Federal Court of Australia

[Index] [Search] [Download] [Help]

Meehan v Repatriation Commission [2003] FCA 1371 (28 November 2003)

Last Updated: 17 December 2003

FEDERAL COURT OF AUSTRALIA

Meehan v Repatriation Commission [2003] FCA 1371

VETERANS' ENTITLEMENTS - reasonable hypothesis based on a statement of principles - whether generalised anxiety disorder was war-caused

Veterans' Entitlements Act 1986 (Cth) ss 120, 120A & 196B

Bushell v Repatriation Commission (1992) 175 CLR 408 applied

Byrnes v Repatriation Commission (1993) 177 CLR 564 applied

Lees v Repatriation Commission (2002) 74 ALD 68 referred to

Repatriation Commission v Deledio (1998) 83 FCR 82 applied

JAMES SYDNEY MEEHAN v REPATRIATION COMMISSION

N 683 OF 2003

JACOBSON J

SYDNEY

28 NOVEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY / N 683 of 2003

ON APPEAL FROM THE VETERANS' APPEAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: / JAMES SYDNEY MEEHAN
APPLICANT
AND: / REPATRIATION COMMISSION
RESPONDENT
JUDGE: / JACOBSON J
DATE OF ORDER: / 28 NOVEMBER 2003
WHERE MADE: / SYDNEY

THE COURT ORDERS THAT:

1. The appeal 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 683 of 2003

ON APPEAL FROM THE VETERANS' APPEAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: / JAMES SYDNEY MEEHAN
APPLICANT
AND: / REPATRIATION COMMISSION
RESPONDENT
JUDGE: / JACOBSON J
DATE: / 28 NOVEMBER 2003
PLACE: / SYDNEY

REASONS FOR JUDGMENT

Introduction

1 This is an appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal ("the Tribunal") affirming a decision of a delegate of the Repatriation Commission ("the Commission") rejecting a claim by the Applicant for a disability pension for post traumatic stress disorder. The Commission rejected the claim because it found that the Applicant's recollection of the events, which were said to have caused the disorder, were unreliable. The effect of the question of law stated in the Notice of Appeal is whether this finding satisfied the standard of proof laid down by s 120(1) of the Veterans' Entitlements Act 1986 (Cth) ("the Act") under which the Commission is to determine that an injury was war-caused unless it is satisfied beyond a reasonable doubt that there is no sufficient ground for making that determination.

2 The proceedings have a long history. The decision of the Tribunal was its third decision on the Applicant's claim. Its first and second decisions were successfully appealed to the Court and remitted to the Tribunal for further hearing. On the third rehearing the Tribunal determined that the material before it, which raised a claim for generalised anxiety disorder ("GAD") based on the Applicant's service in Vietnam, raised a reasonable hypothesis connecting the disability with the circumstances of the Applicant's service in accordance with s 120(3) of the Act. However, the Tribunal was satisfied beyond a reasonable doubt that there was no sufficient ground for determining that the Applicant's general anxiety disorder was a war-caused disease.

The Legislation

3 Section 120 of the Act relevantly provides:-

(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

...

(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a) that the injury was a war-caused injury or a defence-caused injury;

(b) that the disease was a war-caused disease or a defence-caused disease; or

(c) that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

...

(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

(b) the Commonwealth, the Department or any other person in relation to such a claim or application;

any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.

4 Section 120A(3) provides:

(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or 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) a Statement of Principles determined under subsection 196B(2) or (11); or

(b) a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

5 Section 196B(2) of the Act relevantly provides for the Repatriation Medical Authority ("the Authority") to determine a Statement of Principles ("SoP") where it is of the view that sound medical-scientific evidence indicates that a particular kind of disease can be related to operational service. The Authority is then to determine an SoP for that kind of disease setting out the factors which must exist, as a minimum, before it can be said that a reasonable hypothesis has been raised connecting the disease with the circumstances of service.

