Shelton v Repatriation Commission [1999] FCA 181 (26 February 1999)

Last Updated: 10 March 1999

FEDERAL COURT OF AUSTRALIA

Shelton v Repatriation Commission [1999] FCA 181

ADMINISTRATIVE LAW )

VETERANS' AFFAIRS )

COSTS ) construction of expression "maladaptive pattern of use ... that is indicated by ... continued use ... despite knowledge" in Statement of Principles under s 120A - circumstances in which administrative appeal which failed should not result in costs order against applicant for judicial review.

Veterans' Entitlement Act 1986 (Cth), ss 120, 120A

Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564

Holden & Co. v Crown Prosecution Service (No. 2) [1994] 1 AC 22

JESSIE HELEN SHELTON v REPATRIATION COMMISSION

NG 966 of 1998

Burchett, R D Nicholson and Finkelstein JJ

26 February 1999

Sydney

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 966 of 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	JESSIE HELEN SHELTON Appellant
AND:	REPATRIATION COMMISSION Respondent
JUDGES:	BURCHETT, R D NICHOLSON AND FINKELSTEIN JJ
DATE OF ORDER:	26 FEBRUARY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The orders made below be varied by the deletion of the costs order and the

substitution of an order that each party bear her or its own costs of the application;

2. The appeal be otherwise dismissed;

3. Each party bear her or its own costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 966 of 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	JESSIE HELEN SHELTON Appellant
AND:	REPATRIATION COMMISSION Respondent

JUDGES:	BURCHETT, R D NICHOLSON AND FINKELSTEIN JJ
DATE:	26 FEBRUARY 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1 BURCHETT J: What I am about to say constitutes the judgment of the court. This is an appeal from a judge of the court in relation to an appeal, so called, from the Administrative Appeals Tribunal in respect of a claim under the Veterans' Entitlement Act 1986, which had been brought by a widow on the basis that her husband's death was connected with his war service so as to entitle her to a pension under s 120(3).

2 The Administrative Appeals Tribunal held that a reasonable hypothesis had been shown linking death from ischaemic heart disease to war service by way of hypertension caused by excessive consumption of alcohol, itself caused by the psychological consequences of war service. There was, at the time of the hearing, a Statement of Principles within s 120A(3) which upholds this hypothesis, so far as it relates the deceased's hypertension to his war service on a particular basis which it will be necessary to set out. Because the hypothesis was accepted by the Administrative Appeals Tribunal as reasonable, the question became whether, under s 120(1), it was satisfied beyond reasonable doubt that the condition of hypertension was not war caused. The legal foundation on which this question had to be decided is to be found in Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 at 570:

"Once a reasonable hypothesis is raised, the question for the Commission is then whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury was war-caused. The Commission will be so satisfied if it is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved (Bushell (1992) 175 CLR at p 416), either by proof beyond reasonable doubt that a fact or fact [scil. "facts": see report in 116 ALR at 215] relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis (ibid, at p 427, per Brennan J)."

3 The Tribunal was satisfied beyond reasonable doubt that a fact relied upon to support the hypothesis was not true, that is to say, it was so satisfied that the deceased did not suffer "from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension" as required by the Statement of Principles in respect of hypertension. This requirement is to be understood in accordance with the definition of psychoactive substance abuse contained in the Statement of Principles, as follows:

"'psychoactive substance abuse or dependence' means a maladaptive pattern of use, as derived from DSM-IV, attracting ICD code 303 or 304, that is indicated by either:

(a) continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or

(b) recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated)".

The Tribunal found as a fact, and it said that it did so beyond reasonable doubt, that the deceased did not suffer from psychoactive substance abuse within this meaning. In doing so, it relied on evidence that the deceased, whose drinking of alcohol had been at one stage heavy, and was perhaps generally, over a substantial period, somewhat above a moderate level, had reduced his intake of alcohol in the 1970s as a result of medical advice; that he had again reduced his alcohol intake in about 1985 to "two beers and two wines per day"; that he never took time off work because of drinking; was never violent; never had a serious car accident; was never charged with a driving offence; and had a good relationship with his children.

