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No.11 April 2008

Riley v Repatriation Commission

[2008] FCA 531

COURT Federal Court, Sydney
JUDGE  Edmonds J
DATE OF DECISION 21 April 2008
DECISION Appeal dismissed
ISSUES Decision refusing claim for chondromalacia patella of both knees - Material must raise reasonable hypothesis connecting veteran’s injury or disease with circumstances of service – Tribunal forming an opinion on material before it – no impermissible resolution of possible conflicts in the evidence or impermissible findings of fact

Facts

Mr Riley rendered operational service in Vietnam. He lodged a claim for disability pension for a number of conditions.   A delegate of the Repatriation Commission (Commission) accepted all of the conditions save for  Mr Riley’s chondromalacia patella of both knees.  The decision was affirmed on review by the Veterans’ Review Board (VRB).  Mr Riley sought further review by the Administrative Appeals Tribunal (Tribunal). The decision of the VRB was affirmed.

The Tribunal’s reasoning 

The issue for consideration before the Tribunal was whether Mr Riley satisfied factors 5(a), (b), (e) and/or (h) in the SoP concerning  chondromalacia patella.  The Tribunal noted the meaning of ‘clinical onset’ considered by the Full Court in Lees v Repatriation Commission [2002] FCAFC 398 and found that the clinical onset of Mr Riley’s chondromalacia patellae did not meet the requirements of factors 5(a), (b) and (e) of the SoP. In addition, the Tribunal found that as the clinical onset of Mr Riley’s chondromalacia patellae was not until some time after his operational service, and not before his discharge from the Army, he could not succeed under factor 5(h). The Tribunal affirmed the decision of the VRB.

Grounds of appeal

The applicant contended that the Tribunal had failed to approach the question of whether Mr Riley’s chondromalacia patella was war caused in the manner prescribed by sections 120(1) and (3) and 120A(3) of the VEA.  Specifically, the applicant contended that the Tribunal had erred by:

The Court’s consideration  

Treating clinical onset of chondromalacia patella as requiring the contemporaneous diagnosis of chondromalacia patella

Justice Edmonds did not consider that this ground of appeal had been made out.  His Honour said:

[41]…When the Tribunal’s reasons are read in context, the Tribunal was correct, having regard to all the material before it, to observe that prior to Dr Diebold’s diagnosis in 2003, there was no earlier diagnosis. However, it would be wrong, in my view, to conclude that this meant that the Tribunal required that the diagnosis of clinical onset, as explained in [33] above, be made at any specific time or close to the applicant’s military service.

Impermissible fact-finding at the reasonable hypothesis stage

Justice Edmonds did not consider that this ground of appeal was made out. His Honour agreed with the Commission’s submissions that the third step in Deledio required the Tribunal to ‘form an opinion’.  In his honour’s view,  the Tribunal was not 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 that the hypotheses were not reasonable by reference to factors 5(a), 5(b) and 5(e) of the SoP.

Further, his Honour considered that the Tribunal was not involved in resolving possible conflicts in the evidence. The Tribunal’s non acceptance of the evidence of one orthopaedic specialist was by way of reference to the accepted definition of clinical onset in Lee’s case. It was not by way of preferring the evidence of another practitioner.

Rejecting the alternative hypothesis

Justice Edmonds did not consider that this ground of appeal was made out.  His Honour considered that all the Tribunal said in its reasons was that, in the absence of a diagnosis of chondromalacia patella before operational service, the underlying premise upon which factor 5(h) operated did not exist.  Additionally, his Honour noted the Tribunal’s finding that Mr Riley did not fit factor 5(h) because he did have an ability to obtain appropriate clinical management for chondromalacia patella. Doctors were available; and on some occasions he was prepared to, and in fact did, seek medical assistance for other conditions.  

Further, his Honour could not identify any impermissible resolution of possible conflicts in the evidence or impermissible findings of fact in the Tribunal’s reasoning in relation to the alternative hypothesis outside the process of forming an opinion as to whether, on the material before it, there was an hypothesis which was reasonable.

Formal decision

Mr Riley’s appeal to the Federal Court was dismissed with costs.

Editorial Note

Section 120(3) of the VEA requires the formation of an opinion by the decision maker that the material before it does or does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service.  

In Bull v Repatriation Commission [2001] FCA 1832 Emmett and Allsop JJ (Moore J agreeing) observed that:

[21] There is no doubt that the Tribunal is obliged to look at all the material, not just some of it. It is not entitled at this point to find facts or reject matters. See generally Gleeson v Repatriation Commission (1994) 34 ALD 505, 509.

[22]  The formation of the opinion called for by subs 120(3) involves an assessment of the factual material before it. It involves reaching an opinion about a factual matter. It is, in that sense, a question of fact: Bey, supra at 373 and Repatriation Commission v Owens (1996) 70 ALJR 904…

In Riley the Federal Court held that the AAT had properly discharged its statutory duty under section 120(3) of the VEA.  It has not gone outside the process of forming an opinion as to whether, on the material before it, there was an hypothesis which was reasonable.  As such, there was no error of law.

All Practice Notes