King v Repatriation Commission

STATUTORY FRAMEWORK 8 To determine whether a veteran is entitled to a pension due to a 'war-caused' disease, the statutory framework under the VEA must be considered. 9 Section 13 of the VEA prescribes the circumstances where a veteran is eligible for a pension. Section 13 relevantly provides: Eligibility for pension (1) Where: (a) … (b) a veteran is incapacitated from a war-caused injury or a war-caused disease; the Commonwealth is, subject to this Act, liable to pay: (c) … (d) in the case of the incapacity of the veteran--pension by way of compensation to the veteran; in accordance with this Act. 10 Section 9 of the VEA concerns 'war-caused injuries or diseases' and relevantly states: War-caused injuries or diseases (1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if: (a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; (b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; … (d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease; … (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 accident--that incapacity shall be deemed 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) if 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. 11 Section 120 of the VEA stipulates the standard of proof required upon an application being made by a veteran for compensation. Section 120 relevantly states: SECTION 120 Standard of proof (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 or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Note: subsection is affected by section 120A. … (3) In applying subsection (1) or (2) 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 or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-caused disease; or (c) that the death was war-caused or defence-caused; 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, disease or death with the circumstances of the particular service rendered by the person. Note: subsection is affected by section 120A. 12 As observed in the above note to ss 120(1) and 120(3), s 120A effects the operation of s 120 of the VEA. Section 120A was introduced by the Veterans' Affairs Legislation Amendment Act 1994 (Cth) ('the amending act'). Section 120A of the VEA relevantly provides: Reasonableness of hypothesis to be assessed by reference to Statement of Principles (1) This section applies to any of the following claims made on or after 1 June 1994: (a) a claim under Part II that relates to the operational service rendered by a veteran; (b) … Note 1: Subsections 120(1), (2) and (3) are relevant to these claims. … (3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196B(2) or (11); or (b) … that upholds the hypothesis. Note: See subsection (4) about the application of this subsection. 13 As part of the legislative amendments introduced by the amending act, Part XIA - The Repatriation Medical Authority ('RMA') was introduced by s 196A of the VEA. The main function of the RMA is 'to determine Statements of Principles' for the purposes of the VEA (s 196B(1)). 14 Section 196B(2) of the VEA relevantly provides: Determination of Statement of Principles (2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to: (a) operational service rendered by veterans; or (b) … (c) ... (caa) … (ca) … the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out: (d) the factors that must as a minimum exist; and (e) which of those factors must be related to service rendered by a person; before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service. … Note 3: For factor related to service see subsection (14). 15 Pursuant to s 196B(2) of the VEA, a Statement of Principles has been made in respect of prostate cancer, dated 19 September 2005, and is entitled 'Statement of Principles concerning Malignant Neoplasm of the Prostate' ('the SOP'). Clauses 4 and 5 of the SOP are of significance in these proceedings and provide: Clause 4 Subject to clause 6, at least one of the factors set out in clause 5 must be related to the relevant service rendered by the person. [Emphasis added] Clause 5 The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate or death from malignant neoplasm of the prostate with the circumstances of a person's relevant service is: [Emphasis added] … (c) increasing animal fat consumption by at least 40% and to at least 50gm/day, and maintaining these levels for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate; or 16 'Relevant service' is defined in clause 8 of the SOP to include 'operational service under the VEA'. 17 Section 196B(14) of the VEA defines the phrase 'related to service' and relevantly provides: (14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if: (a) … (b) it arose out of, or was attributable to, that service; or (c) … (d) it was contributed to in a material degree by, or was aggravated by, that service; or (e) …. (f) in the case of a factor causing, or contributing to, a disease--it would not have occurred: (i) but for the rendering of that service by the person; or (ii) but for changes in the person's environment consequent upon his or her having rendered that service; or (g) …