4 The Tribunal found there was no evidence the deceased's drinking was at a level he could not control. The principal question upon the appeal is whether the Tribunal erred in law in its construction of the Statement of Principles. The appellant's argument was that the definition in the Statement of Principles refers to "continued use of the substance despite knowledge of having a persistent ... physical problem that is caused or exacerbated by use of the substance." Reading this literally, Counsel said the reduction in use which occurred is not to the point; the use continued, albeit at a lower level, despite knowledge of the persistent physical problem of hypertension. The learned judge at first instance answered this argument by saying the use of which the Statement of Principles speaks is use at a harmful level, as otherwise the Statement of Principles would produce the absurdity that a beneficial use of alcohol by very moderate drinking would indicate psychoactive substance abuse.

5 We prefer to give a slightly different answer. It seems to us that the word "indicated" in the expression "means a maladaptive pattern of use indicated by either" - and then (a) or (b) - is equivalent to "pointed to by". But the definition still requires that there be the disease entity to which the named symptoms point. That disease entity is a "maladaptive pattern of use". If the level of drinking does not constitute that maladaptive pattern of use, the fact that some use of alcohol continues cannot indicate a condition which does not exist. If this construction were doubtful on the literal wording of the definition, read alone - which we do not think it is - it would be confirmed by reference to the American Diagnostic and Statistical Manual of Mental Disorders, DSM-IV, which the definition specifies as its source. That manual states:

"The essential feature of Substance Abuse is a maladaptive pattern of substance use manifested by recurrent and significant adverse consequences related to the repeated use of substances. There may be repeated failure to fulfil major role obligations, repeated use in situations in which it is physically hazardous, multiple legal problems, and recurrent social and interpersonal problems".

6 Plainly, the deceased, after he reduced his consumption of alcohol, did not, on the Tribunal's findings, fall within this description. More importantly, for present purposes, a definition framed to reflect the manual is looking at a disease manifested by certain behaviour which is symptomatic of the disease, not merely at any level of behaviour of that kind, whether or not it is symptomatic of the disease.

7 The appellant's argument also ignored the time element which is involved in the Statement of Principles, according to which what is required to exist is a suffering from psychoactive substance abuse involving daily consumption of alcohol before, and continuing at least until, the accurate determination of hypertension. That condition is the defined condition, which involves continued use of the substance despite the knowledge that I have already recited. The condition as defined, involving this knowledge, must have existed before the accurate determination of hypertension, if it was to fall within the Statement of Principles. In this case, there is simply no evidence of that. Much of the evidence, of course, was actually directed to a later time.

8 An argument was also advanced that the Tribunal failed to apply the correct onus of proof, beyond reasonable doubt. For the reasons given by the judge at first instance, this argument cannot be sustained.

9 An additional matter was raised in the course of the argument, pursuant to subparagraph (w) of paragraph 1 of the Statement of Principles, which refers to the case of psychoactive substance abuse involving daily consumption of alcohol that commenced before, and continued at least until, the clinical worsening of hypertension. This point does not appear to have been raised in the Administrative Appeals Tribunal. It was not raised before the learned judge at first instance either, and in any case it does not appear to us to have any substance.

10 There is one aspect of the matter which has concerned us. The Statement of Principles, although we have reached a firm view of its correct construction, is worded in less than ideal language, and indeed somewhat confusingly. In literal terms, it suggests the meaning the appellant gave it. In that situation, and bearing in mind that the legislation authorising the Statement of Principles is beneficial legislation, it cannot be said the application to the Court was unreasonable. Often, in administrative law, such an application as this was clarifies the law in a wider interest than that of the applicant. Indeed, it is as essential to good administration as it is important in the interests of individual justice that administrative decisions should be open to accessible review. Persons affected by administrative decisions should not be overmuch deterred by the threat of costs orders in such cases, and the very wide discretion given to the Court by the Federal Court of Australia Act 1976 should not be automatically exercised adversely to the losing party.

11 In the circumstances of this case, we think the appeal should be dismissed, subject to a variation of the order made below so as to leave each party to bear her or its own costs. On the appeal, in which the appellant thus had some small success, the same costs order should be made, so that the costs will lie where they fall. It should be appreciated that, although costs generally follow the event, there is a significant number of cases in which this is not so. See the discussion by Lord Bridge in Holden & Co. v Crown Prosecution Service (No. 2) [1994] 1 AC 22 at 40.

12 For these reasons, the appeal will be dismissed subject to the variation that I have just indicated of the order made below, and each party will be left to bear her or its own costs of the appeal.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: March 1999

Counsel for the Appellant:	Mr A T McInnes QC with Mr A L Hill
Solicitor for the Appellant:	Kenneth Harrison
Counsel for the Respondent:	Mr P J Hanks
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 February 1999
Date of Judgment:	26 February 1999