mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Collector of Customs v Pozzolanic Enterprises Pty Ltd; Collector of Customs v Pressure Tankers Pty Ltd [1993] FCA 456 ; (1993) 43 FCR 280
Outcome: followed
Collector of Customs v Pozzolanic Enterprises Pty Ltd; Collector of Customs v Pressure Tankers Pty Ltd [1993] FCA 456 ; (1993) 43 FCR 280 the Full Court considered such question. At 287 the Full Court distilled five propositions which emerged from previous authority relating to such question. Relevantly, the fourth proposition states: The effect or construction of a term whose meaning or interpretation is established is a question of law: Life Insurance Co of Australia v Phillips ... In the present proceedings the 'kind of death' to be determined involves the question whether such words should be given their ordinary meaning or some technical meaning. Accordingly, this question of construction raises a question of law. The Full Court in Pozzolanic stated the fifth proposition as follows (at 287): The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) at 379 (Sheppard and Burchett JJ). The Amended Notice of Appeal raises questions of statutory interpretation and of the application of the provisions of the IHD SoP, and whether the facts support the claim. As such, questions of law are pivotal to the appeal. Accordingly, the Court rejects the contention that the Tribunal's finding concerning the cause of death of the veteran was a finding only of fact. Misapplication of IHD SoP
Case: Comcare v Etheridge and Others [2006] FCAFC 27 ; (2006) 149 FCR 522
Outcome: referred to
Comcare v Etheridge and Others [2006] FCAFC 27 ; (2006) 149 FCR 522 , Branson J considered the determination of question of fact and question of law. Her Honour, adopting the reasoning of Gummow J in TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178-179, said at [13]: ...where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of law.
Case: Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331
Outcome: cited
Commission submits that the Tribunal was required, when characterising the 'kind of death' met by the veteran, to have regard to the characterisation of such death as provided by the IHD SoP. The veteran must have met a death with which that SoP is concerned in order to link such death with his war service: see Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 at [16] . The Commission submits that the Tribunal erred in its finding that the 'kind of death' sustained by the veteran was heart failure and kidney failure, and that such finding conflates the medical cause of death with the actual death of the veteran. The Commission referred to paragraph 8 of SoP No. 89 of 2007 which defines ' death from [IHD]' to include ' death from a terminal event or condition that was contributed to by the person's [IHD]'. As mentioned earlier, this was not the applicable SoP, however, the relevant wording is identical to the SoP that was in force. ' Terminal event ' is defined in the IHD SoP and includes cardiac arrest. The Commission contends that the Tribunal's finding did not consider the cause of heart failure or kidney failure. Instead the Tribunal wrongly made its finding on the 'kind of death' based upon the proximate cause or terminal event. The Commission also submits that given that the Tribunal found that IHD was not a 'kind of death', it follows that the Tribunal must, as a consequence of that decision, have not been satisfied, on the balance of probabilities, that IHD had contributed to the veteran's death. That is, the Tribunal's hypothesis connecting the veteran's death to his service was erroneous because it was premised on IHD contributing to the veteran's death. Further, by the finding that IHD was not a cause of death of the veteran, but that glomerulonephritis was such cause, the Commission submits that the Tribunal should have concluded that the GN SoP was applicable. However, the application of the GN SoP would not have assisted the respondent because the GN SoP did not include cigarette smoking as a cause of glomerulonephritis. The respondent submits that the determination of the 'kind of death' was a question of medical causation and as such comprised a factual finding which could not be the subject of an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 ('the AAT Act'); that the factual finding was open to the Tribunal since there was evidence that heart failure occurred; and that heart failure was a cause of the veteran's death.
Case: Repatriation Commission v Codd [2005] FCA 910
Outcome: cited
issue determined before this Court concerns the interpretation by the Tribunal of both statutory provisions and of SoPs. The Tribunal was not referred by the Commission to the GN SoP in respect of which numerous submissions have now been made by the Commission and which were not raised before the Tribunal. The arguments of the Commission involved a degree of complexity, and the errors of the Tribunal have arisen from a misapplication of the law. The position is not dissimilar to that in Repatriation Commission v Codd [2005] FCA 910.
