FEDERAL COURT OF AUSTRALIA Repatriation Commission v Wellington [1999] FCA 1552 ADMINISTRATIVE – Veteran's affairs – whether the Administrative Appeals Tribunal ("the AAT") erred in law by regarding appropriate clinical management as referable to current rather than the prevailing medical standards during the time of the veteran's war service – whether the AAT erred in law in finding that the veteran's disease was aggravated or contributed to by war service. Administrative Appeals Tribunal Act 1975 (Cth) s44(1) Veterans' Entitlements Act 1986 (Cth) s120A Repatriation Commission v Deledio (1998) 83 FCR 82, referred to Brew v Repatriation Commission [1999] FCA 494, referred to Keeley v Repatriation Commission [1999] FCA 1103, referred to REPATRIATION COMMISSION v GEORGE HAROLD WELLINGTON V 90 of 1999 MARSHALL J MELBOURNE 11 NOVEMBER 1999 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V90 OF 1999 BETWEEN: REPATRIATION COMMISSION Applicant AND: GEORGE HAROLD WELLINGTON Respondent JUDGE: MARSHALL J DATE OF ORDER: 11 NOVEMBER 1999 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of the Administrative Appeals Tribunal of 2 February 1999 be set aside. 3. The respondent's decision of 19 December 1996 be affirmed. 4. There be no order as to costs. 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 V90 OF 1999 BETWEEN: REPATRIATION COMMISSION Applicant AND: GEORGE HAROLD WELLINGTON Respondent JUDGE: MARSHALL J DATE: 11 NOVEMBER 1999 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an appeal by the applicant, the Repatriation Commission ("the Commission") from a decision of the Administrative Appeals Tribunal ("the AAT") made on 2 February 1999. The appeal is made pursuant to s44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). Background 2 The respondent, Mr Wellington, is in receipt of a pension under the Veterans' Entitlements Act 1986 (Cth) ("the Act"). On 5 July 1996 Mr Wellington applied for an increase in the amount of his pension on the ground that his disability constituted by diverticular disease of the colon was war caused. 3 On 19 December 1996 the Commission refused Mr Wellington's application. That decision was affirmed by the Veterans' Review Board on 28 April 1998. The AAT set aside the decision of the Commission and decided that Mr Wellington's diverticular disease of the colon is a war caused disease with effect from 5 April 1996. 4 Mr Wellington was engaged in operational service with the Royal Australian Navy from 19 February 1942 until 22 February 1946. During that time he served on HMAS Shropshire and spent four extended periods at sea. Due to the inadequate supply of fresh fruit and vegetables on board the vessel Mr Wellington developed diverticular disease of the colon. As a consequence he suffered some constipation, abdominal pain and diarrhoea. 5 Mr Marshall, a specialist gastroenterologist, gave evidence before the AAT that Mr Wellington's condition developed as a direct consequence of the low fibre diet provided to him during his war service and the chronic constipation which ensued. Mr Marshall also gave evidence that during the 1940s the prevailing "medical wisdom" was that "a low or no residue diet" was required. The legislative context 6 As Mr Wellington lodged his application after 1 June 1994 it fell to be considered in the context of s120A of the Act. See Repatriation Commission v Deledio (1998) 83 FCR 82. A hypothesis connecting a disease contracted by a veteran with the circumstances of any particular service given by the veteran is reasonable only if there is in force a Statement of Principles ("SoP") that upholds that hypothesis. 7 The relevant SoP sets out the "factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting diverticular disease of the colon …with the circumstances of that service." The particular factor identified by the AAT as relevant to Mr Wellington's claim was the factor set out at par 1(c) of the SoP which is: "[an] inability to obtain appropriate clinical management for diverticular disease of the colon." 8 Paragraphs 2 and 3 of the SoP are in the following form: "2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to (c) must be related to any service rendered by a person. 