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No.8 March 2008

Repatriation Commission v Newson

[2008] FCAFC 64

COURT Federal Court, Sydney
JUDGE Edmonds J
DATE OF DECISION 31 March 2008
DECISION Appeal dismissed with costs
ISSUES osteoarthrosis of the applicant’s right hip and both knees – commencement date of period by which clinical onset of osteoarthrosis must have occurred – requirement that the factors in SoP  ‘must be related to any relevant service rendered by the person’

Facts

Mr Newson rendered eligible service in the Royal Australian Air Force.  He made a claim for disability pension in respect of ‘bilateral knee osteoarthrosis and right hip osteoarthrosis’ . A delegate of the Repatriation Commission (Commission) rejected Mr Newson’s claim.  The decision was affirmed on review by the Veterans’ Review Board (VRB).  Mr Newson sought further review by the Administrative Appeals Tribunal (Tribunal).

The Tribunal’s reasoning 

The Tribunal set aside the Commission’s decision and substituted its decision that Mr Newson’s osteoarthrosis of the right hip and both knees was war caused. Central to the Tribunal’s decision were its findings that Mr Newson’s heavy lifting had ceased when he changed jobs in 1967 and that his kneeling and squatting had ceased on his retirement in 1989. The Commission appealed the decision of the Tribunal to the Federal Court.

Grounds of appeal

The Commission contended that the Tribunal had misapplied clause 5(j) and 5(k) of the Statement of Principles (SoP) No 82 of 2001 concerning osteoarthrosis, by failing to take into account the requirement in clause 4 of the SoP that the relevant factors set out in cl 5 of the SoP ‘must be related to any relevant service rendered by the person’.  Specifically, the Commission submitted that the Tribunal had made no attempt to explain how Mr Newson’s work as a carpenter/joiner during the two decades after his service were related to his eligible service.

Court’s consideration  

Justice Edmonds considered that there was a fundamental problem with the Tribunal’s reasoning process which infected the conclusion that Mr Newton met the factor 5(j) (right hip) and cl 5(k) (both knees) of the relevant SoP.  His Honour said:

[35]… As a matter of construction, the periods referred to in the factors in cll 5(j) (‘within any 10 year period’) and (k) (‘for at least two years’) must encompass at least part of a period of relevant service for the requirement of cl 4 of Instrument No 82 of 2001 to be met; otherwise there is no relationship between the injury/disease and the relevant service. Moreover, that part of the period of relevant service must contribute to the requirements of each factor, in the case of the factor in cl 5(j) to the total weight lifted over the period not greater than 10 years and, in the case of the factor in cl 5(k), to the kneeling or squatting time requirement in one of the two years.

[38] Where the Tribunal’s process of reasoning appears to have fallen into error is in its construction of the factors in cll 5(j) and (k) of Instrument No 82 of 2001 as to when the period of 25 years, within which clinical onset must occur, first starts. Under the current Statement of Principles in Instrument No 32 of 2005, it is clear that in the case of the factors in cll 5(i) and (l), the period of 25 years first starts immediately following the 10 year or lesser period and the two year period respectively. The Tribunal was of the view that the start date under the factors in cll 5(j) and (k) of the previous Statement of Principles in Instrument No 82 of 2001 did not occur until physical activity of the generic kind referred to in the factors, ‘heavy lifting’, in the case of cl 5(j), and ‘kneeling and squatting’, in the case of cl 5(k), actually ceases even if that cessation does not occur until years after the expiration of the 10 year or lesser period in the case of the factor in cl 5(j) and the expiration of the two-year period in the case of the factor in cl 5(k). Hence, the Tribunal’s finding, that Mr  Newson ’s ‘heavy lifting’ only ceased in 1967 led it to the conclusion that the 25 year period within which clinical onset must occur in the case of the right hip only then commenced; and the finding that Mr  Newson ’s ‘kneeling and squatting’ only ceased in 1989 led it to the conclusion that the 25 year period within which clinical onset must occur in the case of both knees only then commenced.

[39] In my opinion, this process of reasoning is predicated on an erroneous construction of the references to ‘such physical activity’ in both cll 5(j) and (k) of Instrument No 82 of 2001. It is not a reference to physical activity of that generic kind such as ‘heavy lifting or ‘kneeling and squatting’; the reference is to ‘such physical activity’ and, so understood, is a reference back to the physical activity meeting the anterior terms of the factors in cll 5(j) and (k). As indicated in [35] above, this in turn requires the relevant periods therein referred to -‘within any 10 year period’ and ‘for at least two years’ – to encompass at least part of a period of relevant service so as to provide a relationship to meet the requirements of cl 4 that the factor must be related to any relevant service rendered by the person. Such physical activity ceases, at the latest, at the end of the 10 year period in the case of the factor in cl 5(j) of Instrument No 82 of 2001 and, in the case of the factor in cl 5(k) of that instrument, at the end of the two year period; in other words, in the case of the factor in cl 5(j) in 1955 and in the case of the factor in cl 5(k) in 1947.

Formal decision

Justice Edmonds noted that for Mr Newson to meet the relevant factors in the SoP clinical onset of his osteoarthrosis of the right hip would need to have occurred by 1980; the Tribunal found that it had occurred in the mid 1980s. In relation to his osteoarthrosis of the knees, clinical onset would need to have occurred by 1972; the Tribunal found that it had occurred in 1999. As such, the Commission’s appeal was allowed with costs.

Editorial Note

The Newson case provides clarification on the construction of clauses 5(j) and (k) of SoP no 82 of 2001. The central issue for consideration in this case was when physical activity ceases and when the period of 25 years, in which clinical onset must have occurred, first starts to run.

The Court held that the Tribunal’s finding that the period of 25 years first starts when the relevant physical activity actually ceases (ie. change of job and retirement) was incorrect.  

The Court considered that the relevant physical activity ceases and the period of 25 years first starts to run immediately following the 10 year (or lesser period) and the two year period.  Importantly, the phrases “within any ten year period” and “for at least two years” cannot be considered in isolation. They must be read in conjunction with clause 4 of the SoP and, therefore, must encompass at least part of a period of relevant service.

Further reading: Please see ‘Clinical onset’ in VeRBosity Volume 22 No 1 at page 7

All Practice Notes