Ryan and Repatriation Commission [2000] AATA 849 (22 September 2000)

Last Updated: 12 October 2000

DECISION AND REASONS FOR DECISION [2000] AATA 849

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/689

VETERANS' APPEALS DIVISION )

Re Reginald Gordon Ryan

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Deputy President B.M. Forrest Mr A. Argent, Member Dr P.D. Fricker, Member

Date 22 September 2000

Place Melbourne

Decision The Tribunal affirms the decision of the respondent dated 24 September 1997 and affirmed by the Veterans' Review Board on 28 April 1999 that the condition of bilateral open-angle glaucoma was not war-caused.

........(Sgd. B.M. Forrest)............

Deputy President

CATCHWORDS

VETERANS' AFFAIRS - Claim for pension for condition of open-angle glaucoma - Statements of Principles - Statement of Principles applicable at time of Repatriation Commission decision subsequently revoked - at time of Administrative Appeals Tribunal review a new Statement of Principles in force - later Statement of Principles more beneficial to veteran - whether rights accrued under earlier Statement of Principles - whether contrary intention shown - application of earlier Statement of Principles - decision affirmed.

Veterans' Entitlements Act 1986 ss. 120(4), 120A, 120B, 196A and 196B

Repatriation Act 1920

Acts Interpretation Act 1901 (Cth) s. 50

Keeley v Repatriation Commission (1999) 30 AAR 48; (1999) 56 ALD 455;

Repatriation Commission v Keeley (2000) 31 AAR 150

Re Ogston and Repatriation Commission (1998) 27 AAR 176;

Ogston v Repatriation Commission (1998-1999) 56 ALD 789 (decision note)

Gantrell v Repatriation Commission [2000] FCA 1228

Reading and Repatriation Commission [2000] AATA 841

REASONS FOR DECISION

22 September 2000 Deputy President B.M. Forrest Mr A. Argent, Member Dr P.D. Fricker, Member

1. The applicant, Mr Reginald Gordon Ryan ("the veteran"), has applied to the Tribunal for a review of a decision of a delegate of the Repatriation Commission ("the Commission") made on 24 September 1997 to refuse a claim for pension for the condition of bilateral open-angle glaucoma. That decision was affirmed by the Veterans' Review Board ("the VRB") on 28 April 1999. Other conditions suffered by the veteran which were the subject of a Commission decision on 17 April 1997 and the VRB decision of 28 April 1999 and were included in the application to the Tribunal were withdrawn by the veteran's Counsel Mr G. Moore when the matter came on for hearing.

2. The veteran was born on 23 February 1920 and began full time duty in the Army on 25 March 1942. He transferred to the AIF on 20 October 1942 and served in 134 Australian General Transport Company in New South Wales, Queensland and the Northern Territory. Later he served in other transport units in New South Wales and Victoria. He was discharged from the Australian Regular Army on 4 May 1948.

3. In his evidence the veteran said his unit was based at Mount Isa and he drove trucks on the east-west road (to just north of Tennant Creek) and then on the north-south road to Darwin and return. He said he experienced glare on these trips. He was not issued dark glasses.

4. Post-war he worked in a brewery and then from 1952 until he retired in 1980 he drove trucks for Borthwick's meats around Melbourne suburbs with occasional trips to Shepparton and a few to Wodonga. Although he had dark glasses, he seldom wore them.

5. He was granted a Service Pension in 1983 under the Repatriation Act 1920 but, under the Veterans' Entitlements Act 1986 ("the Act") his Army service constitutes eligible war service only. That means that the appropriate standard of proof in this matter is on the balance of probabilities: s. 120(4) of the Act.

6. The primary medical evidence consisted of the clinical notes of Dr Peter Eizenberg (Ex. 4), the veteran's treating general medical practitioner, to which were attached specialist reports from Dr Robert Ramsay (Ex. 4 pgs. 39-47) treating ophthalmologist dating from 19 June 1989 to 26 August 1997. In summary the medical evidence disclosed:

* On 19 June 1989 Dr Ramsay reported corrected distance acuities of right eye 6/9 and left eye 6/6 with the potential to improve the right eye to 6/5. (In other words; normal corrected visual acuity.) He refers to slit lamp and fundus examinations but makes no reference to having checked the pressures.