THE TRIBUNAL'S DECISION 18 The primary question before the Tribunal was whether the applicant's prostate cancer and erectile dysfunction was related to his operational service in the Air Force. 19 Pursuant to ss 120(1) and 120(3) of the VEA (set out above at [11]), if the appellant's claim was to be negated, the Tribunal had to be satisfied, beyond reasonable doubt, that there was no sufficient ground for determining that the applicant's prostate cancer and erectile dysfunction were related to his service in the Air Force. 20 The Tribunal at [8] of its decision referred to the procedure set out in Repatriation Commission v Deledio (1998) 83 FCR 82 to determine the reasonableness of a hypothesis. The Tribunal summarised the requirements as follows: (i) determine whether all of the material points to a hypothesis connecting the injury with the circumstances of the veteran's service; (ii) if so, ascertain whether there is in force a relevant SOP; (iii) if so, form an opinion as to whether the hypothesis is reasonable, which it will be only if it conforms with an applicable SOP; and (iv) consider whether it is satisfied, beyond reasonable doubt, that the veteran's incapacity did not arise from a war-caused injury. 21 The Tribunal considered that the SOP sets out the factors, at least one of which must exist and be related to the applicant's service, before it could conclude that a 'reasonable hypothesis had been raised connecting a condition or conditions with the veteran's relevant service'. 22 The Tribunal stated at [23] that for a hypothesis to be reasonable, 'there must be material before the Tribunal that raises all of the essential elements in the relevant SOP' and cited Repatriation Commission v Hill (2002) 69 ALD 581. The Court interposes that, in respect of the relevant SOP, such a test must be applied with caution. As considered hereunder, the Tribunal erred by conflating two essential, but separate, considerations. 23 In respect of the 'specified period', the Tribunal at [24] referred to the fact that 'relevant service' for the purposes of the SOP included, inter alia, 'operational service under the VEA'. 'Operational Service' is defined in s 5C of the VEA as having the meaning in ss 6 to 6F of the VEA. 24 It was not in contest before this Court and the Tribunal found that the applicant's operational and therefore 'relevant service' comprised his service in Malaysia and Singapore from October 1955 to August 1957 and September 1957 to May 1958. 25 As to the material pointing to an increase in animal fat consumption, there was evidence before the Tribunal of Dr David Mann, a dietician with 30 years experience. Dr Mann concluded that the link between on-service consumption of animal fat and post-service intake was 'extremely tenuous' and it was 'highly speculative' to imply that the applicant's exposure to animal fat intake during his service could lead to a 'lifetime of changed habits and increase of animal fat'. 26 Significantly upon accepting the evidence of Dr Mann, the Tribunal found that the applicant's intake only increased during his operational service by 18% and was accordingly less than the 40% required by clause 5(c) of the SOP. At [31] and [32] of its decision the Tribunal said: 31. Mr King's evidence was that conditions at home, prior to enlisting, were modest. By comparison, service afforded a change from rations and a better diet generally at the same time that he was maturing. He spent only a year living on the base in Singapore, after which he lived off base with his wife. The evidence is that she was English and had always cooked food similar to that at the RAF base, and there is no evidence that her cooking changed over time. 32. Dr Mann's evidence is that links between a period of service and life long dietary habits are tenuous and highly speculative and, on the material before us, any link between Mr King's service and his lifelong preference for fatty foods and ice cream is also tenuous at best. 27 At [33] the Tribunal observed: 33. For a hypothesis linking a condition to service to be reasonable, there must be a casual, and not merely temporal, connection to service: Roncevich v Repatriation Commission [2005] HCA 40. We are not satisfied that the material before us points to more than a temporal connection between Mr King's increased intake of animal fat and his operational service. 28 At [34] the Tribunal concluded: 34. … there is no sufficient ground for finding that Mr King's prostate cancer is war-caused. As a determination that his erectile dysfunction is war-caused relies on finding that his prostate cancer is war-caused, that claim also must fail.

