Spencer v Repatriation Commission [2002] FCA 229 (28 February 2002)

Last Updated: 11 March 2002

FEDERAL COURT OF AUSTRALIA

Spencer v Repatriation Commission [2002] FCA 229

DEFENCE AND WAR - Veterans' entitlements - Statement of Principles - reasonable hypothesis connecting disease claimed to service - claim for cerebrovascular accident caused by hypertension caused by stress related to service - situation where no statement of principles exists nor proposed to be made in respect of the disease contracted by the veteran - Order in which ss 120A(3) and 120A(4) are to be considered - Veterans Entitlement Act 1986 (Cth), ss 120, 120A, 196B.

Veterans Entitlements Act 1986 (Cth) ss 120, 120A, 196B

Repatriation Commission v Keeley [2000] FCA 532; (2000) 98 FCR 108

GEORGE GORDON SPENCER v REPATRIATION COMMISSION

N 1475 OF 2001

EMMETT J

28 FEBRUARY 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1475 OF 2001

BETWEEN:	GEORGE GORDON SPENCER APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	28 FEBRUARY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. the appeal be upheld;

2. the decision of the Administrative Appeals Tribunal of 4 October 2001 be set aside;

3. the matter be remitted to the Tribunal for determination according to law; and

4. the respondent pay the applicant's cost.

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	N1475 OF 2001

BETWEEN:	GEORGE GORDON SPENCER APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	EMMETT J
DATE:	28 FEBRUARY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 On 13 March 1995 the applicant made a claim under the Veterans Entitlements Act 1986 (Cth) ("the Act"). The claim was for incapacity from a disease that was referred to in the claim as "stroke". It is common ground that that reference should be construed as a cerebrovascular accident caused by cerebrovascular disease. The respondent, the Repatriation Commission, made a determination on 13 April 1995 rejecting the claim. On 29 August 1995 a Statement of Principles Number 326 of 1995 ("SoP 326/1995") was gazetted in respect of cerebrovascular accident. It is common ground that, having regard to the decision of the Full Court in Repatriation Commission v Keeley [2000] FCA 532; (2000) 98 FCR 108 ("Keeley's Case"), that SoP 326/1995 is irrelevant for the purposes of assessment of the applicant's claim.

2 On 21 February 1996 the applicant applied to the Veterans Review Board for review of the decision of the Commission. On 15 January 1999 the Board confirmed the decision of the Commission. On 20 January 1999 the applicant applied to the Administrative Appeals Tribunal ("the Tribunal") for review of the Commission's decision as confirmed by the Board. On 4 October 2001 the Tribunal affirmed the decision of the Commission. On 31 October 2001 the applicant filed a notice of appeal to this Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)

3 The question of law raised by the appeal concerns the proper construction of s 120A(4) of the Veterans Entitlements Act. Section 120(1) provides that, where a claim under Part II for a pension in respect of the incapacity from disease of a veteran relates to the operational service rendered by the veteran, the Commission must determine that the disease was a war caused disease unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) provides that, in applying s 120(1) in respect of the disease of a person related to service rendered by the person, the Commission must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the disease was a war caused disease if the Commission is of the opinion that the material before it does not raise a reasonable hypothesis connecting the disease with the circumstances of the particular service.

4 Section 120A(3) provides that, for the purposes of s 120(3), a hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by that person is reasonable only if there is in force a statement of principles, determined by the Repatriation Medical Authority ("the Authority") pursuant to s 196B(2) of the Act that upholds the hypothesis. Section 120A(4) provides that s 120A(3) does not apply in relation to a claim in respect of the incapacity from disease of a person if the Authority has neither determined a statement of principles under s 196B(2) nor declared that it does not propose to make such a statement of principles in respect of the kind of disease contracted by the person.

5 The applicant has advanced a hypothesis that connects his cerebrovascular accident with the particular circumstances of his service. The hypothesis is that the particular circumstances of his service contributed to or caused an anxiety state with gastrointestinal symptoms, that the anxiety state contributed to or caused hypertension and that the hypertension contributed to or caused the cerebrovascular accident.