* On 28 August 1990 - general eye examination was reported as normal (what this included was not specified).

* On 20 May 1992 Dr Ramsay reported vision of 6/5 bilaterally (normal) and "pseudo-exfoliation of the lens capsule in both of his eyes. He may have early glaucoma".

* 11 June 1992 "his perimetry examination confirmed that there was some glaucomatous field loss superiorly in both eyes".

* All subsequent reports refer to normal visual acuity and good control of intraocular pressures.

7. There was also before us a report of Dr W.E. Gillies, ophthalmologist (Ex. A) who examined the veteran for the purpose of these proceedings and gave oral evidence. His report is concerned with the establishment of a link between service and pseudo-exfoliation since glaucoma is accepted as being secondary to pseudo-exfoliation. He wrote:

"...Pseudo-exfoliation is due to deposition of an abnormal material thought to be a mucopolysaccharide in the anterior segment of the eyes. The origin of this material is not clearly understood and it is not known what the causative factors are. It is common in many races throughout the world being seen frequently in Scandinavian patients, in Greek patients and in Indian patients. It is possible that it arises secondarily to exposure to reflected or direct light and this is one of the theories as to how its formation is precipitated."

8. Dr Gillies measured visual impairment as:

* Right eye central vision normal with loss of field vision 70 per cent.

* Left eye central vision 30 per cent loss and loss of field vision 95 per cent.

9. In evidence Dr Gillies said that:

* A link between light and exfoliation was quite probable.

* Two years exposure to strong light and glare was a factor in rendering the veteran susceptible to pseudo-exfoliation in later life.

* The condition was due to both periods of exposure (driving in the tropics for two years and driving in Victoria post service).

* The later exposure would be insufficient to cause pseudo-exfoliation alone.

10. The evidence establishes to our satisfaction that as at 20 May 1992, the time of clinical onset of glaucoma the veteran was suffering from exfoliation syndrome.

11. The veteran's claim was made on 22 August 1997. As the claim for pension was made after 1 June 1994, s. 120B of the Act applies. The Repatriation Medical Authority established under s. 196A of the Act, has pursuant to s. 196B(3) determined a Statement of Principles ("SoP") for Open-Angle Glaucoma.

12. The original SoP Instrument No. 242 of 1995 dated 21 June 1995 provided that the factor that must exist before it can be said that, on the balance of probabilities, open-angle glaucoma is connected with the circumstances of eligible war service is:

"inability to obtain appropriate clinical management for the open-angle glaucoma."

13. Since the date of the primary decision of the Commission and the decision of the VRB the original SoP was revoked and replaced by a new SoP, Instrument No. 14 of 1999 dated 14 January 1999 which contained the following factor (the only factor relevant to the veteran) that must exist to establish the necessary connection between open-angle glaucoma and relevant service.

"5. (a) suffering from exfoliation syndrome involving the affected eye at the time of the clinical onset of open-angle glaucoma;"

14. The question for consideration is whether the Tribunal is to decide this matter in accordance with the SoP in force at the date of the primary decision, 24 September 1997 or in accordance with the SoP as presently in force. It was common ground, which we accept as correct, that if the SoP in force at the date of the primary decision is the applicable SoP, then the veteran's claim cannot succeed as there was no material consistent with the SoP to relate the veteran's condition to eligible war service.

