Ryde v Repatriation Commission [2005] FCAFC 108 (8 June 2005)

Last Updated: 8 June 2005

FEDERAL COURT OF AUSTRALIA

Ryde v Repatriation Commission [2005] FCAFC 108

DEFENCE AND WAR – Veterans’ entitlements – appeal – successive claims for war widow’s pension – Repatriation Commission, on accepting last claim, cannot backdate payments to date of a previous unsuccessful claim – role of Statements of Principles – successive claims not able to be dealt with as one continuous claim




Veterans’ Entitlements Act 1986 (Cth) ss 20, 120B, 120B(3)(a), 120B(3)(b), 196B




Ryde v Repatriation Commission [2004] FCA 1281 affirmed
Ryde v Secretary, Department of Family and Community Services [2005] AATA 130 referred to
















ELNA PEREZ RYDE V REPATRIATION COMMISSION
NSD 1678 of 2004

NICHOLSON, CONTI and EDMONDS JJ
8 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1678 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ELNA PEREZ RYDE APPELLANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	NICHOLSON, CONTI and EDMONDS JJ
DATE OF ORDER:	8 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	The appeal be dismissed.
2.	The appellant pay the respondent’s costs of the appeal to be taxed.

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	NSD 1678 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ELNA PEREZ RYDE APPELLANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	NICHOLSON, CONTI and EDMONDS JJ
DATE:	8 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from the dismissal of an application by Sackville J on 6 October 2004: Ryde v Repatriation Commission [2004] FCA 1281. The application was by way of ‘appeal’ on a question of law from a decision of the Administrative Appeals Tribunal (‘the AAT’) given on 16 March 2004 which affirmed a decision under review. That decision was a decision of the respondent dated 17 May 2001, which had been affirmed by the Veterans’ Review Board on 31 July 2003. In that decision the appellant was granted a war widow’s pension and it was determined that the pension would be paid with effect from 7 February 2001 with entitlement to payment commencing from 8 February 2001.

2 The point of the ‘appeal’ to the primary judge was whether the Repatriation Commission (‘the Commission’), when it grants the last of a series of claims for a war widow’s pension, is required to specify a date for the commencement of the pension which is no earlier than three months before the date on which the last claim was made; or whether the Commission can grant the pension with effect from a date three months before the claimant made her original (unsuccessful) claim for pension. Before his Honour the Commission argued that the Court should adopt the first interpretation of the relevant provision which appears in s 20 of the Veterans’ Entitlements Act 1986 (Cth) (‘the VE Act’). The appellant contended for the second interpretation. The practical effect of the issue before his Honour was that if the appellant was right, she would have been able to apply to the Commission to backdate her pension to the date of her husband’s death, namely 7 September 1991 rather than, as the Commission determined, to 7 February 2001.

3 Section 20 of the VE Act reads as follows:

‘(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14(3)(a) was received at an office of the Department in Australia.

...

(3) Nothing in this section empowers the Commission to specify as a date that a determination of a claim under subsection 19(3) takes effect in respect of a person who has made a claim for a pension under section 14, a date before the date that the person became eligible to be granted the pension.’

4 Before his Honour the primary judge, the appellant was represented by pro bono counsel. His Honour expressly acknowledged the gratitude of the Court to counsel for careful submissions on behalf of the appellant who otherwise would have been unrepresented. Unfortunately, on the hearing of this appeal, the appellant is not represented.

5 The grounds of appeal, therefore, are cast by her. They read:

‘"... I appeal to be heard by the Federal Court on the grounds that the Statements of Principles (as to the causes of death) had not been given due emphasis during the previous hearings at the Federal Court of NSW (sic)".

"I request for medical authorities of Australia to be given more emphasis to explain the Statement of Principles, as to the cause of death of the late Raymond George Ryde, RAAF, as service or war related illnesses to give favour for my appeal. This is the main reason why I’m appealing since 1991, 1999 and 2001."’

It is not immediately apparent what question of law is raised by the ground. We also received written submissions from the appellant.

6 At the hearing the appellant articulated her grounds orally. It became apparent from the manner in which she put her concerns that she wished to argue two further issues as grounds of appeal. One was that had her claims been handled correctly from the time she lodged her first claim, her entitlement as ultimately accepted by the Commission would have been recognised, so that she should now be entitled to have her pension backdated to the relevant date for payment if the first claim had succeeded. The other was that her three claims should be treated as one continuous claim, entitling her again to backdate the pension to the relevant date for payment if the first claim had succeeded.

7 The grounds of appeal need to be understood in the context of the background circumstances, which are as follows. The appellant is the widow of Raymond George Ryde (‘the veteran’) who was born on 20 January 1912. The veteran served in the Royal Australian Air Force from 10 June 1941 to 9 June 1954 as a service policeman. He initially enlisted for the duration of the war plus 12 months, and then re-enlisted in 1946 and again in 1949. During his service, the veteran developed anxiety and depression. He was discharged on the ground that he was medically unfit. The veteran’s service between 10 June 1941 to 18 August 1948 was eligible service for the purposes of the VE Act.

