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[2005] FCA 1399
Federal Court of Australia
2005-09-30
Edward P, Greenwood J
Original judgment source is linked above.
the applicant's notice of motion 42 One further question arose in the matter which was dealt with as a preliminary question. The hearing of the appeal was allocated a hearing date of Monday 26 September 2005 at 10.15am. That date had been allocated for some little while with directions in relation to the filing of submissions. On 14 September 2005, the applicant filed a notice of motion supported by an affidavit by which the applicant sought to adjourn the hearing of the appeal until a date after Monday 3 October 2005. On that date, at 2.00pm, the applicant will appear before the Administrative Appeals Tribunal in the hearing of a review of another decision by the Repatriation Commission in a matter Q501/2005. The applicant contends that the hearing of this appeal ought to be adjourned principally because a resolution of matter Q501/2005 before the AAT would be likely to resolve the present application. As I explained to Mrs Somerset, the present application is concerned with whether the AAT in reaching its decision did so in a way that involved an error of law having regard to the claim by Mr Somerset for an incapacity or disability pension, the basis for that claim, the disease relied upon and the question of whether there was a connection between Mr Somerset's disability and his service and whether the Statement of Principles upheld such a contention. It seemed to me that there was no proper basis for adjourning the present appeal by reason of any matter or factor alive in relation to matter Q501/2005 before the Administrative Appeals Tribunal on Monday 3 October 2005 at 2.00pm. 43 The applicant exhibited to an affidavit sworn 12 September 2005 an Index of Documents under the reference AAT Q2005/501 which involved Repatriation Commission Reasons for Decision dated 22 April 1977 comprising five pages and certain further pages including a document entitled Summary of Recent Medical Investigation. The matters principally before the AAT in this further application relate to Mr Somerset's cataract condition, asthma, lung complaints and other aspects of Mr Somerset's current disabilities. 44 Mrs Somerset has referred to a number of documents and articles dealing with aspects of Mr Somerset's medical condition which she proposes to use and rely upon in the proceedings before the AAT on Monday 3 October. No demonstrated purpose is served by adjourning the present application which deals with a quite specific question and the issues in the present appeal cannot be influenced by any decision the AAT might make in reviewing, on the merits, a further decision of the Repatriation Commission in relation to aspects of a further application by Mr Somerset. Accordingly, I refused to adjourn the hearing of the present appeal.
proposed orders 45 I will make the following orders. The notice of motion filed by the applicant on 14 September 2005 is dismissed. The application by way of appeal from the decision of the Administrative Appeals Tribunal made on 15 October 2004 is dismissed. There will be no order as to costs.
I certify that the preceding forty-three (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.
Counsel for the Applicant: The applicant was self-represented and leave was given for the applicant's wife, Mrs Joy Somerset, to appear on the applicant's behalf.
Solicitor for the Applicant: The applicant was self-represented.
