FEDERAL COURT OF AUSTRALIA Brown v Repatriation Commission [2006] FCA 914 VETERANS' ENTITLEMENTS – appeal from Administrative Appeals Tribunal – nature of appeal pursuant to s 44(1) of Administrative Appeals Tribunal Act 1975 (Cth) – appeals on a question of law – review under s 5 of the ADJR Act – whether the Tribunal misunderstood evidence – 'kind of death' of veteran under Veterans' Entitlements Act 1986 (Cth) –whether denial of procedural fairness by Tribunal in not accepting a submission put to it jointly by the parties Administrative Appeals Tribunal Act 1975 (Cth)s 44(1) Veterans' Entitlements Act 1986 (Cth)s 6A, s 120A Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth) Federal Court Rules O 54 r 2A, r 3(2) Australian Securities and Investment Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 cited Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321 cited Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28cited Comcare v Etheridge [2006] FCAFC 27 cited Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 cited HBF Health Fund Inc v Minister for Health and Ageing [2006] FCAFC 34 referred to Purvis v Dairy Adjustment Authority (No 2) [2006] FCAFC 38 cited Repatriation Commission v Hancock (2003) 37 AAR 383 referred to Repatriation Commission v Towns (2003) 38 AAR 77referred to EVE BROWN v REPATRIATION COMMISSION NSD 885 of 2006 BRANSON J 19 JULY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 885 of 2006 BETWEEN: EVE BROWN APPLICANT AND: REPATRIATION COMMISSION RESPONDENT JUDGE: BRANSON J DATE OF ORDER: 19 JULY 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Leave to further amend the amended notice of appeal be refused. 2. The appeal be dismissed. 3. The applicant pay the respondent's costs. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 885 of 2006 BETWEEN: EVE BROWN APPLICANT AND: REPATRIATION COMMISSION RESPONDENT JUDGE: BRANSON J DATE: 19 JULY 2006 PLACE: SYDNEY REASONS FOR JUDGMENT INTRODUCTION 1 Mr Robert Brown served in the Australian Army between 1 October 1941 and 20 July 1943. From 21 July 1943 to 17 January 1946 he served in the Royal Australian Air Force. He is taken to have been rendering operational service during each of the above periods (s 6A of the Veterans' Entitlements Act 1986 (Cth) ('the Veterans' Entitlements Act')). 2 Mr Brown died on 29 June 2003 aged 82. The applicant is his widow. She claimed a war widow's pension asserting that her husband's death arose out of, or was attributable to, his war service. The bases of her assertions were that his habit of smoking was war-caused and that his smoking contributed to his death through ischaemic heart disease. 3 Mr Brown's death certificate records in the space provided for 'Cause of Death and Duration of last illness': '(I) (a) Cardiorespiratory exhaustion, 1 week (b) Progressive non-Hodgkin's lymphoma, 9 months (II) Sepsis (chest/urinary), 1 week'. 4 Mrs Brown seeks an order from the Court setting aside a decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal (Brown v Repatriation Commission [2006] AATA 348) which affirmed decisions of the Repatriation Commission and the Veterans' Review Board rejecting her claim for a war widow's pension. Each of those decisions was based on a finding that Mr Brown's death was due to non-Hodgkin's lymphoma. 5 For the reasons set out below I have concluded that Mrs Brown is not entitled to the relief that she seeks. jurisdictional issues 6 Mrs Brown appealed to this Court from the decision of the Tribunal in reliance on s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act'). That subsection authorises an appeal to the Court 'on a question of law'. 7 The limited nature of an appeal on a question of law has recently been considered by the Full Court in Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321, Comcare v Etheridge [2006] FCAFC 27, HBF Health Fund Inc v Minister for Health and Ageing [2006] FCAFC 34 and Purvis v Dairy Adjustment Authority (No 2) [2006] FCAFC 38. It is not necessary to repeat here everything said in those cases. It is sufficient to observe that they make clear that the subject matter of an appeal under s 44(1) of the AAT Act is the question (or questions) of law stated in the notice of appeal. The Court has no jurisdiction on such an appeal to evaluate the evidence before the Tribunal. Order 53 r 3(2) of the Federal Court Rules (and see also Form 55A) requires the notice of appeal to state separately the question or questions of law to be raised on the appeal, the order sought and the grounds relied upon in support of the order sought. This final requirement calls for a brief statement explaining why the answer to the question (or questions) of law will lead to the making of the order sought. 8 At the first directions hearing I drew the attention of Mrs Brown's counsel to the fact that there were recent Full Court authorities touching on appeals under s 44(1) of the AAT Act and referred him to the Etheridge judgment in particular. There was an exchange between us concerning the proper formulation of a question of law, the requirements of O 53 r 3(2) of the Federal Court Rules and the alternative source of jurisdiction provided by s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act'). Counsel disavowed any wish to rely on the ADJR Act but sought, and was granted, leave to file and serve an amended notice of appeal pursuant to s 44(1) of the AAT Act. 9 The amended notice of appeal purports to identify the following questions of law: '2.1 Whether the Tribunal, in determining that the death of the veteran within the meaning of "death" in sections 8 and 120 of the Act, and the only kind of death within the meaning of "kind of death" in section 120A of the Act, was from non-Hodgkins lymphoma, mistook the evidence given by Dr Edwards. 