Thomas v Repatriation Commission

Which SoP? 9 The AAT determined Mr Thomas' application on the basis of the SoP which applied at the date of the respondent's decision to refuse Mr Thomas a pension, that is, 11 November 1996. The Veterans Review Board ("the Board"), on 7 August 1997, affirmed the decision of the respondent. The AAT made its decision on 2 May 2002. 10 The primary judge held that the AAT should have addressed the SoP which applied at the time of its decision. The relevant SoP was one which was made in 1999. It superseded an SoP which was made in 1995 and varied in 1996. The AAT applied the 1995 SoP as varied. 11 His Honour applied the judgment of the Full Court in Repatriation Commission v Gorton (2001) 110 FCR 321, [2001] FCA 1194. Gorton stands for the following approach: "(1) The AAT should first consider the SoP in place at the time of its decision.

(2) If there was no entitlement under that SoP it should then consider the SoP which was in force at the time of the respondent's decision to see if there was "an accrued right" which was preserved under that SoP."

12 The primary judge observed that the judgment of the Full Court in Repatriation Commission v Keeley (2000) 98 FCR 108, [2000] FCA 532 was to the same effect as Gorton. 13 The primary judge considered that the matter should be remitted to the AAT for further hearing or re-hearing according to law. On the central issue in this case, namely which was the correct SoP to apply, his Honour was plainly correct. This is enough to dispose of the appeal. However, we shall mention some of the other issues raised.

Other issues 14 Having decided that the AAT erred in not first considering the 1999 SoP. The primary judge said at [28] that: "I note, however that the 1995 SoP could not on its face, at least as the matter was presented to the Tribunal, have enabled Mr Thomas' circumstances to fit into the template of the 1995 SoP." (emphasis supplied)

(i) The respondent considered the claim by reference to the 1995 SoP and was unable to accept that the condition was war-caused.

(ii) The Board considered the claim by reference to the 1995 SoP as amended by the 1996 SoP, but evidence relevant to the claim was not presented to the Board.

(iii) There is an accrued right to have the Board or the AAT determine the claim by reference to the SoP in force at the time of the respondent's decision, if at the time of consideration before the Board or the AAT there is a new SoP which overtakes the one which was applicable at the time of the respondent's decision. (iv) There is no accrued right before the AAT to have the claim determined by reference to the SoP in force at the time of the Board's decision where the then current SoP has replaced one in force at the time of the respondent's decision.

Consideration of Appeal Grounds 16 No ground of appeal challenges his Honour's assessment that the AAT should have considered the claim by reference to the SoP in existence at the time of its decision. However, the appellant's written submission, under the second ground of appeal discussed at [21] to [24] below, asserted that the AAT was correct to apply the earlier SoP. That submission was confirmed orally by counsel for Mr Thomas. We reject it. We consider that Gorton and Keeley dictate that the AAT should have considered the SoP which applied at the date of its decision. No challenge was made to the correctness of either of those Full Court judgments. Although counsel for the appellant ultimately submitted that if the wrong SoP was applied it made no practical difference, it submitted it is nonetheless an error of law to apply the incorrect SoP. 17 The first ground of appeal took issue with the primary judge's statement of the test to be determined to see if an SoP was satisfied. At [11] to [13] of his judgment the primary judge said that: "11 The Full Court in Deledio indicated there is a four step process involved in addressing a claim such as the present. The Tribunal must first consider whether all the material pointed to a hypothesis connecting the condition with the circumstances of Mr Thomas's war service. If no such hypotheses arose, the application was to be dismissed. Once such a hypotheses did arise, the Tribunal had to determine whether there was a Statement of Principles in force applicable to the condition. Thirdly, if there was a Statement of Principles then in force it had to form the opinion whether the hypothesis raised is a reasonable one. As there described at 97: "It will do so if the hypotheses fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain 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. If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail." 12 The reasons why Statements of Principle determined by the Repatriation Medical Authority have that significance is explained in the reasons for judgment of Allsop J (with whom Emmett J agreed) in Repatriation Commission v Gorton (2001) 110 FCR 321, [2001] FCA 1194 at 335, [58]-[59] (Gorton). Finally, the Tribunal must decide under s120(1) whether it is satisfied beyond reasonable doubt that the condition is not war-caused. If it is not so satisfied, the claim must succeed. If it is so satisfied, the claim must fail. 13 In practical terms, as counsel for the Commission contended, in the present matter the issues could be reduced to two questions: (a) did the material before the Tribunal raise or point to a hypothesis connecting the condition with the service of Mr Thomas that was consistent with the relevant Statement of Principles, and

(b) was the Tribunal satisfied beyond reasonable doubt that the foundation for any hypothesis connecting the condition with the war service of Mr Thomas was displaced."

18 His Honour did not take issue with the four step approach in Deledio but considered that "in practical terms" he could re-state the rest by referring to two questions. His Honour was not in error in so doing, and in any event no practical consequence ensued. 19 It must be remembered that an appeal under s24 of the Federal Court of Australia Act 1976 (Cth) is one from a judgment of the Court constituted by a single judge and not against the reasons of the judge. A "judgment" under s4 of the Federal Court of Australia Act is defined to mean: "a judgment, decree or order, whether final or interlocutory, or a sentence". See Minister for Immigration & Multicultural & Indigenous Affairs v Sochorova [2002] FCAFC 365 at [10], per Spender, Drummond and Marshall JJ. See also Driclad Pty Ltd v Commissioner of Taxation (Cth) (1998) 121 CLR 45 at 64 and Landsdal v REI Building Society (1993) 41 FCR 421.

20 The first ground of appeal takes no issue with the order of the primary judge. It is without merit. 21 The second ground of appeal states that "His Honour erred in law in finding that there could not be an "accrued right" by virtue of a Statement of Principle more favourable to the Appellant at the time of the Board's decision."

22 This ground challenges the view expressed by his Honour and recorded at [15] at (iv) above. 23 Again, this ground of appeal takes issue with an observation of the primary judge and not with his order. His Honour expressed a view about the matter to assist the AAT when the matter returned to that body. However, it is up to Mr Thomas to seek to appeal from an adverse decision of the AAT in the future, which in some way, flows from his Honour's reasoning. 24 Indeed the AAT may not need to consider this aspect of the matter if the evidence before it fits within the template of the 1995 SoP. This ground of appeal is also without merit. 25 The third ground of appeal alleges that the decision of the AAT was overturned on a question of fact. Nothing could be further from the truth. It was overturned because the AAT did not consider the correct SoP. A proper comparison of the appellant's consumption of animal fat before and after his war service required such consumption to be measured by the same definition of "animal fat". 26 The fourth and fifth grounds of appeal relate to observations made by the primary judge about aspects of the state of the evidence before the AAT which touched on the second ground of respondent's appeal to the primary judge; see at [21] of his Honour's reasons. The primary judge dealt with the issue at [38] and [39]. However, the primary judge did observe at [38] that the issue was "largely a moot point" because of his conclusion on the first ground of appeal. It will be for the AAT on remittal to consider what his Honour said at [38] to [39] but it will be up to it to decide any relevant question of construction of an SoP on the evidence before it. The fourth and fifth grounds of appeal are also not made out. The only other ground of appeal was abandoned at the hearing.

Conclusion 27 For the foregoing reasons the appeal will be dismissed, with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Whitlam and Marshall.

Associate: Dated: 30 May 2003 Counsel for the Appellant: Mr D De Marchi

Solicitor for the Respondent: Australian Government Solicitor