Ogston v Repatriation Commission

Introduction 1 This is an "appeal" under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") from a decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal ("the Tribunal") constituted by the President of the Tribunal, Mathews J. The jurisdiction to hear and determine the appeal, being an appeal from the Tribunal constituted by a member who was a Judge, is vested in this Court constituted as a Full Court (s 44(3)(c)). 2 This appeal raises two issues. The first issue is whether a claim for a pension brought under Part II of the Veterans' Entitlements Act 1986 (Cth)("the Act"), made on or after 1 June 1994, is to be determined by reference to the Statements of Principles, if any, in force at the time of the decision on the claim under s 196B(2) of the Act. At the time that the applicant's claim for a pension was made, no relevant Statement of Principles had been determined under s 196B of the Act. However, a relevant Statement of Principles had been issued by the time that the claim was determined. 3 The second issue is whether, where the material before the Repatriation Commission, or other decision-maker acting in the place of the Repatriation Commission, raises a hypothesis connecting a veteran's injury, disease or death with the veteran's service which hypothesis is comprised of two or more sub-hypotheses, each of the sub-hypotheses must be upheld by a Statement of Principles or a determination of the Commission under s 180A(2) of the Act. 4 This second issue has been determined since the hearing of this appeal by the Full Court of this Court in McKenna v Repatriation Commission [1999] FCA 323. We respectfully agree with the reasons for decision given in that case. The Full Court in McKenna's case dismissed an appeal against the decision of Goldberg J, a decision which Mathews J regarded as binding on her in this matter. It follows that the present appeal cannot succeed so far as it challenges the decision of the learned President in this regard. 5 In what follows we are concerned only with the first issue identified above. Legislative Scheme 6 We repeat the following observations from the reasons for judgment of the Full Court in McKenna's case: "Section 120A of the Act, the terms of which, so far as they are presently relevant, are set out below, was introduced into the Act by the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth) ("the Amendment Act"). The Explanatory Memorandum in relation to the Bill for the Amendment Act indicates that the Amendment Act was intended, amongst other things, "to ensure a more equitable and consistent system of determining claims for disability pensions for veterans and their dependants." The Explanatory Memorandum contained the following statements: "The new provisions deal with the determination of claims for pensions made on or after 1 June 1994 by reference to Statements of Principles. They will still require certain claims to be determined on the basis of a "reasonable hypothesis standard of proof", but with questions of medical causation to be determined in accordance with the amendments … The initiative will see the establishment of the Repatriation Medical Authority. It has become apparent that lay tribunals do not deal with medical-scientific issues consistently and that the adversarial approach to fact finding applied in administrative tribunals is inappropriate for determining medical-scientific issues that call for detailed technical knowledge. The Repatriation Medical Authority will provide the appropriate forum for the resolution of technical medical-scientific issues. This will ensure that there will be consistency on medical-scientific issues at all levels of the determining system. The Authority will prepare Statements of Principles based on sound medical-scientific evidence that will exclusively state what factors related to service must exist to establish a causal connection between particular diseases, injuries or death and service. … This change is aimed at ensuring that medical opinions supported by little or no medical-scientific evidence do not prevail over the carefully developed mass of medical-scientific opinion." It seems plain enough that the enactment of the Amendment Act reflected legislative dissatisfaction with the then operation of s 120 of the Act, which addresses the standard of proof of, relevantly, a claim under Part II of the Act for a pension in respect of a veteran's incapacity from disease relating to the operational service rendered by the veteran. Section 120 relevantly provides as follows: "120(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. … (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. The manner of operation of s 120 before the enactment of the Amendment Act has been authoritatively considered on a number of occasions (see, for example, Bushell v Repatriation Commission (1992) 175 CLR 408; Byrnes v Repatriation Commission (1993) 177 CLR 564.) In Byrnes v Repatriation Commission, a case concerning injury rather than disease, the High Court stated at 571: "The position may be summarised as follows: (1) First, subsection (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, subsection (1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis." Section 120A of the Act has modified the operation of s 120 so far as claims made after 1 June 1994 are concerned. Section 120A, so far as is here relevant, provides: "120A (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) a claim under Part IV that relates to: (i) the peacekeeping service rendered by a member of a Peacekeeping Force; or (ii) the hazardous service rendered by a member of the Forces. (2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority: (a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or (b) has declared that it does not propose to make such a Statement of Principles. (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) a determination of the Commission under subsection 180A(2); that upholds the hypothesis. (4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of: (a) the kind of injury suffered by the person; or (b) the kind of disease contracted by the person; or (c) the kind of death met by the person; as the case may be."