THE APPEAL 29 The applicant's Notice of Appeal was filed on 12 May 2011. At the hearing leave was given to the applicant to rely upon an Amended Notice of Appeal dated 29 July 2011. Such Amended Notice of Appeal raises three issues to be determined. 30 The first issue raises the question whether the Tribunal erred in its application of the words 'increasing animal fat consumption by at least 40%' contained in clause 5(c) in the SOP. The second issue is whether the Tribunal was required to apply, and if so, correctly applied s 196B(14) of the VEA, when considering whether the applicant's prostate cancer was related to his operational service. The third issue raised in the Amended Notice of Appeal is whether the Tribunal made impermissible findings of fact in the first three stages of the Deledio process.

Applicant's Submissions 31 The applicant submits that there was material before the Tribunal which pointed to a hypothesis connecting the prostate cancer to the applicant's service thereby satisfying the first inquiry nominated in Deledio (set out in [20] above). Further, the applicant relies upon the fact that there is an applicable SOP which satisfies the second requirement outlined in Deledio. 32 The applicant submits that the next stage to be approached under Deledio is whether the hypothesis was 'reasonable'. Deledio establishes that the hypothesis will be reasonable if it: 'contain[s] one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service'. The applicant relies upon Repatriation Commission v Hill at [55] in which the Full Court observed that 'a hypothesis connecting a disease with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SOP…'. 33 The applicant submits that the third step of the Deledio process involves two discrete stages, namely to determine whether one or more factors in the SOP exists, then to decide whether such factor is related to the relevant service of the veteran. The applicant contends that the Tribunal at [27] erroneously conflated these two tasks. The applicant submits that the Tribunal at [27] 'improperly imported' into the factor contained within clause 5(c) a requirement that the 40% increase must be assessed from the commencement of the applicant's relevant service, that is, the applicant's operational service. 34 The applicant submits that clause 5(c) does not specify when the change in animal fat consumption must occur, other than within a 25 year period from the clinical onset of such condition. The applicant submits that there was material before the Tribunal which raised each of the elements of clause 5(c), namely an increase in animal fat consumption by at least 40% when considered over the period of the applicant's service, including his operational service and non-operational service. 35 The applicant submits that the Tribunal erred because rather than determining whether the applicant's increased consumption of animal fat was related to service, it was required to determine whether the factor itself, i.e. clause 5(c), was related to the relevant service. It is submitted that the errors are demonstrated in the Tribunal's reasons at [5] and [23] of its reasons where the Tribunal stated: 5. We have to determine whether Mr King's prostate cancer is related to his service. This requires us to determine: (i) whether Mr King increased his consumption of animal fat to the degree required in order to satisfy the relevant Statement of Principles (SOP); and (ii) if so, whether his increased consumption is related to his service. … 23. For a hypothesis to be reasonable, there must be material before the Tribunal that raises all of the essential elements in the relevant SOP: Repatriation Commission v Hill [2002] FCAFC 192. In this case, there must be material pointing to an increase in intake of animal fat by the specified amount, over the specified period, and related to Mr King's relevant service.

Respondent's Submissions 36 The respondent submits that the Tribunal correctly summarised the 'template' referred to in Deledio at [5], [23] (reproduced at [20] above) and [27] of the Tribunal's decision (reproduced hereunder at [40]). 37 The respondent further submits that the Tribunal was correct in its finding that the requisite 40% increase must be assessed solely by reference to the applicant's operational service, and any prior non-operational service was not relevant for the application of the SOP.

Consideration 38 The evidence of Dr Mann before the Tribunal estimated that the applicant's average daily animal fat consumption was as follows: Prior to enlistment 77 gms First 5 years of service 100.5 gms Singapore/Malaya service 118 gms Post service: 119 gms

