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Gilkinson v Repatriation Commission

[2011] FCA 1507

COURT Federal Court, Sydney
JUDGE PERRAM, NICHOLAS AND ROBERTSON JJ
DECISION The appeal was allowed
ISSUES Meaning of “arose out of, or was attributable to”

Facts

Mr Gilkinson served in the Royal Australian Navy and saw operational service on ten voyages to and from South Vietnam as a member of the crew of HMAS Sydney between 1970 and 1972. He made a claim unsuccessfully for sleep apnoea. The decision was affirmed on review by the Veterans’ Review Board (VRB). Mr Gilkinson sought further review by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed the decision under review and Mr Gilkinson appealed the decision of the Tribunal to the Federal Court. Justice Rares allowed Mr Gilkinson’s appeal and remitted the matter to the Tribunal. Mr Gilkinson ’s claim was reviewed by the Tribunal and it was again rejected. Mr Gilkinson then sought a review by the Federal Court. Justice Stone did not accept that the Tribunal had made an error of law and consequently dismissed Mr Gilkinson’s application with costs. Mr Gilkinson then appealed to the Full Federal Court.

Grounds of appeal

The main issue arising out of this appeal concerned the meaning to be accorded to section 196B(14)(b) of the Veterans’ Entitlements Act 1986 (VEA), “arose out of, or was attributable to”. Mr Gilkinson argued that the Tribunal did not address s 196B(14)(b). Whereas, the Commission argued that there was no need for the Tribunal to consider this provision, as s 196B(14)(b) was covered by s 196B(14)(d).

As such, the issue for the Full Court to consider was whether subsection (b) “arose out of, or was attributable to” was narrower than subsection (d), “it was contributed to in a material degree by, or was aggravated by, that service”. If s 196B(14)(d) was wider than and more favourable to the Mr Gilkinson than s 196B(14)(b) then there would be no error of law.

The Court’s Consideration

In his separate decision, Justice Perram did not agree with the primary judge that subsection (b) was narrower than subsection (d). His Honour considered that the two provisions dealt with discrete topics. Further, Justice Perram considered that s 196B(14)(b) of the VEA did not require service to be the dominant or effective cause of the claimed disease or injury and, that the provision is satisfied where the service is merely their sine qua non.

In their joint decision Justice Nicholas and Justice Robertson did not consider subsection (d) to be a broader test that subsumes subsection (b). In particular, their Honours noted that the primary judge’s view of the two subsections was inconsistent with the decision in Roncevich, where the High Court saidthat the use in s 70(5) of the expressions “arose out of” and “was attributable to” manifested a legislative intention to give “defence-caused” a broad meaning.

Their Honours also noted the Court’s decision in Repatriation Commission v Law (1980) 31 ALR 140. and that in relation to the expression “is attributable to” their Honours said the cause need not be the sole or dominant cause and that it was sufficient to show “attributability” if the cause is one of a number of causes provided it is a contributory cause. In concluding, Justice Nicholas and Justice Robertson rejected the Commission’s submission that s 196B(14)(d) expands on paragraph (b) and that the Tribunal had no need to consider s 196B(14)(b).

The Court’s Decision

The court decided that Mr Gilkinson’s appeal should be allowed and the matter be remitted to the Tribunal.

Editorial Note

This decision follows the judicial guidance of the court in Repatriation Commission v Law (1980) 31 ALR 140. For the ‘arose out of, or attributable to‘ connections to apply, the relevant circumstance of service must have contributed to the cause but need not be the sole, dominant, direct or proximate cause of the injury, disease or death. For further reading on the earlier court decisions see the VRB archived practice notes at www.vrb.gov.au.

All Practice Notes