Case: Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82
Outcome: applied
The appeal focuses on the alleged failure of the Tribunal to approach the question whether the applicant's CP was war-caused in the manner prescribed by subss 120(1) and (3) and 120A(3) of the Veterans' Entitlements Act 1986 (Cth) ('the Act'), as explained in the authorities, including Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82 ; Repatriation Commission v Cornelius [2002] FCA 750 ; Meehan v Repatriation Commission (2002) 35 AAR 353 ; Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 ; and Hardman v Repatriation Commission [2005] FCAFC 83. In particular, the applicant contends that the Tribunal erred in law by: (1) Treating clinical onset of CP as requiring the contemporaneous diagnosis of CP ground 4(i); (2) impermissible fact-finding at the reasonable hypothesis stage that one of the elements required to raise a reasonable hypothesis connecting CP with the applicant's war service (clinical onset of CP within six months of direct trauma to the patella) did not occur within the prescribed time ground 4(ii); and (3) rejecting the alternative hypothesis (of inability to obtain appropriate clinical management in Vietnam for pre-existing CP) on the basis of impermissible fact-finding that the applicant's CP did not have its clinical onset until after his operational service grounds 4(iii) and 4(iv). 13 Subsection 120A(3) of the Act relevantly provides that a hypothesis connecting a person's injury or disease 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. That is, the hypothesis raised by the material will only be reasonable if the hypothesis is consistent with, or fits the template of, the Statement of Principles: see Deledio at 96, endorsing the observations of Heerey J at first instance in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275. 14 The method by which subss 120(1), 120(3) and 120A(3) are applied was explained in Deledio at 97 98, to which the Tribunal referred at [33] [35]. The threshold question remains whether the material before the decision-maker points to an hypothesis of connection between (in the case of a claim in respect of a veteran's injury or disease) the injury or disease and the particular circumstances of the veteran's service. Subsection 120A(3) adds the additional requirement that the hypothesis must be upheld by the SoP made under subs 196B(2) of the Act for the kind of injury suffered or disease contracted by the veteran. 26 Consistent with the first step in Deledio at 97, the Tribunal considered all the material before it and found at [33] of its reasons that that material '... raises a reasonable hypothesis connecting Mr Riley's CP with his war service within the meaning of subs 120(3) of the Act'. 27 The Tribunal then proceeded to the second Deledio step and found at [34] that there is an SoP in force in respect of the relevant injury, which it identified as Instrument No. 33 of 2001. 28 The Tribunal then turned to the third Deledio step in 'determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoP'. The Tribunal at [35] said: 'This step involves considering all of the material before me, but without making any findings of fact at this stage of the process. If the evidence taken as a whole does not fit within the relevant SoP factors, then any hypothesis would not be reasonable: section 120A(3). The claim would therefore not be successful.' 29 The Tribunal then proceeded to 'determine' when the clinical onset (or clinical worsening) of the condition occurred because, in its words '... in respect of all of the relevant factors with the exception of factor 5(h) it is essential ...' (at [36]). 30 At [37] the Tribunal reasoned that because the precise dates of the incidents in Vietnam are unclear, the most generous interpretation of the date of the incidents, being the date the applicant ceased operational service in May 1967, the clinical onset (or worsening) would need to have occurred by November 1967. 44 The applicant's complaint appears to be with the Tribunal's use of the expression 'determine' in [36] of its reasons. He suggests that the expression 'determine' means that the Tribunal embarked on impermissible fact-finding. I do not agree. I agree with the Commission's short answer, that the Tribunal was simply acknowledging that, in terms of the third step in Deledio , it was required to 'form an opinion' and that the expression 'determine', in the context of the Tribunal's understanding that its task was not to find facts (at [35]), meant no more than forming an opinion. 45 The Tribunal, at [45] (second) and [46] (second) of its reasons, was doing no more than setting out the process by which it formed the opinion that the hypotheses were not reasonable by reference to factors 5(a), 5(b) and 5(e) of the SoP. It was not, despite the use of the word 'find' in [46] (second), involved in an exercise in fact-finding, specifically, as to the time when the applicant experienced clinical onset of his CP, outside the process of forming that opinion. 46 Nor was the Tribunal involved in resolving possible conflicts in the evidence because there were none. The Tribunal's non-acceptance of the evidence of Dr Giblin referred to at [45] (second) of its reasons was not by way of preferring the evidence of another practitioner; rather, it was by reference to the accepted definition of clinical onset referred to in [33] above.