Case: Repatriation Commission v Deledio (1998) 83 FCR 82
Outcome: applied
The course of reasoning which ss 120 and 120A of the Act require a decision-maker to take in relation to a claim lodged under the Act for a pension arising out of operational service rendered by a Veteran was authoritatively articulated by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The relevant principles are as follows: 1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a Statement of Principles determined by the Authority under s 196B(2) or (11). If no such Statement of Principles is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3. If a Statement of Principles is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the Statement of Principles. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved. 7 In this case the Tribunal found that: &#8226; on the balance of probabilities, a cerebrovascular accident was a main cause of the death of the Veteran (Tribunal decision at [16]); and &#8226; the whole of the material pointed to a hypothesis connecting the death of the Veteran with the circumstances of his service, and accordingly the first Deledio step was satisfied (Tribunal decision at [39]). 8 The Tribunal did not identify the relevant hypothesis. This was conceded by the respondent. However, as Ms Bowskill for the applicant submitted, the relevant hypothesis may be inferred as: &#8226; that the Veteran's death was caused by cerebrovascular accident &#8226; the cerebrovascular accident was caused by hypertension &#8226; the hypertension was caused by either an anxiety disorder or panic disorder suffered by the Veteran &#8226; the anxiety disorder or panic disorder was caused by the Veteran's operational service. 9 The Tribunal identified that three Statements of Principles were relevant in relation to this claim, namely: &#8226; Statement of Principles for Cerebrovascular Accident (Instrument No 57 of 2003 and Instrument No 51 of 2006) &#8226; Statement of Principles for Ischaemic Heart Disease (Instrument No 53 of 2003, as amended by Instrument No 9 of 2004) &#8226; Statement of Principles for Hypertension (Instrument No 35, as amended by Instrument No 3 of 2004). 10 I note that the Tribunal in its decision referred to these Statements of Principles as relevant to a hypothesis connecting the death of the Veteran to the circumstances of the case, and found that in this respect the second Deledio step was satisfied (Tribunal decision at [41]). 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. 22 Third, no new issue of law arose in this litigation, and indeed I have found that the reasons for setting aside the decision of the Tribunal were that not only was there a failure to articulate a hypothesis as required by the first Deledio step, but also that relevant Statements of Principles had not been identified to support each link in that hypothesis as required by the second Deledio step. 23 Finally, although I understand Ms Skennar's submission concerning the stage in the proceedings before me at which the Repatriation Commission had drawn her attention to concessions made by the respondent's Counsel below, in my view this is answered by Ms Bowskill's submission that the material with respect to the ingestion of salt, in particular the transcript of the hearing before the Tribunal, was material to which the respondent's legal representatives - in particular the solicitors - would already have had access. 24 As no circumstances exist which warrant the Court exercising its discretion pursuant to s 6 Federal Proceedings (Costs) Act 1981 (Cth), the appropriate order is that the respondent pay the applicant's costs of the appeal. THE COURT ORDERS THAT: 1. The decision of the Tribunal whereby the Tribunal set aside the decision of the Veterans' Review Board made on 22 November 2005 and decided "that the death of the late Mr Charles Sergeant is war-caused within the meaning of s 9 of the Veterans' Entitlements Act 1986 " be set aside. 2. The matter be remitted to the Tribunal to have the question whether the death of the late Mr Charles Sergeant is war-caused heard and decided again. 3. The respondent pay the applicant's costs of the appeal. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 10 September 2007 Counsel for the Applicant: H Bowskill Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: D Skennar Solicitor for the Respondent: Files Stibbe Date of Hearing: 5 September 2007 Date of Judgment: 10 September 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1408.html