8 On an unknown date the veteran made a successful claim for pension under Pt II of the VE Act in respect of an anxiety state. In 1967 he made an unsuccessful claim for a pension in respect of hiatus hernia.

9 The veteran and the appellant met for the first time in early October 1986. They commenced a de facto relationship in February 1987.

10 On 18 August 1987 the veteran claimed a pension in respect of personality disorder, cervical thoracic spondylosis, gout, hypertension, claudication, stroke, heart disease, peripheral vascular disease, barbiturate dependence, kidney trouble and benign prostatic hypertrophy. A delegate of the Commission made the following decision on the claim:

• peripheral vascular disease was accepted as war-caused,
• personality disorder and barbiturate dependence were treated as part of the veteran’s accepted disability of anxiety state, and
• the remainder of the claim was rejected.

11 The veteran died on 7 September 1991, aged 79 years. The causes of death listed on his death certificate are:

I. (a) Cerebrovascular accident 1 week

(b) Acute renal failure 1 week
(c) Pulmonary infection 3 days

II. Hypernatremia 3 days

12 The appellant lodged several claims for pension in respect of the veteran’s death:

• a claim received on 23 September 1991
• a claim received on 15 October 1999
• a claim received on 7 May 2001

13 The claim received on 23 September 1991 was refused by a delegate of the Commission on 24 January 1992. The delegate found that the veteran died from cerebral atherosclerosis, that the only risk factors for that disease were age and male gender, and that there was no connection between that disease and the veteran’s accepted disabilities of anxiety state and peripheral vascular disease. The delegate’s decision was affirmed on review by the Veterans’ Review Board and by the AAT.

14 The claim received on 15 October 1999 was refused by a delegate of the Commission on the ground that the evidence did not show any reasonable connection between the death of the veteran from cerebrovascular accident and eligible service.

15 The claim received on 7 May 2001 was accepted by a delegate of the Commission on 17 May 2001 with effect from 7 February 2001. The delegate’s decision was affirmed by the Veterans’ Review Board and by the AAT, each of which considered that the provisions of s 20 of the VE Act clearly supported the commencement date of the pension being 7 February 2001.

16 A dependant’s eligibility for a Pt II pension is based upon the war-caused death of a veteran. At the time when the appellant lodged her first pension claim in 1991 the VE Act contained no provisions regarding the manner in which causation was to be determined, other than s 120 which prescribed the standard of proof to be applied when making the determination.

17 Before the appellant lodged her 1999 and 2001 claims, the VE Act was amended to provide that causation was to be determined in accordance with the Statements of Principles made by the Repatriation Medical Authority on sound medico-scientific evidence: s 168 and s 120B.

18 The appellant submitted before Sackville J that, as an alternative to her contentions regarding the interpretation of s 20(1), she was entitled to have her pension backdated to 29 August 1995, which was the date when the Repatriation Medical Authority first issued a Statement of Principles concerning cerebrovascular accident. This is one of the issues which the appellant desires to pursue in her appeal.

19 The reasons of his Honour are informative on the law and circumstances relating to the appellant’s position. He dealt in considerable detail with the legislation, the history of her claims and the contentions made to him. He then set out his reasoning. Like the decisions of the Veterans’ Review Board and the AAT, he found that s 20 of the VE Act had a decisive effect. However, he also considered carefully how the facts of the case showed the difficulty in maintaining the proposition that the 2001 claim for the war widow’s pension was essentially the same as the 1991 and 1999 claims.

20 As his Honour’s reasons make apparent, s 120B of the VE Act provides that in relation to claims for war service pensions made on or after 1 June 1994, the Commission is to be reasonably satisfied that the death of a person was war-caused only if (relevantly): (a) the material before the Commission raises a connection between the death of the person and some particular service rendered by the person (s 120B(3)(a)); and (b) a Statement of Principles determined under s 196B of the VE Act upholds a contention that the death of the person is, on the balance of probabilities, connected with that service (s 120B(3)(b)).

21 As his Honour stated, s 196B(3) provides that if the Repatriation Medical Authority is of the view, inter alia, that there is sound medical-scientific evidence indicating that a particular kind of death can be related to eligible war service, it must determine a Statement of Principles in respect of that kind of death. The Statement of Principles must set out:

• the factors that must exist; and
• which of those factors must be related to the service rendered by a person,

before it can be said that, on the balance of probabilities, a death of a particular kind is connected with the circumstances of the eligible war service.

22 Among the causes of death of the veteran was cerebrovascular accident. Again, as stated in his Honour’s reasons, a Statement of Principles concerning cerebrovascular accident was first determined in 1995. It was later revoked and another Statement of Principles concerning cerebrovascular accident was substituted. The parties agreed that the determination in effect at all material times from June 1999 was that contained in Instrument No 53 of 1999 (‘the Determination’).

