FEDERAL COURT OF AUSTRALIA Repatriation Commission v Brown [2002] FCA 19 ADMINISTRATIVE LAW – review of decision of Administrative Appeals Tribunal ("AAT") – veteran's entitlements – whether AAT erred in applying a Statement of Principle not in force at the time of initial application Veteran's Entitlements Act 1986 (Cth) ss 9, 13, 120, 120A, 126, 196B Repatriation Commission v Olsen [2002] FCA 12 referred to Repatriation Commission v Gorton [2001] FCA 1194 followed Repatriation Commission v Keeley (2000) 98 FCR 108 referred to REPATRIATION COMMISSION V JOAN ELLEN BROWN, LEGAL REPRESENTATIVE OF THE LATE LEONARD KEITH BROWN N 34 of 2001 STONE J 22 JANUARY 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 34 OF 2001 BETWEEN: REPATRIATION COMMISSION APPLICANT AND: JOAN ELLEN BROWN, LEGAL REPRESENTATIVE OF THE LATE LEONARD KEITH BROWN RESPONDENT JUDGE: STONE J DATE OF ORDER: 22 JANUARY 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the application be dismissed; 2. the applicant pay the respondent's costs. 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 N 34 OF 2001 BETWEEN: REPATRIATION COMMISSION APPLICANT AND: JOAN ELLEN BROWN, LEGAL REPRESENTATIVE OF THE LATE LEONARD KEITH BROWN RESPONDENT JUDGE: STONE J DATE: 22 JANUARY 2002 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant ("Commission") has applied to the Court under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) seeking review of a decision of the Administrative Appeals Tribunal ("AAT") made on 19 December 2000. The AAT set aside the Commission's decision that Mr Leonard Brown's malignant neoplasm of the prostate was not war-caused and remitted the matter to the Commission for assessment of the rate of pension payable to Mr Brown, who was the applicant in those proceedings. 2 Unfortunately, Mr Brown died only a few days before the hearing of this application for a review of the AAT decision. Order 6 r 10 of the Federal Court Rules provides that where a party to a proceeding dies but the cause of action in the proceeding survives, the proceeding does not abate by reason of that death. Section 126(1) of the Veterans' Entitlements Act 1986 (Cth) ("Act") applies in such a case. It provides: "On the death of a claimant, the claim does not lapse in respect of any period before the death of the claimant, but the legal personal representative of the claimant, or a person approved by the Commission, may take such action in respect of the claim as the claimant could have taken if the claimant had not died and, for that purpose, the legal personal representative or person so approved shall be treated as the claimant." 3 At the hearing, counsel for the Commission, Mr P J Hanks QC, advised that the Commission frequently approves another person to continue the claim of a claimant under the Act and that it was expected that Mr Brown's widow would be approved to continue the claim originally lodged by Mr Brown on 25 May 1995. Although approval had not, at that stage, formally been given, I permitted the hearing to continue and formal orders that Mrs Joan Ellen Brown, as legal representative of her late husband, be named as respondent were made by consent shortly after the hearing. 4 Mr Brown rendered operational service in the Australian Army from 20 May 1940 until 7 April 1945. Under the Act, certain diseases connected with such service are defined as "war-caused diseases"; s 9(1)(b). Section 13(1) of the Act renders the Commonwealth liable to pay a pension to a veteran who has become incapacitated from a war-caused disease. 5 Section 9(1) of the Act defines a disease as "war-caused" if and only if: "(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; (b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; (c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty; (d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease; (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;" 6 In determining whether or not a disease is "war-caused", regard must also be had to s 120 and s 120A of the Act. Section 120(1) states that the Commission shall determine that a disease was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) provides that 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 rendered, then it shall be satisfied beyond a reasonable doubt that there is not sufficient ground for determining that a disease is war-caused. 7 Section 120A(3) of the Act provides that a hypothesis connecting a disease contracted by a person with the circumstances of service rendered by the person is reasonable only if there is in force a Statement of Principles ("SoP") or determination of the Commission upholding the hypothesis. The restriction in s 120A(3) does not apply if there is no SoP in respect of the relevant disease and no declaration by the Repatriation Medical Authority ("Authority") under s 196B(6) that it does not propose to make such a SoP; s120A(4). The Commission is not entitled to presume that a disease is war-caused; s 120(5)(b). 