3. The factors set out in paragraphs 1(b) and (c) apply only where: (a) the person's diverticular disease of the colon was contracted prior to a period, or part of a period, of service to which the factor is related; and (b) the relationship suggested between the diverticular disease of the colon and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act." 9 The part of the Act referred to in par 3(b) of the SoP which is material for current purposes is s9(1)(e) of the Act. It provides as follows: "(e) the injury suffered, or disease contracted, by the veteran: (i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or (ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service; and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease." The relevant reasoning of the AAT 10 The AAT held that a reasonable hypothesis had been raised connecting Mr Wellington's diverticular disease of the colon with his inability to obtain appropriate clinical management for the disease, that is, a high fibre diet. Having found that no other part of par 1 of the SoP was satisfied the AAT said at par 41 of its reasons that: "However we consider that a hypothesis based on factor 1(c) does not meet the same problems. Mr Marshall said that in his opinion Mr Wellington would have been unable to obtain appropriate clinical management for his diverticular disease of the colon once he had contracted that disease while serving in HMAS Shropshire." The AAT added at par 42 of its reasons that: "Mr Marshall said that appropriate clinical management for the condition would have required a high fibre diet. In the 1940s doctors did not know the dangers of a low fibre diet." 11 The AAT then reviewed the evidence which it said raised the hypothesis contained in par 1(c) of the SoP. At par 44 of its reasons the AAT said: "We are satisfied that the material raises the hypothesis that once Mr Wellington had contracted diverticular disease of the colon, which was apparent by June 1944, …he was unable to obtain appropriate clinical management for that disease. That hypothesis does contain one of the factors which the Repatriation Medical Authority has said must as a minimum exist and be related to a person's service before a hypothesis connecting diverticular disease of the colon with service can be said to be a reasonable one. We are satisfied that the third hypothesis considered in this matter is reasonable. Thus step 3 of the steps outlined by the Full Court in Deledio is satisfied." 12 In essence the third step identified in Deledio (at 97) is the requirement that the hypothesis be consistent with the template found in the SoP. The next step was described in Deledio as follows (at 97-98): "The Tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death [or disease] was not war-caused … If not so satisfied, the claim must succeed." The AAT held that there was no material which would enable it to be so satisfied. Consequently it upheld Mr Wellington's application. "Appropriate clinical management" 13 Mr Hanks, of counsel, appeared for the Commission. Mr Hanks submitted that the AAT made two errors of law in coming to its decision. The first error, it was submitted, was to regard "appropriate clinical management as referable to current medical standards and not to those that obtained during the time of war service". In support of that submission Mr Hanks referred to par 2 of the SoP and the relevant inability in par 1(c) being required to be related to "service rendered". At par 25 of his written submissions Mr Hanks contended that: "A person's "inability to obtain appropriate clinical management" for a condition must be measured by the standards of clinical management available at the relevant time and then regarded by the medical profession as appropriate. Any other approach would ignore the requirement that the inability be "related to service", and would render the Commonwealth liable to compensate a veteran because the Commonwealth provided a form of treatment then regarded as appropriate – because it had not anticipated advances in the clinical management of a disease or injury." 14 Mr Hanks referred the Court to the judgment of Sundberg J in Brew v Repatriation Commission [1999] FCA 494 in which his Honour noted that the AAT had found that appropriate clinical management was to be considered by reference to "contemporaneous medical standards, practices and technology". In its reasons for judgment the Court did not disturb that view of the AAT. 15 Mr De Marchi, a solicitor, represented Mr Wellington. Mr De Marchi submitted that it made no difference whether Mr Wellington's inability to obtain appropriate clinical management was to be judged by 1940s practices or modern medical standards. He said that the inability to obtain fresh fruit and vegetables was part of Mr Wellington's service life. 16 In the Court's view Mr De Marchi's submission fails to come to grips with the applicant's contentions on this issue. It is necessary to examine the temporal aspect to "appropriate clinical management". The AAT appeared to assume that appropriate clinical management is measured by contemporary standards. The Court disagrees. For the