15. Keeley v Repatriation Commission (1999) 30 AAR 48; (1999) 56 ALD 455 concerned an application for a pension by the widow of a veteran who rendered operational service and died as a result of multiple myeloma. The claim for widow's pension was rejected by the Commission and the VRB. The Tribunal in determining whether a reasonable hypothesis was raised connecting the veteran's death with the circumstances of his service in the RAAF was faced with the issue of the appropriate SoP in force. By the time the matter came on for hearing before the Tribunal, the SoP in force when the matter was considered by the Commission and the VRB ("the first SoP") had been expressly revoked and replaced by a second SoP. The Tribunal decided that the second SoP applied and the claim failed. While the circumstances of the veteran's service could arguably bring him within the first SoP, it was not in dispute that the widow's claim could not succeed if the second SoP applied. In turn, that depended upon whether the common law presumption against retrospectivity: see s. 50 Acts Interpretation Act 1901 (Cth) ("AI Act") applied. It would only apply if the first SoP conferred a substantive right. In the appeal to the Federal Court from the Tribunal decision the Commission submitted that the SoP regime as contained in s. 120A and s. 120B were matters of procedure and therefore no substantive right accrued. The Court (Heerey J.) rejected this submission and an alternative submission that the Act indicated an intention, by necessary implication, that the second SoP was intended to apply to all claims decided after it came into effect. His Honour held that s. 50 of the AI Act is applicable unless a contrary intention appears and further found that no contrary intention appears either expressly or by necessary implication. Consequently, the Tribunal in reviewing a decision of the Commission as affirmed by the VRB is to apply the SoP in force at the date the primary decision was made and not the SoP in force at the time of the review by the Tribunal.

16. An appeal to the Full Federal Court, (Lee, Cooper and Kiefel JJ.) Repatriation Commission v Keeley (2000) 31 AAR 150 from the decision of Heerey J. was dismissed. In the joint judgment of Lee and Cooper JJ. and in the judgment of Kiefel J., the members of the Court held that the provisions of s. 120A and a determination of the Repatriation Medical Authority under s. 196B were substantive in character. As the repeal of the first SoP affected Mrs Keeley's rights, s. 50 of the AI Act operated in the absence of a contrary intention disclosed in the second SoP. There was no such contrary intention. Kiefel J. said at 173-74 on the question of whether a contrary intention was disclosed:

"The essence of the appellant's argument was that one might derive from the provisions of the Act that it was intended to present current scientific and medical knowledge as the requirement of evidence of connexion. One may put to one side, for the present, the question whether this contextual setting for the second SoP was sufficient for an intention to be derived from it, as the repealing provision, as the AIA requires. His Honour the primary judge considered that the underlying view, that a new law is considered to be an improvement on the old, could be applied to virtually all amending or repealing legislation. Further, the need for consistency of decisions of lay tribunals is equally met by applying the SoP existing at the time of the primary decision. I respectfully agree."

17. A related although different factual issue arose in an earlier case Re Ogston and Repatriation Commission (1998) 27 AAR 176. In that matter Mrs Ogston claimed a war widow's pension after 1 June 1994 but before a SoP had been made in relation to the disease from which her husband died. The SoP was applied by the Commission in refusing the claim. The issue was whether a SoP made under s. 196B of the Act after the date of the claim is binding on the decision maker. The Full Court of the Federal Court (Burchett, Branson, RD Nicholson JJ.) Ogston v Repatriation Commission (1998-1999) 56 ALD 189 (decision note), in dismissing an appeal from the decision of the Tribunal (Mathews J.) that the Commission was bound to apply the SoP, held that the SoP is binding on the decision maker even though the effect may be to deny a claim which at the time it was lodged may have succeeded.

18. A similar question to Ogston arose for determination in Gantrell v Repatriation Commission [2000] FCA 1228, a judgment of the Full Court of the Federal Court (Whitlam, Lindgren and Gyles JJ.). The Full Court rejected an invitation not to follow Ogston and to apply the reasoning in Keeley in preference to that in Ogston. The Full Court observed:

"The respondent also points out that the decision in Keeley is consistent with, and even depends upon, the correctness of Ogston. In Keeley (as here) there was no Statement of Principles in existence at the time of the claim. The first Statement of Principles was promulgated prior to the refusal of the claim by the Commission, and did not rule out success in the claim. The second Statement, which did, was promulgated after affirmation of the refusal by the Veterans' Review Board but prior to the decision of the Administrative Appeals Tribunal. The starting point of the judgment in Keeley is that the first Statement of Principles did bind - indeed, gave rise to an accrued right. That is directly contrary to the present submission of the current appellant. This, no doubt, explains why it is that Lee and Cooper JJ in Keeley did not refer to Ogston at all. Ogston was cited by Kiefel J in support of the proposition that the first Statement of Principles applied.

