Mervyn Leonard McMilliam & Ors v Repatriation Commission [1998] FCA 127 (27 February 1998)

Last Updated: 16 March 1998

FEDERAL COURT OF AUSTRALIA

VETERANS AFFAIRS - claims for pensions lodged with Repatriation Commission ("Commission") - existing statement of principles applicable to claims - separate review of statement of principles being conducted - whether Commission prevented from deciding claims until review of statement of principles completed - proper construction of s 120A(2) of the Veterans' Entitlements Act 1986 (1986) (Cth).

Veterans' Entitlements Act (Cth) ss 120, 120A, 196B, 196G

Veterans Affairs (1994-95) Budget Measures Legislation Amendment Act 1994 (Cth)

McMillan v Repatriation Commission (1997) 25 AAR 123, discussed

McMillan v Repatriation Commission (Northrop J, 11 July 1997, unreported), discussed

Repatriation Commission v Bey, [1997] FCA 1347; (1998) 149 ALR 721, considered

Deledio v Repatriation Commission (1997) 25 AAR 396, considered

Sherman v Repatriation Commission (Full Court, 6 June 1991, unreported), considered

MERVYN LEONARD McMILLAN, MIRIAM EILEEN CARTER, MARGARET MAUDE TELFORD, MARY FRANCES WALHOUSE, MELVA FLORENCE HOPGOOD, JEAN MARY THOMSON and LEONARD JAMES VANNER v REPATRIATION COMMISSION

VG 543 of 1997

MARSHALL J

MELBOURNE

27 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 543 of 1997

BETWEEN:	MERVYN LEONARD McMILLAN First Applicant MIRIAM EILEEN CARTER Second Applicant MARGARET MAUDE TELFORD Third Applicant MARY FRANCES WALHOUSE Fourth Applicant MELVA FLORENCE HOPGOOD Fifth Applicant JEAN MARY THOMSON Sixth Applicant LEONARD JAMES VANNER Seventh Applicant
AND:	REPATRIATION COMMISSION Respondent
JUDGE:	MARSHALL J
DATE OF ORDER:	27 february 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 543 of 1997

BETWEEN:	MERVYN LEONARD McMILLAN First Applicant MIRIAM EILEEN CARTER Second Applicant MARGARET MAUDE TELFORD Third Applicant MARY FRANCES WALHOUSE Fourth Applicant MELVA FLORENCE HOPGOOD Fifth Applicant JEAN MARY THOMSON Sixth Applicant LEONARD JAMES VANNER Seventh Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	MARSHALL J
DATE:	27 february 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

This matter is an appeal from seven decisions ("the relevant decisions") of the Veterans' Appeals Division of the Administrative Appeals Tribunal ("AAT") constituted by Senior Member Handley. On 2 September 1997 the AAT refused an application for an adjournment and affirmed the relevant decisions under review.

BACKGROUND

In the majority of the matters which led to this appeal, claims for a pension have been lodged by widows of deceased veterans. In a minority of matters the claims were lodged by the veterans themselves. Six of the matters concerned a claim based on operational service and one was based on service within Australia. No material difference arises in the application of the relevant law to the claim based on service in Australia. The focus of the appeal was on the legislative provisions that applied in the context of the six claims that related to operational service.

Each claim was considered by a delegate of the respondent and by the Veterans Review Board ("VRB"). The claims were rejected. Applications for review were lodged with the AAT. Realising that the claims were likely to fail, under the current Statement of Principles ("SoPs") which applied to the injuries or diseases relevant to each claim, the applicants requested that the AAT adjourn each application before it pending reviews of the relevant SoPs being conducted by the Repatriation Medical Authority ("the RMA") and the Specialist Medical Review Council ("SMRC").

On 22 April 1997, Deputy President McDonald declined to accede to a request to adjourn the applications before the AAT. His decision is now reported. See McMillan v Repatriation Commission (1997) 25 AAR 123. The applicants purported to appeal from the decision of McDonald DP to this Court. On 11 July 1997 Northrop J held that the appeal was incompetent as it did not relate to a final decision of the AAT. See McMillan v Repatriation Commission (Northrop J, 11 July 1997, unreported).

The AAT resumed its hearing of the applications on 2 September 1997. On that day Senior Member Handley in an ex-tempore decision declined to grant the adjournments sought and affirmed the decisions of the respondent's delegate and the VRB.

LEGISLATIVE CONTEXT

Section 120 of the Veterans' Entitlements Act 1986 (Cth) ("the Act") deals with the standard of proof required for the making of a determination inter alia that an injury or disease was war-caused. Section 120(3) of the Act requires the respondent to consider whether "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 appropriate application of s 120 of the Act has recently been authoritatively determined. In Repatriation Commission v Bey, [1997] FCA 1347; (1998) 149 ALR 721 the following was said in the joint judgment of Northrop ACJ, Sundberg, Marshall and Merkel JJ:

"The method of applying s 120(1) and (3) is now well established:

1. One commences with sub-s (3). The first step is to identify the hypothesis said to establish the casual link between the veteran's eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact.