reasons set out in par 25 of the applicant's written submissions, as reproduced above and in the absence of any adverse comment on that approach by the Court in Brew, it is the Court's view that the AAT erred in law in failing to consider that par 1(c) of the SoP is made out by reference to medical standards which applied at the relevant time. Had the AAT considered the concept of appropriate clinical management by the standards of the 1940s it would have been bound to hold, on the evidence, that the SoP was not satisfied. Paragraph 3(b) of the SoP 17 Mr Hanks also submitted that the AAT erred in law by failing to have regard to par 3(b) of the SoP in coming to its decision. Paragraph 3(b) of the SoP relevantly brings into consideration s9(1)(e) of the Act. For the purposes of s9(1)(e) of the Act, the applicant conceded that the disease was contracted by Mr Wellington whilst rendering eligible war service but submitted that the disease was not "contributed to in a material degree" by war service or "aggravated" by war service. 18 Mr De Marchi submitted that s9(1)(e)(ii) applied because the disease was contracted after an earlier period of service during a later period of service. He also contended that the disease was contributed to in a material way by the service because service was "the absolute cause" of the disease. 19 It is unnecessary to determine if s9(e)(i) or (ii) applies and hence it is also unnecessary to resolve any difference between the parties on whether Mr Wellington had a single period of war service or various part periods of war service under the Act. Mr De Marchi's submission about whether the disease was contributed to in a material degree by war service misses the point that the disease must first become apparent during war service and then that war service must contribute to the disease, in effect its progress, in a material way. It is the Court's view that the applicant correctly submitted that there was no evidence upon which the AAT could find that Mr Wellington's service aggravated his disease or contributed to it in a material way. Consequently the second legal error identified by the Commission has also been established. Change to the SoP 20 Mr De Marchi submitted that in considering whether par 1(b) of the SoP applied to Mr Wellington the AAT did not consider the SoP in its original form but in a form to which it had been amended after the Commission's initial determination in December 1996. It followed, according to Mr De Marchi, that if the Commission were to succeed on any ground in the appeal the whole matter should be remitted to the AAT. In reply, Mr Hanks submitted that par 1(b) of the SoP is governed by par 3(b) of the SoP and that the AAT's failure to properly consider par 3(b) would have affected any favourable ruling it may have made under par 1(b) if it considered that paragraph in its unamended form. It should have done just that according to the reasoning of Heerey J in Keeley v Repatriation Commission [1999] FCA 1103. The Court agrees with the submissions of Mr Hanks on this issue and see no reason why Mr De Marchi's submission should affect the question of the appropriate order which the Court should make. Relief 21 Having regard to the conclusion of the Court that the AAT erred in law in coming to its decision in the two ways illustrated above, it would ordinarily be appropriate to order that: · the appeal be allowed · the decision of the AAT of 2 February 1999 be set aside, and · the Commission's decision of 19 December 1996 be affirmed · there be no order as to costs 22 However Mr De Marchi submitted that the matter should be remitted to the AAT because it did not consider an alternative claim he advanced before it which was referable to a claim that Mr Wellington had "irritable bowel disease". The AAT did not find it necessary to consider that claim. In reply Mr Hanks observed that no such claim had been made to the Commission. Consequently the AAT could not review a claim which had not been considered by the Commission. The Court agrees and does not consider that any claim for an increase in pension based on the existence of "irritable bowel disease" was properly before the AAT for its consideration. Accordingly there is no reason to depart from the form of order referred to in the preceding paragraph of these reasons. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 11 November 1999 Counsel for the Applicant: Mr P J Hanks Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr D De Marchi Solicitor for the Respondent: De Marchi & Associates Date of Hearing: 14 October 1999 Date of Completion of Written Submissions: 5 November 1999 Date of Judgment: 11 November 1999