] for a redemption payment. Exercising an administrative jurisdiction, the A.A.T. determines applications for review on a rehearing de novo acting on the materials before it when it makes its determination. Where, on a rehearing de novo, the question for decision is whether an applicant should be granted a right, the law as it then exists is applied, not the law as it existed at an earlier time. By contrast, in a judicial proceeding brought to enforce an alleged right accrued at the time when the proceedings were instituted, the question for decision is determined according to the law existing when the proceedings were instituted unless statute otherwise provides." Later his Honour said (at 449): "The distinction between a judicial proceeding to enforce an accrued right and an administrative proceeding to determine whether a right should be granted is critical in this case. Clearly the appellant had no accrued right on 1 December 1988 to a redemption payment; the very purpose of the review by the A.A.T. which the appellant applied for was to obtain a right to a redemption payment. As the A.A.T. was bound to apply the law as it was at the time of the rehearing, it was bound to refuse the application." 24 However the majority (Mason CJ, Deane, Toohey and Gaudron JJ) held that in the circumstances of that case the operation of that principle was overridden by AIA s 8. (Section 8 deals with the repeal of Acts. Its terms are not relevantly different from s 50 dealing with the repeal of regulations.) Their Honours said (at 440-441, citations omitted): "It may not be possible to say of a person in the position of the appellant that he had a right to a favourable determination from the Tribunal. The Tribunal was required to stand in the shoes of the decision-maker (the delegate) and arrive at its own decision. In Drake, Bowen CJ and Deane J said of the Tribunal: 'The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.' But that is not to the point here. If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope J.A. in NSW Aboriginal Land Council v The Minister [The Winbar Claim]: 'The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.' Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely 'a power to take advantage of an enactment'. Nor was it a mere matter of procedure; it was a substantive right. Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, 'although that right might fairly be called inchoate or contingent'. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act." 25 Reference might also be made to the observation of Fox J in J R Exports Pty Ltd v Australian Trade Commission (1987) 14 FCR 161 at 163: "It is not possible to define an 'accrued right', any more than it is a 'right' but the notion which underlies the latter, when dealing with the present type of problem, is that there is something in the nature of a cause of action which has arisen, or is claimed to have arisen, before the repeal or amendment, in circumstances which would render it manifestly unjust for the repealing or amending Act to affect the situation adversely.

Keeley v Repatriation Commission

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