2. The second step under sub-s (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the `raised facts') and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision maker must identify the facts said to point to it.

3. Whether a hypothesis is reasonable is a question of fact. The decision maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point.

4. If the decision maker concludes that the material raises a reasonable hypothesis, the third step is reached. Sub-section (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or 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."

However the judgment in Bey was decided on the basis of a situation that applied prior to the enactment of s 120A of the Act in 1994 as a result of the Veterans Affairs (1994-95) Budget Measures Legislation Amendment Act 1994 ("the 1994 Act"). The background to the 1994 Act is usefully set out in the judgment of Heerey J in Deledio v Repatriation Commission (1997) 25 AAR 396, 403 - 407.

Section 120A of the Act provides as follows:

"Reasonableness of hypothesis to be assessed by reference to Statement of Principles

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.

Note 1: Subsection 120 (1), (2) and (3) are relevant to these claims.

Note 2: For `peacekeeping service', `member of a Peacekeeping Force', `hazardous service' and `member of the Forces' see subsection 5Q (1A).

(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.

Note: See subsection (4) about the application of this subsection.

(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."

Section 196B of the Act, which is referred to in s 120A of the Act, empowers the RMA to determine SoPs. Section 196B of the Act provides that:

"Functions of Authority

196B (1) This section sets out the functions of the Repatriation Medical Authority.

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) peacekeeping service rendered by members of Peacekeeping Forces; or

(c) hazardous service rendered by members of the Forces;

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 1: For `sound medical-scientific evidence' see subsection 5AB (2).

Note 2: For `peacekeeping service', `member of a Peacekeeping Force', `hazardous service' and `member of the Forces' see subsection 5Q (1A).

Note 3: For `factor related to service' see subsection (14).

(3) If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:

(a) eligible war service (other than operational service) rendered by veterans; or

(b) defence service (other than hazardous service) rendered by members of the Forces;

the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

(c) the factors that must exist; and

(d) which of those factors must be related to service rendered by a person;

before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.

Note 1: For `sound medical-scientific evidence' see subsection 5AB (2).

Note 2: For `defence service' and `hazardous service' see subsection 5Q (1A).

Note 3: For `factor related to service' see subsection (14).

Investigation

(4) If the Authority:

(a) receives a request under section 196E to carry out an investigation in respect of a particular kind of injury, disease or death; or

(b) of its own initiative, decides that a particular kind of injury, disease or death ought to be investigated for the purposes of this Act to find out whether a Statement of Principles may be determined in respect of it;

the Authority must carry out an investigation to obtain information that would enable the Authority to establish:

(c) how the injury may be suffered, the disease may be contracted or the death may occur; and

(d) the extent (if any) to which the injury, disease or death may be war-caused or defence-caused.

Note 1: For `war-caused' see sections 8 and 9.

Note 2: For `defence-caused' see section 69.

(5) If, after carrying out the investigation, the Authority is of the view that there is sound medical-scientific evidence on which it can rely to determine a Statement of Principles under subsection (2) or (3), in respect of that kind of injury, disease or death, the Authority must do so as soon as practicable.

Note: This subsection does not mean that the Authority must carry out an investigation before it can determine a Statement of Principles under subsection (2) or (3).

(6) If, after carrying out the investigation, the Authority is of the view:

(a) that there is no sound medical-scientific evidence on which it can rely to determine a Statement of Principles under subsection (2) or (3) in respect of that kind of injury, disease or death; or

(b) that the sound medical-scientific evidence on which it can rely is insufficient to allow it to do so;

the Authority must make a declaration in writing:

(c) stating that it does not propose to make a Statement of Principles; and

(d) giving the reasons for its decision.

..."

Notice of the RMA's intention to carry out an investigation of the kind referred to in s 196B(4) of the Act must be given in accordance with s 196G of the Act. Section 196G of the Act provides as follows:

"Notice of investigation

196G (1) As soon as practicable after the Repatriation Medical Authority:

(a) has been asked under section 196E to carry out:

(i) an investigation; or

(ii) a review of a decision of the Authority not to make a Statement of Principles; or

(iii) a review of the contents of a Statement of Principles;

regarding a particular kind of injury, disease or death; or

(b) has decided on its own initiative to carry out such an investigation or such a review;

the Authority must publish in the Gazette a notice:

(c) stating that the Authority intends to carry out an investigation in respect of that kind of injury, disease or death; and

(d) inviting persons or organisations authorised under subsection 196F (1) to do so to make written submissions to the Authority.

(2) A notice is to specify:

(a) the date on which the Authority will hold its first meeting for the purposes of the investigation; and

(b) the date by which all submissions must have been received by the Authority.

(3) A notice must be published in the Gazette at least 28 days before the date of the first meeting of the Authority.

(4) A notice is not invalid merely because it fails to comply with subsection (2)."

