Case: McKenna v Repatriation Commission [1999] FCA 323 ; (1999) 86 FCR 144
Outcome: applied
I note that, in interpreting and applying ss 120(3) and 120A (3) of the Act , the Tribunal is required to ask and answer the question whether there is in force a Statement of Principles, or multiple Statements of Principles, determined under s 196B of the Act , that upholds the whole , not just part, of the Veteran's hypothesis: McKenna v Repatriation Commission [1999] FCA 323 ; (1999) 86 FCR 144 at 150-151. Further, a relevant hypothesis must consist of a link or links which connect, at one end, the type of death suffered by the Veteran, which is the basis of the claim under the Act , with, at the other end, the circumstances of the particular service rendered by the Veteran: McKenna 86 FCR at 151. Each of these links must be upheld by a Statement of Principles and, if need be, more than one Statement of Principles: McKenna 86 FCR at 151. 6 In this case the cause of death on the Veteran's death certificate was stated to be: "1. (a) ?Cerebrovascular accident with ?seizure (b) Hypertension (c) Epilepsy 2. Ischaemic heart disease, cerebral haemorrhage, transient ischaemic attack." 11 Ms Bowskill for the applicant submitted that the Act requires more than a factual linking between, in this case, hypertension and operational service. As made clear in McKenna [1999] FCA 323 ; 86 FCR 144, all "links" in the hypothesis must be supported by Statements of Principles. Accordingly, having regard to the links contained in the hypothesis advanced before the Tribunal in addition to the three Statements of Principle already mentioned, it was also necessary for the Tribunal to have regard to the Statements of Principles concerning anxiety disorder (Instrument No 1 of 2000) and panic disorder (Instrument No 9 of 1999). However, no reference was made by the Tribunal to the Statements of Principles concerning anxiety disorder and panic disorder. Accordingly, it follows from that submission that, contrary to the finding of the Tribunal, the second Deledio step was not satisfied. 14 In my view it is appropriate that the decision of the Tribunal be set aside and the matter be remitted to the Tribunal for a rehearing, not only for the reason conceded by Ms Skennar, but also on the basis that, to the extent that any hypothesis is identifiable in circumstances where the Tribunal has not specifically identified an hypothesis, the Tribunal has not properly identified and addressed Statements of Principles that uphold the whole of that hypothesis. If, for example, the hypertension of the Veteran was caused by anxiety or a panic disorder, that link in the hypothesis needs to be supported by the relevant Statements of Principles. The link between the war service and the hypertension is not substantiated nor supported by identified Statements of Principles in these proceedings as required by McKenna [1999] FCA 323 ; 86 FCR 144. In any event, I also note that any possible hypothesis referable to ingestion of salt by the Veteran could not, in circumstances where the point was unequivocally abandoned, have properly formed the basis for decision by the Tribunal. 15 In light of the usual rule that costs follow the event, the success of the Repatriation Commission, and the fact that the Repatriation Commission has sought an order that its costs be paid by the respondent, it follows that an appropriate order is that the Repatriation Commission's costs of the appeal be met by the respondent. However at the hearing, Ms Skennar for the respondent submitted that the Court should exercise its discretion pursuant to s 6 Federal Proceedings (Costs) Act 1981 (Cth) to grant a costs certificate. Section 6 provides, so far as relevant: "(1) Subject to this Act , where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal. ... (3) The certificate that may be granted under subsection (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under this Act to the respondent in respect of: (a) the costs incurred by the respondent in relation to the appeal; and (b) any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates." 16 It is not in contention that s 6 is enlivened in this case. The matter before me is a Federal appeal, and it has succeeded on a question of law. The issue however is whether the Court should exercise its discretion to grant the certificate.