39 Dr Mann calculated that the overall increase in animal fat consumption from the period prior to enlistment to post-enlistment was 54.5%. 40 At [26]-[27] of its decision the Tribunal said: 26. It is true that Dr Mann's evidence establishes an increase of 54.5% over the period contended for. However, the difficulty with this contention is that it ignores the period of five years service immediately prior to Mr King's operational service. The evidence is that, in that period, his intake had already increased to an average 100.5gms per day. The subsequent increase during his operational service was approximately 18%. 27. We do not accept the approach contended for. In our view, the only sensible approach is to consider what change, if any, occurred once he started undertaking operational service. It cannot sensibly be contended that his operational service had a retrospective causal effect. 41 The Tribunal then considered the alternative approaches urged by the applicant, and said at [28] and [29]: 28. Even if we accept that it is not necessary to measure the increase from the period immediately prior to operational service, the other difficulty with this contention is that selecting the period pre-service is entirely arbitrary; the comparison might just as validly be made with a time when Mr King was a very young child. 29. Alternatively, it is contended for Mr King that the increase might be measured by reference to the period following his operational service. In principle, there can be no objection to this approach but the difficulty for Mr King is that the evidence points to an increase of, at most, less than 1% following his operational service. There is no evidence, and no suggestion, that his intake of animal fat increased by any more at any later time. 42 The Tribunal then observed at [30]: 30. Even if the correct approach is to compare Mr King's increase in animal fat intake pre- and post-service, we are not satisfied that the material points to it being materially related to his operational service. 43 The Tribunal observed that the SOP provides that a reasonable hypothesis will be raised if a connection is established between the 40% increase in animal fat consumption and the 'relevant service'. 44 Clause 8 of the SOP defines 'relevant service' to include various types of service. In this instance, the 'relevant service' is confined to the applicant's operational service. As stated above at [3] the applicant's operational service was from October 1955 to August 1957 in Malaysia and from September 1957 to May 1958 in Singapore. 45 The increase in the applicant's animal fat consumption which occurred during applicant's operational service was only 18%. Due to this finding and the Tribunal's conclusion that the applicant's pre-operational service was irrelevant for the purposes of the SOP, the Tribunal found that clause 5(c) was not satisfied. In reaching such finding, the Court finds that the Tribunal conflated the requirements of clauses 4 and 5. 46 The correct application of the SOP proceeds in the following manner. Clause 5 sets out the factors that must 'as a minimum exist before it can be said that a reasonable hypothesis has been raised' connecting the applicant's prostate cancer with his relevant service. Accordingly the investigation must first be directed to the question whether any one or more of the several factors itemised in clause 5 of the SOP are satisfied or 'raised'. Only when that inquiry has been determined in favour of a veteran, does the inquiry then shift to the threshold issue, namely whether that factor is related to service. 47 Significantly the factor contained in clause 5(c) of the SOP, upon which the claim was based and which is the only factor for consideration in these proceedings, does not specify that the 40% increase must be assessed only before and after the applicant's operational service. 48 The Tribunal did not address the two stages independently resulting in the possibility that it conflated the process or did not pay sufficient regard to the very specific requirements of the SOP. 49 As shown in the table set out at [38] above the Tribunal was presented with evidence demonstrating that the applicant had increased his animal fat consumption by over 40% taking into account both his operational and non-operational service. 50 It follows that the Tribunal erred in failing to find that clause 5(c) was raised. The Tribunal ought to have determined first if the requirements of clause 5(c) existed before considering whether such factor was 'related to' the relevant service of the applicant as required by clause 4 of the SOP. 51 This conclusion is not the end of the inquiry that the Tribunal should have undertaken. The Tribunal should then have considered the second stage in the process, namely whether the factor contained in clause 5(c) was 'related to' the applicant's relevant service. During this stage, the Tribunal was required to apply the provisions of s 196B(14) of the VEA, which will be discussed in detail below. 52 In summary the Court agrees with the applicant that the process that the Tribunal was to apply consists of two stages. The first stage is to determine whether a factor set out in clause 5 of the SOP is raised on the evidence. Only after that inquiry has been made does the decision-maker have to determine whether the factor is related to the relevant service as required by clause 4. 53 It follows that the Court upholds the applicant's first ground of appeal, namely that the Tribunal erred in its application of clause 5(c). For completeness, the Court will consider the applicant's second ground of appeal.

Applicant's Submissions 54 The applicant submits that the Tribunal was required to consider s 196B(14) of the VEA (set out at [17] above) when determining whether clause 5(c) was 'related to service' as required by clause 4 of the SOP. The applicant submits that s 196B(14) of the VEA prescribes the occasions when it can be said that there is a relationship between a veteran's operational service and his or her disease or illness. The applicant says that s 196B(14) of the VEA was neither referred to nor applied by the Tribunal.