THE COMPETING SUBMISSIONS

The current appeal falls to be decided by reference to the proper interpretation of s 120A(2) of the Act. The RMA has given notice of its intention to carry out a review of SoPs relevant to the applications which were before the AAT. That review has not been determined. The applicants submit, through their counsel, Mr Croyle, that the respondent is prevented by s 120A(2) of the Act from determining a claim which relates to any of the SoPs under review until the RMA has completed its review. Mr Croyle submitted that the words "unless or until" appearing in s 120A(2) of the Act govern the words in paragraphs (a) and (b) of the sub-section.

It was further submitted that any other construction of the section would be unjust because the relevant SoPs may be amended in a way which assists the applicants and later future applications for those persons would have far less retrospectivity than the current applications.

Mr Hanks, counsel for the respondent, submitted that s 120A(2) of the Act does not impose a constraint such that a claim must not be determined until the determination of the RMA's review. Mr Hanks referred the Court to the fact that there are a variety of ways in which SoPs can be reviewed. Such a review may be instigated by the RMA, the respondent, a veteran or a veteran's representative. Further, there is no limit on the number of requests which can be made. Mr Hanks submitted that the review process is a continuous one.

Importantly, Mr Hanks referred the Court to the fact that s 120A(2) of the Act does not mention a review by the RMA of an existing SoP. He also pointed out that the subsection does not seek to prevent determinations when a review is extant in the SMRC. He noted that it would be onerous if different considerations applied depending upon whether a review was conducted by the RMA or the SMRC.

Mr Hanks submitted that the effect of the applicants' construction of the subsection is that the respondent would not be able to deal with any claim from any claimant for a pension in circumstances where a particular injury or disease is relied upon in such a claim but that injury or disease is affected by a SoP which is under review.

The interpretation of the subsection favoured by Mr Hanks is that if the RMA has announced an investigation into a relevant kind of injury etc, claims in relation to that injury are not to be determined unless there is already a SoP in respect of that injury. According to the submission that accounts for s 120A(2)(a) of the Act.

Section 120A(2)(b) of the Act, according to Mr Hanks, has the following effect. If an investigation has been announced and there is no relevant SoP in existence (as distinct from a review of an extant SoP) claims are not to be determined until that investigation is concluded either by a SoP being established or a declaration that no SoP will be made.

The construction favoured by Mr Hanks makes the word "unless" govern para (a) of the subsection and the word "until" govern para (b) of the subsection. Mr Hanks contended that was why "unless or until" was used in the subsection rather than the words "unless and until" (emphasis supplied).

CONCLUSION

In my view the construction of s 120A(2) of the Act contended for by Mr Hanks is to be preferred over the one contended for by Mr Croyle.

The subsection provides for a bar on the respondent determining certain claims made to it if the RMA has given notice of its intention to carry out a relevant investigation. The sub-section then provides two exceptions to that bar. The first exception is where the RMA has determined a SoP in respect of the relevant injury, disease or death. The second exception is where the RMA has made a declaration stating that it does not propose to make a SoP in respect of the relevant injury, disease or death.

In the circumstances of each claim before the AAT there was in existence a relevant SoP. Therefore, there was no bar on the respondent and the AAT determining the relevant claims, because the matters fell within the first exception provided in the subsection.

Consequently, Senior Member Handley was correct to reject the applications for adjournment which were made to him. In addition, in the circumstances, he had no alternative but to dismiss the applications.

The construction of s 120A(2) of the Act favoured by the Court, in my view, flows naturally on the face of the words themselves. However, such a construction, as Mr Hanks submitted, "gives effect to the general purpose of the SoP system ... namely, to ensure that, as far as feasible, decisions on the medical component of claims were made within the framework prescribed by the RMA."

That framework was correctly described by Mr Hanks in his written submissions as follows:

`(i) Where there is a SoP, the claim is to be determined by reference to the template expressed in that SoP.

(ii) Where there is no SoP, but the RMA has announced an investigation that could lead to a SoP, the claim is to be deferred.

(iii) Where there is no SoP and no investigation has been announced, the claim is to be determined by applying the pre-1994 law: ss 120A(4), 120B(4)."

Each counsel pointed to alleged unjust results that would follow if each of their constructions of the subsection were not approved. It is unnecessary to canvass fully those submissions. Each of them is briefly adverted to earlier in these reasons for judgment. I accept that the Act must be beneficially construed. However, I cannot accept the submissions of the applicants in this matter, as it is my view that the construction favoured by the respondent is commended by:

(a) a plain reading of the text of the subsection; and

(b) the purpose of SoPs in the context of the amendments to the Act effected by the 1994 Act.

As Gray J said in Sherman v Repatriation Commission (Full Court, 6 June 1991, unreported)

"The extent to which the class of persons intended to be benefited by the Act is gleaned only from the terms of the Act. It is not possible for the Tribunal, or the Court, to ignore a provision of the Act in favour of a veteran simply because of hardship."

ORDER

The order of the Court is that the appeal be dismissed.

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall

Associate:

Dated:

Counsel for the Applicant:	Mr Michael Croyle
Solicitor for the Applicant:	Williams Winters and Higgs
Counsel for the Respondent:	Mr Peter Hanks
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 February 1998
Date of Judgment:	27 February 1998