Case: Repatriation Commission v Codd [2007] FCA 877 ; (2007) 95 ALD 619
Outcome: referred to
Repatriation Commission v Codd [2007] FCA 877 ; (2007) 95 ALD 619 Gordon J observed (at [20]) that the Deledio methodology is subject to three qualifications. Firstly, the methodology is not to be applied mechanistically; secondly, if no SoP is in force reference must be had to s 120A(4) of the VE Act which provides that s 120A(3) does not apply in certain circumstances; and thirdly there are two preliminary steps to the Deledio analysis as expounded by Selway J in Hancock . Such steps were identified at [11] as follows: (a) First, the AAT was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out... (b) Next, the AAT was required to determine on balance of probabilities what "kind of death" [the veteran] had suffered. This involved the identification, on balance of probabilities, of any and all [SoP] and/or determinations under s 180A(2) of the Act and any other "kinds of death" which were applicable to that death. (c) If one or more [SoP] were applicable, then the methodology in Deledio is applicable in relation to those "kinds of death"...
Case: Repatriation Commission v Cornelius (2002) 35 AAR 345
Outcome: distinguished
application for a costs certificate is opposed by the Commission. The Commission submits that such certificate should not issue and relies upon Repatriation Commission v Cornelius (2002) 35 AAR 345. In Cornelius , Branson J found that an application to the Court from a decision by the Tribunal constituted an ' appeal ' from a decision of the Tribunal. It followed that the proceeding constituted a ' Federal appeal ' within the meaning of the Costs Act. This Court, adopting such finding, determines that it has a discretion to award the relevant certificate. In Cornelius Branson J observed at [11] that costs certificates are ' intended to advance a more specific public interest '. Her Honour continued: That public interest would seem to be the alleviation of the costs burden that can fall on an individual who appropriately and successfully institutes a proceeding before the Administrative Appeals Tribunal or a federal court yet thereafter finds himself or herself a respondent to a successful "appeal" on a question of law or as to the amount of damage awarded at first instance. Branson J had evidence that the Legal Aid Review Committee had not been satisfied that the unsuccessful respondent in those proceedings had reasonable prospects of success in the application before the Tribunal. Accordingly, the respondent was made aware that her claim was weak. In the present proceedings, no such consideration arises. The Court has an unfettered discretion with regard to the award of a certificate, provided that the discretion is exercised judicially: see Bullock and Others v Federated Furnishing Trades Society of Australasia and Others (No. 2) (1985) 5 FCR 476 at 478. Whilst there is no presumption that an unsuccessful respondent is entitled to a certificate, in Repatriation Commission v Milenz [2007] FCA 50 , Finn J said at [4]: Given the beneficial purpose of the Veterans Entitlement legislation but accepting the appropriateness of the Repatriation Commission seeking to ensure that administrative decisions made under the Veterans Entitlements Act are made according to law, I consider it appropriate that the burden of making a respondent such as Mr Milenz bear the costs of the appeal in such circumstances undercuts the public interest served by the Federal Proceedings (Costs) Act : see Cornelius at [11]. I would emphasise that in granting a certificate I do take account of Mr Milenz' status as a war veteran though I do not consider it to be of decisive significance.
Case: Repatriation Commission v Gorton [2001] FCA 1194 ; (2001) 110 FCR 321
Outcome: referred to
instrument entitled ' Revocation and Determination of Statement of Principles concerning Ischaemic Heart Disease ' (No. 53 of 2003 as amended by No. 9 of 2004) ('the IHD SoP'), now replaced by No. 89 of 2007, was operative at the date of the Commission's decision. The replacement is not relevant, since the Commission was required to consider the IHD SoP in accordance with the SoP prevailing at the date of its decision: see Repatriation Commission v Gorton [2001] FCA 1194 ; (2001) 110 FCR 321. In all relevant respects, the 2004 and 2007 IHD SoPs are identical. Paragraph 8 of the IHD SoP provided that ' " death from ischaemic heart disease " in relation to a person includes death from a terminal event or condition that was contributed to by the person's ischaemic heart disease '. Paragraph 2(b) of the IHD SoP provided: For the purposes of this Statement of Principles, "ischaemic heart disease" means a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis or vasospasm of the coronary arteries. Paragraph 8 of the IHD SoP defined ' terminal event ' as follows: "terminal event" means the proximate or ultimate cause of death and includes: (a) pneumonia; (b) respiratory failure; (c) cardiac arrest; (d) circulatory failure; or (e) cessation of brain function. ' Condition ' is not defined. The IHD SoP had been made, and it was directly relevant to the respondent's claim which contended that the veteran's 'kind of death' (heart failure) was caused by IHD. Accordingly, the Tribunal was required to consider the IHD SoP in accordance with the SoP prevailing at the date of its decision: see Gorton . Applying the IHD SoP, the critical issue for the Tribunal's determination was the identification of the cause of the IHD, as itemised in the IHD SoP. Purported application of s 120(3)