8 SoPs are disallowable instruments for the purposes of s 46A of the Acts Interpretation Act 1901 (Cth); s 196D of the Act. Most SoPs are made by the Authority under s 196B(3) of the Act: "If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to: (a) … (b) defence service…rendered by members of the Forces; the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out: (c) the factors that must exist; and (d) which of those factors must be related to service rendered by a person; before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service." The amendment of SoPs is provided for in s 196B(8): "If, after carrying out the investigation [see s 196B(4)], the Authority is of the view that there is a new body of sound medical-scientific evidence available that, together with the sound medical-scientific evidence previously considered by the Authority, justifies the making of a Statement of Principles, or an amendment of the Statement of Principles already determined, in respect of that kind of injury, disease or death, the Authority must: (a) determine a Statement of Principles in respect of that kind of injury, disease or death under subsection (2) or (3); or (b) make a determination amending the Statement of Principles determined under subsection (2) or (3) in respect of that kind of injury, disease or death; or (c) revoke the Statement of Principles determined under subsection (2) or (3), and determine a new Statement of Principles under subsection (2) or (3) in respect of that kind of injury, disease or death; as the case requires." 9 If the Commission makes a decision unfavourable to a claimant, that claimant can have the decision reviewed by the Veterans' Review Board ("Board") (s 135 of the Act). If dissatisfied with the Board's decision, the claimant can apply to the Administrative Appeals Tribunal ("AAT") for a review of the decision of the Commission as affirmed or varied by the Board or, where relevant, for a review of the decision of the Board substituting its decision for that of the Commission; s 175(1) of the Act. In reviewing decisions of the Board the AAT exercises the same powers and discretions as the Commission or the Board as the case may be; Administrative Appeals Tribunal Act s 43(1). 10 In this case two SoPs were before the AAT, namely Instrument No. 95 of 1995 ("the 1995 Instrument") and Instrument No. 84 of 1999 ("the 1999 Instrument"). The 1995 Instrument was in force at the time of the decision of the Commission. It was amended in December 1996, after the Commission's decision but prior to the Board's decision. The 1999 Instrument came into force after the Board's decision but prior to the AAT's decision. It was common ground before the AAT that Mr Brown's claim could not succeed on the basis of the 1995 Instrument. The Tribunal held, however, that the claim could succeed on the basis of the 1999 Instrument and that this SoP could be applied in determining the matter. 11 The only issue raised before me is a question of law, namely whether the AAT was correct in applying the 1999 Instrument to Mr Brown's claim. This is exactly the same issue as was raised in Repatriation Commission v Olsen [2002] FCA 12 ("Olsen"), which was heard together with this matter. . At the hearing it was accepted as common ground, correctly in my view, that the issue was independent of whether the condition complained of was said to be defence-caused or war-caused. Accordingly, my discussion of this question of law in Olsen is directly applicable here and it is not necessary to repeat that discussion. 12 The question of whether the AAT was correct in applying an SoP determined after the Commission's decision has been authoritatively answered by the decision of the Full Court in Repatriation Commission v Gorton [2001] FCA 1194 ("Gorton"). In Gorton the Full Court held that the decision in Repatriation Commission v Keeley (2000) 98 FCR 108 did not preclude the AAT applying an SoP that was not in force when the Commission's decision was made. In Gorton, Allsop J (with whom Emmett J agreed) expressed the principle as follows (at [62]): "Subsection 120A(3) makes it clearly compulsory for the Commission to examine the current SoP. In exercising the review under s 43 of the [Administrative Appeals Tribunal Act 1975 (Cth)] I see no reason why the direction under subs 120A(3) does not bind the Tribunal. The only additional factor which the Tribunal must consider, if it comes to a view that the application of the current SoP leads to a conclusion that the injury, disease or death was not service caused, is that the claimant also has an accrued right to have his or her position judged by reference to the SoP in force at the date of the Commission's decision by force of the decision in Keeley." 13 The decision of the AAT was clearly correct and the application before this Court must be refused with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone . Associate: Dated: 22 January 2002 Counsel for the Applicant: Mr P J Hanks QC with Ms R M Henderson Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr J Fitzgerald Solicitor for the Respondent: Legal Aid Commission of NSW Date of Hearing: 11 April 2001 Date of Judgment: 22 January 2002