2.2 Further or in the alternative to paragraph 2.1, whether, on the proper construction of "death" as that term appears in sections 8 and 120 of the Act and "kind of death" as that term appears in section 120A of the Act, and given purported reliance by the Tribunal upon the evidence given by Dr Edwards, the meaning of those terms necessitated the Tribunal finding that the "death" and/or "kind of death" of the veteran was or included death from pneumonia-related infection. 2.3 Whether the Tribunal afforded procedural fairness to the parties when it decided that the veteran had suffered a "kind of death" different from the "kind of death" put to it by the parties.' 10 As counsel for the applicant conceded at hearing, question 2.1 is not a question of law. What was the understanding of the Tribunal on any issue is a question of fact. It is not appropriate for the Court on an appeal under s 44(1) to undertake a comparison of the Tribunal's understanding of a particular issue with the evidence adduced before it for the purpose of determining whether the Tribunal misunderstood the evidence. Question 2.1 is therefore incapable of constituting the subject matter, or part of the subject matter, of an appeal under s 44(1) of the AAT Act. 11 Question 2.2 is not easy to understand. It appears to involve some questions of law; ie the proper construction of statutory expressions. However, it also appears to call for an evaluation of the evidence given by Dr Edwards. It is thus a mixed question of fact and law and, for this reason, not a question of law within the meaning of s 44(1) of the AAT Act (see Etheridge at [16]). Therefore, it is also incapable of constituting the subject matter, or part of the subject matter, of an appeal under s 44(1) of the AAT Act. 12 Question 2.3 is intended to raise for consideration whether the decision of the Tribunal should be set aside because the Tribunal: (a) was obliged to afford Mrs Brown procedural fairness; and (b) failed to do so in that it reached the conclusion that the kind of death suffered by Mr Brown was non-Hodgkin's lymphoma when that conclusion was not urged on the Tribunal by either Mrs Brown or the Repatriation Commission. 13 Sitting alone I am bound by the majority decision of the Full Court in Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 that a complaint of denial of procedural fairness may be raised on an appeal under s 44(1) of the AAT Act. However, it seems to me, as I have previously sought respectfully to suggest, that the majority judgment in Clements wrongly equates an error of law with a question of law (see, for example, Birdseye at [18]; Australian Securities and Investment Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at [46]; Etheridge at [13]-[17])). This is the view that was taken by Gyles J, the minority judge in Clements at [58]-[67]. See also Purvis esp at [7]. 14 At the hearing of the appeal, Mrs Brown sought leave to rely on a further amended notice of appeal which included a claim for relief pursuant to s 5 of the ADJR Act. The proposed further amended notice of appeal did not seek to expand the subject matter of the proceeding; ie, Mrs Brown's complaints about the decision of the Tribunal remained unchanged. No application was made for an extension of time within which to lodge an application for review under the ADJR Act (see O 54 r 2A of the Federal Court Rules). No attempt was made to frame the proposed amendments substantially in the form prescribed for an application under the ADJR Act (O 54 r 2). 15 I reserved my ruling on the application for leave to further amend the amended notice of appeal until publication of these reasons for judgment. Unless it can be established that the proposed amendment would strengthen Mrs Brown's claim for relief nothing would be gained by granting the application. 16 I therefore turn to consider the merit of the complaints made by Mrs Brown about the decision of the Tribunal. did the tribunal misunderstand dr edwards' evidence? 17 Dr Edwards provided a written report on the circumstances surrounding Mr Brown's death. In his report Dr Edwards expressed the opinion that Mr Brown's terminal illness was due to sepsis originating in his lungs and urinary tract. He stated that Mr Brown's non-Hodgkin's lymphoma had reduced his ability to fight infection and the treatment for that illness similarly compromised his immune state. 18 In oral evidence before the Tribunal Dr Edwards said: 'the final cause of death was the pneumonic process, the pneumonia, the infection. The underlying cause of death was the rapidly progressive malignant disease.' 19 Dr Edwards also gave oral evidence that he did not think that ischaemic heart disease played a 'big part' in Mr Brown's death. He observed: 'In fact we had good evidence that his cardiologist was very happy with his cardiac state and that the malignant process supervened.' 