Case: Repatriation Commission v Hancock [2003] FCA 711 ; (2003) 37 AAR 383
Outcome: referred to
also determined (at 97) that if no SoP were in force, the hypothesis will not be taken to be reasonable and in consequence the application must fail. Such observation has subsequently been disapproved: see Bull v Repatriation Commission (2001) 188 ALR 756 at [14]; Woodwood v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473 at [55] ; and Repatriation Commission v Hancock [2003] FCA 711 ; (2003) 37 AAR 383 at [10] . In Repatriation Commission v Codd [2007] FCA 877 ; (2007) 95 ALD 619 Gordon J observed (at [20]) that the Deledio methodology is subject to three qualifications. Firstly, the methodology is not to be applied mechanistically; secondly, if no SoP is in force reference must be had to s 120A(4) of the VE Act which provides that s 120A(3) does not apply in certain circumstances; and thirdly there are two preliminary steps to the Deledio analysis as expounded by Selway J in Hancock . Such steps were identified at [11] as follows: (a) First, the AAT was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out... (b) Next, the AAT was required to determine on balance of probabilities what "kind of death" [the veteran] had suffered. This involved the identification, on balance of probabilities, of any and all [SoP] and/or determinations under s 180A(2) of the Act and any other "kinds of death" which were applicable to that death. (c) If one or more [SoP] were applicable, then the methodology in Deledio is applicable in relation to those "kinds of death"... The application of the statutory provisions to the claim required the Tribunal to consider separate stages. The first step was to determine what the 'kind of death' was. As was observed by Selway J in Hancock at [9], such identification is a critical step in the analysis. Next, the Tribunal was required to determine whether s 120A applied, that is whether a SoP existed which addressed the question of the reasonableness of the hypothesis concerning the connection between the 'kind of death' and service of the veteran. If a relevant SoP existed, the Tribunal was, pursuant to s 120A of the VE Act, required to determine the claim in respect of the death in accordance with the template contained in the SoP. By satisfying the template, a reasonable hypothesis linking the veteran's service with the death would thereby be established. If no relevant SoP existed, s 120A(3) had no application by virtue of s 120A(4). In this event, the Tribunal was required to assess the claim having regard only to s 120(3) of the VE Act. In Codd Gordon J said at [31]: The phrase "kind of death met by the person" in s 120A(4) asks a causative question. It is not a question about whether the death was slow, fast or the like. It asks "questions of medical causation" about the cause of death and does so in a particular context the VE Act and, in particular, Pt VIII of the VE Act: see also explanatory memorandum to the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 (Cth) pp i-ii.
Case: Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581
Outcome: referred to
follows that where a SoP is in force concerning the 'kind of death', unless the decision maker is provided with material which points to a hypothesis which satisfies a template of the relevant SoP, the claim that the death is related to operational service cannot succeed. As was explained by the Full Court in Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581 at [57] : The result is that, where it applies, the SoP prescribes the essential content of what is a reasonable hypothesis, for s 120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of a veteran's particular service. In order to satisfy ss 120(3) and 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable. Accordingly, where no relevant SoP exists, an evaluation is to be made under s 120(3) to determine whether any hypothesis is reasonable, unaffected by s 120A(3): see s 120A(4).
Case: Repatriation Commission v McKenna (1998) 52 ALD 72
Outcome: referred to
Repatriation Commission v McKenna (1998) 52 ALD 72 at 80 Goldberg J described the operation of an SoP as follows: For the purposes of s 120A(3) of the Act the hypothesis which has to be upheld by a Statement of Principles is the hypothesis which connects the disease suffered by a veteran with the circumstances of his service. So stated, the hypothesis has to point to a connection which starts with the disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a Statement of Principles and, if need be, by more than one Statement of Principles. Section 120A(4) of the VE Act provides that s 120A(3): ...does not apply...if the Authority has neither determined a Statement of Principles under s196B(2), nor declared that it does not propose to make such a Statement of Principles in respect of... the kind of death met by the person... Accordingly, the first enquiry the Tribunal should have made is whether a SoP had been made in respect of the ' particular kind of...death ' suffered by the veteran.