Solicitor for the Respondent: Ms Anna Bishop Australian Government Solicitor
Somerset
Repatriation Commission
consideration of the issues 23 The Statement of Principles is designed to set out known or proved medical-scientific facts against which the veteran's claim must be measured. These principles derive not only from a construction of the provisions of the V E Act but from previous consideration of the relevant provisions by the Court. See, for example, Repatriation Commission v. Deledio (1998) 83 FCR 82 at 95-96; Deledio v Repatriation Commission (1997) 25 AAR 396 at 411-412 and Repatriation Commission v Wedekind [2000] FCA 649. 24 Section 9 of the V E Act sets out the circumstances when an injury suffered or a disease contracted by a veteran shall be taken to be a war-caused injury or a war-caused disease. Section 9(1)(b) provides, like s.196B(14)(b), that a disease contracted by a veteran shall be taken to be a war-caused disease if "the disease arose out of, or was attributable to, any eligible war service rendered by the veteran". Section 9(1)(e) brings about the same result if the disease contracted by the veteran was "suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service" and in the opinion of the Repatriation Commission, the disease was "contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, after the veteran contracted the disease". 25 No specific discussion took place before the Veterans' Review Board or the AAT as appears from the papers in relation to s.9 of the V E Act. Rather, the question was whether in deciding the matters relating to the claim for an incapacity pension pursuant to s.13, the test of reasonable satisfaction (in respect of non-operational service) required by s.120(4) was met having regard to the evidence and the statutory effect of the Statement of Principles determined by the Authority under s.196B(3). The elaboration in s.196B(14), however, essentially replicates some of the causal relationships found in s.9(1) of the V E Act. 26 In simple terms, where a veteran makes a claim for an incapacity pension for non-operational war service, the applicable Statement of Principles prescribes the connection that must be established between the disease (in this case Meniere's disease) relied upon and the eligible war service of Mr Somerset, to the reasonable satisfaction of decision-maker. Mr Somerset's claim for an incapacity pension in respect of the effects attributable to Meniere's disease would necessarily fail if the Statement of Principles does not uphold, by reference to the factors, the applicant's contention that Meniere's disease was, on the balance of probabilities, connected with his eligible war service. (See, for example, Brew v Repatriation Commission (1999) FCA 1246). 27 The Repatriation Medical Authority considered the relationship factors and determined a Statement of Principles by Instrument No. 78 of 2001 concerning Meniere's disease. In the Statement of Principles, the Authority determined that the only factor that can be related to: (a) the cause of; or (b) material contribution to; or (c) aggravation of, Meniere's disease and which can be related to relevant service is that set out in clause 4 of the Statement. Clause 4 says that the factor which must exist is "inability to obtain appropriate clinical management for Meniere's disease", before it can be said that a person's relevant service has caused or materially attributed to or aggravated the disease, on the balance of probabilities. 28 The AAT in reaching its decision considered the statutory provisions relating to the claim and the standard of proof to be applied. The AAT concluded that it must determine to its reasonable satisfaction the question whether Mr Somerset suffers from war-caused Meniere's disease on the balance of probabilities. The AAT considered the provisions I have discussed and determined that where there is a Statement of Principles made under s.196B(3) of the V E Act, the AAT must first determine whether to its reasonable satisfaction the material put before it raises a connection between Mr Somerset's disability and his period of service and that it must then go on to decide whether the applicable Statement of Principles upholds the contention that the veteran's disability is, on the balance of probabilities, connected with his service. 29 In approaching the legal test to be applied, the construction of the provisions of the V E Act and the role of the Statement of Principles, the Tribunal did not make any error of law. 30 In considering the first question of whether there was evidence raising or demonstrating a connection between Mr Somerset's disability and his period of war service, the AAT considered a body of medical evidence and opinions from Dr R Harrington, an Ear Nose and Throat Specialist who had seen the applicant on occasions from November 1987 and who provided a number of written medical reports (T4/18/22, Exhibits R1, R2 and R3); Dr Wark, who examined the applicant on 29 June 1976 following a claim for loss of smell and hearing, Dr F Anning, an Ear Nose and Throat Specialist who saw the applicant on 10 December 2002 and who provided two written reports dated 13 December 2002 (Exhibit R4) and 6 May 2003 (Exhibit R5) and Dr P Grant, a Senior Medical Officer - Compensation, who reviewed the documentary evidence in the case. 31 In his written report (Exhibit R4), Dr Anning recited some of the physical complaints made by Mr Somerset and expressed the opinion that there is absolutely no connection between Mr Somerset's period of service and his vertiginous attacks. Dr Anning concluded that "certainly, his (Mr Somerset's) hearing loss may well have been due to a blast injury. Recent studies of Meniere's [sic] disease indicate that it is due to dysfunction of the secretion of hormone saccin in the endolymphatic sac. The cause is entirely unknown." Dr Anning concluded in summary that he considered Mr Somerset's hearing loss would be partly attributable to noise, exposure and also to aging. He says, "I do not think that the giddiness is in fact due to Meniere's [sic] disease and I do not think it has anything due to his service in the armed forced". 