23 Clause 3 of the Determination stated that on the sound medical-scientific evidence available, the Repatriation Medical Authority was of the view that it is more probable than not that death from cerebrovascular accident can be related to relevant service rendered by veterans. Clause 4 provided that at least one of the factors set out in cl 5 had to be related to the veteran’s war service. Clause 5 relevantly provided as follows:

‘The factors that must exist before it can be said that, on the balance of probabilities, cerebrovascular accident or death from cerebrovascular accident is connected with the circumstances of a person’s relevant service are:

...
(d) an inability to undertake more than a mildly strenuous level of physical activity for at least the seven years immediately before the clinical onset of cerebrovascular accident; or
...’

This factor was set out in his Honour’s reasons. That was the reason why the delegate accepted that the appellant was eligible for the widow’s pension. It was not because of the evidence relied on by the appellant in her second claim. It is clear that in dealing with the Statement of Principles, his Honour fully took into account its effect. Furthermore, and with reference to the grounds of ‘appeal’, he was bound to take into account the Determination as it was made and not to receive medical evidence to explain the Statement of Principles.

24 In relation to the appellant’s oral contentions, it is necessary to have regard to the provisions of the VE Act. Claims for pensions are dealt with particularly in Div 3 of Pt II. Section 14(3) provides:

‘(3) A claim for a pension:

(a) shall be in writing and in accordance with a form approved by the Commission;
(b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).’

Section 14(6) and s 14(7) provide:

‘(6) Where:

(a) a person has made a claim for a pension under this section in respect of the death of a veteran; and
(b) the claim has not been finally determined;

the person is not empowered to make another claim for a pension under this section in respect of the death of that veteran.

(7) For the purposes of this section, a claim is finally determined when either:

(a) a decision that has been made in respect of the claim is not subject to any form of appeal or review; or
(b) a decision that has been made in respect of the claim was subject to some form of appeal or review, but the period within which such an appeal or review could be instituted has ended without an appeal or review having been instituted.’

The scheme of these provisions embodies the principle that each claim is entirely separate at law from claims made before or after it. Indeed, a claim cannot be made until a predecessor claim has been ‘finally determined’. The scheme of s 14 envisages multiple applications but these must be multiple separate applications. The provisions have applied since 1986.

25 These provisions answer the appellant’s oral submissions. Her success of the third claim can only be treated under the VE Act as a separate claim. It cannot be treated as part of a continuity of claims. As Sackville J stated in his reasons at [46], the structure of the VE Act is very difficult (we would say impossible) to reconcile with the proposition, inherent in the appellant’s submissions, that a claim made after the final determination of an earlier claim somehow revives or constitutes part of the first claim.

26 When the appellant made the second claim she relied on evidence of barbiturate dependency and anxiety. In his reasons, the delegate addressed the subject of cerebrovascular accident. In doing so he considered alcohol consumption, cigarette smoking, severe stressor, diabetes mellitus, hypertension and cholesterol level. He stated ‘the evidence before me indicates that the other factors that can contribute to cerebrovascular accident, contained in the Statement of Principles, did not apply in this case. The determination was appealed. It was not until the making of the third claim that the appellant relied on the additional factor in the Statement of Principles of the veteran’s inability to undertake a mildly strenuous level of physical exercise for at least seven years before this cerebrovascular accident as a consequence of his condition of peripheral vascular disease.

27 In our view the issues raised by the appellant whether in the notice of appeal or in her written or oral submissions to the Court cannot lead to this Court setting aside the order under appeal. Further, we do not see any error in the reasoning of Sackville J on the issue which was before him.

28 For these reasons we consider that the appeal must be dismissed.

29 The respondent seeks costs against the appellant. Before the primary judge no such order was sought. Before us the appellant sought to address the Court on her means. In response, the respondent drew to the Court’s attention the decision of the AAT in Ryde v Secretary, Department of Family and Community Services [2005] AATA 130. The AAT there decided that the appellant was indebted to the respondent department in the sum of $777.22 and that the debt should be recovered. In reaching this decision the Tribunal found that the appellant is the owner of a home in the Philippines valued in 1992 as approximately $680 000. As at the date of the Tribunal decision (21 January 2005) the house was found to be tenanted, the rental covering local taxes and maintenance.

30 The usual rule is that costs follow the event. Given that the appellant holds assets, even though a pension recipient, we cannot in the circumstances see any proper discretionary ground to vary the usual rule. The appellant chose to not abide by the judgment of the primary judge but rather to put herself at risk as to costs by bringing the appeal. Although she is unrepresented, that alone is not a proper basis to vary the usual rule. Accordingly we consider costs should follow the event and the appellant be ordered to pay the costs of her unsuccessful appeal.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Nicholson, Conti and Edmonds.

Associate:



Dated: 8 June 2005

The Appellant appeared in person
Counsel for the Respondent:	RM Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 May 2005
Date of Judgment:	8 June 2005