Case: Repatriation Commission v Milenz [2007] FCA 50
Outcome: followed
Court has an unfettered discretion with regard to the award of a certificate, provided that the discretion is exercised judicially: see Bullock and Others v Federated Furnishing Trades Society of Australasia and Others (No. 2) (1985) 5 FCR 476 at 478. Whilst there is no presumption that an unsuccessful respondent is entitled to a certificate, in Repatriation Commission v Milenz [2007] FCA 50 , Finn J said at [4]: Given the beneficial purpose of the Veterans Entitlement legislation but accepting the appropriateness of the Repatriation Commission seeking to ensure that administrative decisions made under the Veterans Entitlements Act are made according to law, I consider it appropriate that the burden of making a respondent such as Mr Milenz bear the costs of the appeal in such circumstances undercuts the public interest served by the Federal Proceedings (Costs) Act : see Cornelius at [11]. I would emphasise that in granting a certificate I do take account of Mr Milenz' status as a war veteran though I do not consider it to be of decisive significance.
Case: Repatriation Commission v Smith (1987) 15 FCR 327
Outcome: referred to
assessing what the veteran's 'kind of death' was, the Tribunal was required, by s 120(4), to be satisfied on the civil standard of proof, that is, on the balance of probabilities. In Repatriation Commission v Smith (1987) 15 FCR 327 , Beaumont J said at 335: Even if the Tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation. Given that the Tribunal found that IHD was not a 'kind of death', it must be assumed that the Tribunal was not satisfied on the balance of probabilities that IHD was the 'kind of death' met by the veteran. However, failure to satisfy a balance of probabilities test does not lead to the conclusion that IHD cannot have had any contribution whatsoever to the veteran's death. That is, it does not follow that such conclusion has the consequence that IHD could not have contributed to the veteran's death, as the Commission has submitted. The Tribunal's finding only establishes that the contribution has not been sufficient to satisfy the high standard found in s 120(4) of the VE Act. In finding that the veteran's 'kind of death' was heart failure (erroneously, as has been discussed) the Tribunal found that the possibility of IHD contributing to the veteran's death was sufficient to find that it was a cause of the veteran's 'kind of death' and thus ground a reasonable hypothesis under ss 120(1) and 120(3) of the VE Act. While based on a misapplication of the VE Act regarding the 'kind of death', from the Tribunal's perspective it was logical (though again, erroneous) for it to consider the IHD SoP as providing a grounding for a reasonable hypothesis, namely that cigarette smoking caused the veteran's IHD which in turn was a cause of heart failure. The Tribunal has not 'subverted the standard of proof prescribed by s 120 of the VE Act '.
Case: TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175
Outcome: cited
Comcare v Etheridge and Others [2006] FCAFC 27 ; (2006) 149 FCR 522 , Branson J considered the determination of question of fact and question of law. Her Honour, adopting the reasoning of Gummow J in TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178-179, said at [13]: ...where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of law.
Case: Woodwood v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473
Outcome: cited
also determined (at 97) that if no SoP were in force, the hypothesis will not be taken to be reasonable and in consequence the application must fail. Such observation has subsequently been disapproved: see Bull v Repatriation Commission (2001) 188 ALR 756 at [14]; Woodwood v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473 at [55] ; and Repatriation Commission v Hancock [2003] FCA 711 ; (2003) 37 AAR 383 at [10] . Since the IHD SoP existed, it was not open to the Tribunal to attempt to find a reasonable hypothesis otherwise than in accordance with that SoP. As was held by the Full Court in Woodwood at [100]: Once an [sic] SoP is determined in relation to a particular condition, it covers the field in relation to that condition. Accordingly, the Tribunal erred by determining that a reasonable hypothesis existed, pursuant to ss 120(1) and 120(3) of the VE Act, linking the veteran's service to his death. Standard of proof The evidence provided to the Tribunal established, at its highest, that there was a possibility that IHD was a component in the veteran's death. Dr Butler rated such possibility as a ten or twenty per cent chance and Professor O'Rourke assessed such possibility as probably less than ten per cent. This possibility was found by the Tribunal to be sufficient to find that the hypothesis connecting service to the veteran's death was reasonable in assessing the claim under s 120(3) of the VE Act: In our view the material before us points relevantly to one cause of Dr Walker's death being IHD. [53]