Respondent's Submissions 55 The respondent submits that the Tribunal was not required to refer expressly to s 196B(14) of the VEA. The respondent further submits that s 196B(14)(d) was the only subsection capable of applying to the applicant's case and the Court can infer from the Tribunal's phrase 'materially related' in [30] of its decision (set out at [42] above), that the Tribunal did in fact consider that subsection.

Consideration 56 After addressing whether the factor contained within clause 5(c) of the SOP was raised, the Tribunal was then required to consider whether such factor was related to the applicant's operational service, as required by clause 4 of the SOP. The consideration of clause 4 of the SOP is to be assessed by reference to the provisions of s 196B(14) of the VEA. 57 In Gilkinson v Repatriation Commission [2011] FCAFC 133, the Full Court of the Federal Court recently interpreted s 196B(14) of the VEA. The issue at appeal was whether the primary judge erred in finding that s 196B(14)(d) of the VEA is broader in its scope than s 196B(14)(b) and for this reason the Tribunal did not need to consider both subsections when considering whether the raised factor of the SOP in question was related to the veteran's operational service. 58 In Gilkinson the Court unanimously found that the primary judge erred in her Honour's construction of s 196B(14) and her Honour's finding that s 196B(14)(b) was subsumed in s 196B(14)(d). 59 The Full Court however, delivered separate judgments. Perram J at [12] found: 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). 60 In Gilkinson Nicholas and Robertson JJ said at [29]-[30]: 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. 61 The Court is unable to accept that the Tribunal's finding at [30] (set out at [42] above) necessarily resulted from the Tribunal's consideration of s 196B(14)(d). Even if the Tribunal by use of the words 'materially related' demonstrated its consideration of whether the disease was 'contributed to in a material degree by' as stated in s 196B(14)(d), such subsection also requires the consideration of whether the factor was 'aggravated by' the veteran's operational service. There is no reference in the Tribunal's decision to such consideration. 62 Further, consistent with the Full Court's interpretation of s 196B(14), the Tribunal was required to also consider whether s 196B(14)(b) applied in the circumstances as well as s 196B(14)(d). There is no evidence to suggest that the Tribunal turned its mind to the possible application of s 196(4)(b). 63 As found by Bromberg J in Alexander v Australian Community Pharmacy Authority (2010) 265 ALR 424 at [56]: 56. There is ample authority for the proposition that a failure to include a matter in a statement of reasons under s 13 may justify a Court inferring as a fact that the matter was not taken into account: ARM Constructions v Commissioner of Taxation (1986) 10 FCR 197 at 205 per Burchett J; approved by a Full Court in Faulkner v Conwell (1989) 21 FCR 41 at 47; Turner v Minister for Immigration (1981) 35 ALR 388 at 392 per Toohey J; in relation to a statement of reasons provided under the Migration Act 1958 (Cth) ('the Migration Act') - Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10] per Gleeson CJ, at [36] and [44] per Gaudron J, at [69] and [75] per McHugh, Gummow and Hayne JJ; in relation to the requirement to provide reasons under the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act') see Repatriation Commission v O'Brien (1985) 155 CLR 422 at 446 per Brennan J. 64 Although Bromberg J was specifically considering a matter reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth), the principle applies by analogy to the Tribunal's failure to refer to s 196B(14) of the VEA.

CONCLUSION 65 It follows that the Tribunal erred both in its application of clause 5(c) of the SOP and by failing to consider adequately the provisions of s 196B(14) of the VEA. Accordingly, the Court upholds the applicant's appeal and orders that the proceeding be remitted to the Tribunal to be determined again according to law. 66 Whether the two errors of the Tribunal in its approach to the applicant's claim as considered above will ultimately lead to a finding in favour of the applicant is not a matter for determination by this Court. 67 The applicant raised a third ground of appeal as referred to in [30] above. In view of the findings made in the first and second grounds, it is unnecessary to determine the third ground of the applicant's appeal. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.