Thus, the position is that there is a recent, and reasoned, decision of the Full Court directly in point. It, in turn, upheld the decision of Mathews J sitting as a member of the Administrative Appeals Tribunal. The Full Court decision which we are invited to follow in preference to it is, in truth, in accordance with it. The decision in Ogston was unanimous. Special leave to appeal to the High Court from it was refused. It cannot be said to be clearly wrong. Indeed, it appears to accord with the usual principles applicable in situations of this kind. We have no proper course other than to follow Ogston.

We recognise, of course, that there may be difficulty in reconciling all of the reasoning in the judgments in Keeley with all of the reasoning of the judgment in Ogston. That is not the concern of this Court in these proceedings. That will arise when, and if, the correctness of the decision in Keeley becomes necessary to decide in another case."

19. In Keeley the first SoP was more beneficial to the widow's claim than the second SoP. In the present matter before the Tribunal, the reverse is the situation in that the SoP now in force (Instrument No. 14 of 1999) in relation to open-angle glaucoma is more beneficial. Mr Moore submitted that because of the beneficial nature of the legislation, and the fact that the current SoP is more beneficial to the veteran than the earlier SoP, indicates an intention that it should apply rather than the SoP in force when the veteran made his claim.

20. Clearly the Act is beneficial legislation. However we do not agree that the fact the current SoP provides a more beneficial result for the veteran indicates an intention that it should apply in the present circumstances. Unless a contrary intention is clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued: Keeley per Lee and Cooper JJ. at 165. When the application for review was made to the Tribunal, the veteran had a right to have the Commission decision reviewed on the law as it stood. The fact that the later SoP would lead to a different outcome does not in our opinion of itself provide an answer. Heerey J. in Keeley referred to the need for consistency in decision making. His Honour observed that if the Commission argument were to be accepted it would mean that when a decision on a claim is made by the Commission, liability under the Act is subject to variation, whether up or down in an unpredictable way over an unpredictable period. This view was impliedly endorsed on appeal by Lee and Cooper JJ. and expressly by Kiefel J. The Tribunal in Reading and Repatriation Commission [2000] AATA 841 (Deputy President Forgie and Captain Keane) described the consequences of an inconsistent approach to decision making:

"The only way in which consistency of decision making can be maintained is if the finding of their Honours in Keeley applies equally whether the change to the later SoP is beneficial to claimants or not. If it were otherwise, the applicable SoP could be determined by the particular circumstances of each claimant for what might be beneficial to one might not be beneficial to another. It could also be determined by the persistency exhibited by a claimant in pursuing his or her appeal rights. If he or she decides to accept the Commission's initial decision, he or she might be disadvantaged against a person who does not and, while proceeding in the VRB or this Tribunal, finds that the RMA has made a SoP more favourable to his or her claim. The person who accepted the Commission's decision would need to make a new claim and his or her entitlement would be determined by the date of that new claim. The person who proceeded would have his or her entitlement determined by reference to the date of his or her original, but usually significantly, older claim."

21. We agree with this view. In our opinion, SoP No. 14 of 1999 does not indicate a contrary intention to displace the earlier SoP No. 242 of 1995 for the purposes of determining the veteran's claim. In view of our conclusion, the only course open to the Tribunal is to affirm the decision under review.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of

Deputy President B.M. Forrest

Mr A. Argent, Member

Dr P.D. Fricker, Member

Signed: .....................................................................................

Associate

Date/s of Hearing 24 May 2000

Date of Decision 22 September 2000

Counsel for the Applicant Mr G. Moore

Solicitor for Applicant De Marchi & Associates

For the Respondent Mr R. Douglass, departmental advocate