6 At the time of the Commission's decision there was in force Statement of Principles 83 of 1995 ("SoP 83/1995") dealing with hypertension. The Tribunal concluded that, because SoP 83/1995 did not uphold the applicant's hypothesis, his claim was correctly rejected by the Commissioner. The Tribunal held that it was bound by s 120A(3) and, since there was not in force a statement of principles at the relevant time that upheld the applicant's hypothesis, the hypothesis could not be found to be reasonable. Counsel for the Commission contended that that approach was correct and that the Tribunal properly concluded that s 120A(3) governed the outcome because SoP 83/1995 does not uphold any hypothesis that the hypertension of the applicant was contributed to or caused by an anxiety state that was caused by or contributed to by service.

7 Clause 5 of SoP 83/1995 specifies a number of factors that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting hypertension with the circumstances of a person's relevant service. Clause 4 provides that at least one of those factors must be related to any relevant service rendered by the person. It is common ground that those requirements are not satisfied in the case of the applicant.

8 Counsel for the Commission submitted that s 120A(3) was correctly applied on the basis that SoP 83/195 was applicable. That is to say, an element of the applicant's hypothesis is covered by SoP 83/1995 and that hypothesis is not reasonable because SoP 83/1995 does not uphold the hypothesis. Therefore, so it was argued, it is unnecessary to consider the operation of s 120A(4).

9 However that, in my view, involves a misapprehension in the way in which s 120A is meant to operate. Section 120A(4) says, in explicit terms, that s 120A(3) does not apply in relation to certain claims. Indeed, the authorised version of the Act contains a note concerning the application of s 120A(3) referring expressly to s 120A(4).

10 It is critical, in my view, that before s 120A(3) can be applied, s 120A(4) must first be considered. It is accepted on behalf of the Commission that, at the relevant time, the Authority had neither determined a statement of principles under s 196(b)(2) nor declared that it does not propose to make such a statement of principles in respect of cerebrovascular accident or in respect of cerebrovascular disease.

11 There is a certain inelegance in the drafting of s 120A(4). The preamble refers to a claim in respect of the "incapacity from disease of a person". On the other hand, s 120A(4)(b) refers to the kind of disease "contracted by" the person. I consider that the s 120A(4) provision should be construed such that the reference to the kind of disease contracted by a person is a reference to the disease a claim in respect of the incapacity from which has been made by the person.

12 The disease from which a claim in respect of incapacity has been made in this case is cerebrovascular accident or cerebrovascular disease. There has been no claim in respect of incapacity from hypertension, although it may be that the logical consequence of the hypothesis advanced by the applicant is that it must be established that the disease claimed was caused by hypertension.

13 Once one accepts, however, that the Authority had neither determined a statement of principles nor declared that it did not propose to make such a statement of principles in respect of cerebrovascular disease or cerebrovascular accident at the relevant time, and that the present applicant has made a claim in respect of his incapacity from a cerebrovascular accident or cerebrovascular disease, it follows, as a matter of simple English, that the requirements of section 120A(4) are satisfied. As a consequence, s 120A(3) does not apply in relation to the applicant's claim. Apart from the apparent illogical consequence having regard to the existence of Statement of Principles 83 of 1995, that consequence, insofar as it is illogical, is also the result of applying the decision in Keeley's Case. As I have said, I am bound by that case and there has been no suggestion here that that case was wrongly decided.

14 It follows from the conclusion that I have reached that the Tribunal erred in law insofar as it concluded that s 120A(3) precluded it from concluding that the applicant's hypothesis was reasonable. In my opinion the appeal should be upheld and the matter should be remitted to the Tribunal for determination according to law.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 8 March 2002

Counsel for the Applicant:	Mr M B Smith
Solicitor for the Applicant:	Legal Aid Commission of NSW
Counsel for the Respondent:	Miss R M Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 February 2002
Date of Judgment:	28 February 2002