6 The Authority determined a SoP for GAD. It is to be found in Instrument No 48/94 as amended by 275/95. The relevant factors as stated in the instrument are 1(b) and 1(c) which are as follows:-

(b) experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder; or

(c) experiencing a stressful event not more than two years before the clinical worsening of generalised anxiety disorder;

The Proper Construction and Application of s 120(1) and s 120(3) of the Act

7 This is to be found in the decision of the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 ("Bushell") as further explained in Byrnes v Repatriation Commission (1993) 177 CLR 564 ("Byrnes"). These cases dealt with the position prior to the amendments passed in 1994. The position after the amendments was explained by a Full Court (Beaumont, Hill and O'Connor JJ) in Repatriation Commission v Deledio (1998) 83 FCR 82 ("Deledio").

8 In Bushell, Mason CJ, Deane and McHugh JJ observed at 412 that the claimant for a pension has no onus of proving any matter which might be relevant to the claim; see s 120(6). Thus, as their Honours said at 412 to 413, the claim having been made, it must succeed unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination; see s 120(1). Accordingly, the Commission must be satisfied, to the criminal standard, of a negative proposition. Their Honours pointed out at 413 that the meaning of the expression "beyond a reasonable doubt" is not left at large. Satisfaction to that standard is deemed to be established if, after considering the whole of the material, the Commission is of the opinion that it does not raise a reasonable hypothesis connecting the disease with the circumstances of service; see s 120(3).

9 Mason CJ, Deane and McHugh JJ then turned at 413 to 416 to the relationship between s 120(1) and s 120(3). They observed at 413 that the purpose of s 120(3) is to ensure that a claim to which s 120 applies is not met unless there is some material which raises the relevant causal hypothesis. Their Honours quoted at 413 a passage from the explanatory memorandum which stated that s 120(3) will require the Commission to refuse the claim where at the end of its consideration of the material no reasonable hypothesis has been raised and, if raised, no such reasonable hypothesis remains.

10 Their Honours said at 414 that the material will raise a reasonable hypothesis if it points to some facts which support the hypothesis and if the hypothesis can be regarded as reasonable. They then referred to the circumstances in which a hypothesis cannot be said to be reasonable, (i.e. where it is contrary to known scientific facts or obviously fanciful or untenable).

11 If the material does raise a reasonable hypothesis, as their Honours stated at 415, the claim must be dealt with in accordance with s 120(1). They pointed out at 415 that s 120(3) is not concerned with the proof or satisfaction of the claim but with whether there is some material which calls for determination under s 120(1). As they said at 416, once the material raises a reasonable hypothesis the operation of s 120(3) is spent and the case falls to be determined under s 120(1).

12 Their Honours then explained the proper construction and application of s 120(1) in the following passage at 416:-

The Commission will be satisfied beyond reasonable doubt `that there is no sufficient ground for making [the] determination' if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination. But unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed; we cannot conceive of a case where, for the purpose of s 120(3), the hypothesis is reasonable having regard to the raised facts, yet the Commission could be satisfied, `beyond reasonable doubt, that there is no sufficient ground for making the determination' even though the raised facts are not disproved. Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc with the operational service, it seems convenient simply to treat the case as governed by the application of s 120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist.

13 In Byrnes, Mason CJ, Gaudron and McHugh JJ gave the following summary of the applicable principles at 571:-

The position may be summarized as follows: (1) First, sub-s.(3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s.(1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.

14 The SoP requirement was introduced by the 1994 amendments which included s 120A and s 196B. In Deledio at first instance (see (1997) ALD 261), Heerey J explained the role of the SoP. The Full Court agreed at 95 to 96 with his Honour's explanation. His Honour observed that the 1994 amendments left intact the "twin pillars" of the reverse "onus of proof" (i.e. satisfaction of the negative proposition because there is in fact no onus) beyond a reasonable doubt and the reasonable hypothesis. Accordingly, his Honour said that the new regime of SoP's had to be given an operation consistent with s 120(1) and s 120(3) as expounded by the High Court in Bushell and Byrnes.

15 The SoP's function, as explained by his Honour, is to prescribe a medical-scientific standard with which a hypothesis must be consistent. It is a statute-backed declaration of what is a proved or known scientific fact.