20 In its written reasons for decision the Tribunal accurately recorded that it was Dr Edwards' opinion that Mr Brown died of overwhelming sepsis, that non-Hodgkin's lymphoma had reduced Mr Brown's ability to fight infection and that treatment for that illness had similarly compromised his immune state (see [17]). The Tribunal also noted that Dr Edwards' position could be summarised in terms of the evidence given by him which is identified in [18] above. 21 The Tribunal summarised its understanding of Dr Edwards' evidence, and the conclusions to be derived therefrom, in the following passage from its reasons for decision: 'As we understand Dr Edwards's evidence, the pneumonic infection was a complication of the non-Hodgkin's lymphoma and its treatment. This is not a case of multiple "kinds of death". Accordingly, we find that the kind of death suffered by Mr Brown was "non-Hodgkin's lymphoma". This is in accord with the clinical decision of the palliative care team taken three days before Mr Brown died, that his condition was incurable.' 22 Mrs Brown, by her counsel, submitted that Dr Edwards' evidence was not to the effect that the sepsis was a complication of the lymphoma alone. In support of this submission counsel drew attention to certain answers given by Dr Edwards in cross-examination. During his cross-examination Dr Edwards said that ischaemic heart disease was a significant underlying disease process that Mr Brown had. He agreed that he might have included ischaemic heart disease in part 2 of a death certificate for Mr Brown; that is, in the section of the certificate which Dr Edwards described as appropriate for recording 'contributing factors, factors that might be in the background, present for many years'. He contrasted factors of that kind with 'causes of death'. 23 Dr Edwards was not asked in cross-examination, or it seems at any time, to express an opinion on whether, because of his ischaemic heart disease, Mr Brown died from pneumonia earlier than would otherwise have been the case. Nor was Dr Edwards asked to express an opinion on whether ischaemic heart disease otherwise accelerated Mr Brown's death. In the absence of answers from Dr Edwards on these questions, it is to be inferred from the answer recorded in [19] above, that Dr Edwards did not think that ischaemic heart disease accelerated Mr Brown's death. 24 The contention that the Tribunal misunderstood Dr Edwards' evidence is untenable. Dr Edwards' evidence was that the proximate or ultimate cause of Mr Brown's death was pneumonia caused by sepsis originating in his lungs and urinary tract; Mr Brown was unable to resist that proximate or ultimate cause because of his rapidly progressive non-Hodgkin's lymphoma. Dr Edwards, for this reason, described non-Hodgkin's lymphoma as Mr Brown's underlying cause of death. While Dr Edwards accepted that Mr Brown suffered from ischaemic heart disease, nothing in his report or evidence provided support for a conclusion that Mr Brown's heart disease played a part in, or accelerated, his death from pneumonia. 25 Dr Edwards' evidence, as summarised above, is entirely consistent with the conclusion of the Tribunal that the Statement of Principles concerning Non-Hodgkin's Lymphoma (dated 12 August 2003) is a Statement of Principles under subsection 196B(2) of the Veterans' Entitlements Act in respect of the kind of death suffered by Mr Brown (see s 120A of that Act). That Statement of Principles defines 'death from non-Hodgkin's lymphoma' to include 'death from a terminal event or condition that was contributed to by the person's non-Hodgkin's lymphoma' (see Instrument No 37 of 2003). the kind of death met by Mr brown 26 The Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth) introduced s 120A into the Veterans' Entitlements Act. Section 120A modifies the operation of s 120 of the Act. Subsections 120A(2) and (4) introduce into the Veterans' Entitlements Act the concept of a Statement of Principles in respect of a 'kind' of death. 27 Subsection 120A(3) relevantly provides that, for the purposes of s 120(3), a hypothesis connecting the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force a Statement of Principles that upholds the hypothesis. Section 120A(4) relevantly provides that subsection (3) does not apply in relation to a claim in respect of the death of a person if no Statement of Principles has been determined in respect of the kind of death met by the person. 28 The Court has not yet sought to provide definitive guidance on the meaning of 'kind of death' in s 120A – although the concept has been considered in Repatriation Commission v Hancock (2003) 37 AAR 383 and Repatriation Commission v Towns (2003) 38 AAR 77. This is not an occasion for the provision of that definitive guidance. 29 Mrs Brown contended that the purported reliance by the Tribunal on the evidence of Dr Edwards necessitated the Tribunal finding that a kind of death met by Mr Brown was pneumonia-related infection. This contention must, in my view, be rejected for the following reasons. 30 The Tribunal was alive to the possibility that multiple medical conditions could have contributed to Mr Brown's death. It observed in its reasons for decision: 'There can be multiple medical conditions that contribute to a particular death in the sense of a medical cause that expedited the death. If a medical condition contributed to the death and is relevantly related to service then that is sufficient to establish entitlement to pension (see Hancock [2003] FCA 711 at [8]-[9].' 