32 Dr P Grant conducted a review of the documentary evidence and said that he was unable to find any references to tinnitus, hearing loss or vertigo in the service medical records including the final Medical Board record of 6 January 1944. Dr Grant rejected the notion that either hearing loss or tinnitus during eligible service by Mr Somerset were the first manifestation of Meniere's disease. 33 The AAT considered the reports of Dr Harrington who had seen Mr Somerset from November 1987. Dr Harrington's view is that the most likely cause of the applicant's symptoms of recurrent giddiness and associated aural symptoms is Meniere's disease and that the development of this disease commenced early in 1997. Dr Harrington's reports are considered at paragraph [24] of the Reasons of the AAT. 34 Having evaluated all of those reports, the Tribunal whilst recognising and finding that Mr Somerset suffered a noise trauma during his service in mid-1943 at Shepparton in the way described by him, concluded that the weight of the medical evidence supported the view that a noise trauma such as the Shepparton incident is not a recognised factor giving rise to a causal connection between the trauma and the onset or development of Meniere's disease. Accordingly, on the basis of the medical evidence, the AAT was not satisfied that the gelignite explosion caused Meniere's disease. 35 The Tribunal then considered whether Mr Somerset was suffering from Meniere's disease during his period of service notwithstanding that no causal connection was found to exist between such a condition (if it existed) and the Shepparton event in 1943 particularly with a view to determining the evidence going to clause 4 of the Statement of Principles. Based upon an assessment of the service records and the evidence of Dr P Grant, the Tribunal concluded that there is no medical evidence supporting the onset of symptoms of the disease or the effects of the disease during the period of Mr Somerset's service. The AAT concluded that at the earliest, there may have been evidence of symptoms which might have given rise to a diagnosis of Meniere's disease at its earliest in 1947. On the basis of that evidence, the AAT was not satisfied that "an inability to obtain appropriate clinical management for Meniere's disease" existed in the circumstances of Mr Somerset's relevant service. 36 It may be that in some circumstances an inability to obtain appropriate clinical management for a disease is a function of a failure to diagnose the existence of the condition. In those circumstances, the factor (in this case clause 4) that must exist might not be demonstrated simply because the symptoms or effects of the disease were not properly identified as referable to the disease. In this case, the evidence before the Tribunal suggested that the Shepparton event did not cause the disease and that there were no symptoms manifesting a basis for believing that Mr Somerset had the disease during the period of service. 37 Having regard to all of the medical evidence, the Tribunal made the finding that it could not be reasonably satisfied that Mr Somerset was a veteran who had become incapacitated from a war-caused disease. There was material before the AAT which was capable of supporting the decision on the merits. 38 Accordingly, in considering the material, I have concluded in answer to the two questions I extrapolated from the formulation of the ground of appeal recited at paragraph [7] that there is no error of law demonstrated in the approach adopted by the AAT and nor is there any error in the sense that the Tribunal came to a decision which was unsupported by any evidence. 39 In my discussion with Mrs Somerset, the majority of the remarks addressed by her in criticising the decision of the AAT were directed to the failure, to her mind, to reach a decision on the facts favourable to Mr Somerset based upon what Mrs Somerset regarded as evidence (and clear evidence) establishing the entitlement to an incapacity pension. In other words, Mrs Somerset strongly contested the factual findings and the AAT's evaluation of the evidence and, in particular, the medical evidence. As I pointed out to Mrs Somerset the question for this Court is whether there was an error of law. That is why I have sought to extrapolate and frame two questions to deal with what might legitimately be inherent in the ground of appeal formulated by the applicant. However, on this question of the role of the Federal Court, the observations of Brennan J in Waterford v Commonwealth (1987) 71 ALR 673 at 689 should be kept in mind:
(1998) 83 FCR 82
(1987) 71 ALR 673