31 However, the Tribunal concluded that the kind of death met by Mr Brown was the kind of death in respect of which a Statement of Principles had been determined, namely the Statement of Principles concerning Non-Hodgkin's Lymphoma dated 12 August 2003. That Statement of Principles, as mentioned in [25] above, is relevant to a death from a terminal event which was contributed to by the person's non-Hodgkin's lymphoma. It defines 'terminal event' to mean the proximate or ultimate cause of death including pneumonia, respiratory failure, cardiac arrest, circulatory failure or cessation of brain function. As discussed above, the Tribunal considered Mr Brown's pneumonia to have been a terminal event as that expression is defined in the Statement of Principles. 32 The above conclusion of the Tribunal has not been shown to have involved any error of law or otherwise to be amenable to review under s 5 of the ADJR Act. Indeed I respectfully suggest that the Tribunal's decision was manifestly reasonable having regard to the evidence and other material before it. 33 In the circumstances it is not necessary for me to give consideration to whether a veteran may meet more than one kind of death, as opposed to a death to which a number of medical conditions contribute, for the purposes of s 120A(4) of the Veterans' Entitlements Act. denial of procedural fairness 34 The transcript of the hearing before the Tribunal discloses the following: (a) Dr Lynch, a tribunal member, put to Mrs Brown's representative – 'The point [on which] this case will either rise or fall is the fact of whether pneumonia was the terminal event and the major cause of his death was his lymphoma.'; (b) Dr Lynch subsequently put to Mrs Brown's representative – 'if you put this man's cause of death down to pneumonia or pneumonic infection the whole statistics about cause of death would become a nonsense. It's really – because this man has got bone marrow evidence of a lymphoma … the major cause of his death in medical parlance would be his lymphoma.'; (c) The respondent's representative submitted to the Tribunal – 'If it is the opinion of this Tribunal that pneumonia is not a satisfactory kind of death and it's merely a terminal event then the question needs to be determined by this Tribunal what is the kind of death and I would suggest very strongly that a non-Hodgkin's lymphoma is a kind of death and that's perhaps not determinative in this case. The question is, is ischaemic heart disease a kind of death and that would be determined on the balance of probabilities and the respondent would say that it is not.' (d) Mrs Kelly, the senior member of the Tribunal, put to Mrs Brown's representative – 'What if we decide that the kind of death was non-Hodgkin's lymphoma?' And he replied – 'Well, it's a matter of how you do it I suppose.' 35 The suggestion that the Tribunal failed to afford Mrs Brown procedural fairness in respect of its decision that the kind of death met by Mr Brown was non-Hodgkin's lymphoma is fully met by the above extracts from the hearing transcript. An administrative tribunal such as the AAT is not obliged to accept a submission put to it jointly by the parties to a dispute. The duty of the AAT is to make the correct or preferable decision in the circumstances (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577). 36 The above extracts from the Tribunal hearing reveal that the Tribunal let the parties know the approach that it proposed to take, and gave them an opportunity to be heard on whether it should find that the kind of death met by Mr Brown was pneumonia. The Tribunal could hardly have made it plainer that, if it concluded that pneumonia was simply a terminating event in Mr Brown's death, it was unlikely to find that he met a 'pneumonia kind of death'. The respondent's representative showed his appreciation of the approach foreshadowed by the Tribunal in the statement reproduced in [34(c)] above. 37 Mrs Brown was not denied procedural fairness by the Tribunal in the way alleged in paragraph 2.3 of the amended notice of appeal or at all. conclusion 38 As I am satisfied that any application made by Mrs Brown for review of the decision of the Tribunal pursuant to the ADJR Act would fail, the appropriate course is to reject the application to further amend the amended notice of appeal. I do so. 39 I therefore turn to the appeal under s 44(1) of the AAT Act. As mentioned above, neither paragraph 2.1 nor 2.2 of the amended notice of appeal identifies a question of law within the meaning of s 44(1) of the Act. In any event, the complaints thereby made of the decision of the Tribunal are without merit. As stated earlier, the question in paragraph 2.3 contains within it a false assumption, namely that the AAT is obliged to accept a submission advanced jointly by the parties to a dispute. In any event, I am satisfied that Mrs Brown was not denied procedural fairness by the Tribunal. 40 The appeal from the decision of the Tribunal will be dismissed with costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 19 July 2006 Counsel for the Applicant: Mr Vincent Solicitor for the Applicant: Dibbs Abbott Stillman Counsel for the Respondent: Ms Henderson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 June 2006 Date of Judgment: 19 July 2006