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King v Repatriation Commission

[2011] FCA 1436

COURT Federal Court, Sydney
JUDGE Cowdroy J
DECISION The appeal was allowed
ISSUES Whether the tribunal failed to apply s196B(14) of the VEA

Facts

The applicant was diagnosed in August 2007 with prostate cancer and claimed that as a result of his career in the Air Force he developed a "liking for foods with a high fat content that lasted all is life and which led in turn to his prostate cancer".

On 14 September 2009 the Veterans' Review Board upheld the decision of the Commission, which found that the applicant's prostate cancer and erectile dysfunction were not war caused. The applicant appealed that decision to the Tribunal which upheld the decision on 15 April 2011.

The Applicant served in the Air force from January 1950 to February 1961 and performed service in Malaya and in the Far East Strategic Reserve. The Tribunal appeared to have accepted that the applicant’s service constituted 'operational service' as defined in the VEA.

The applicant then appealed to the Federal Court. The applicant's notice of appeal was filed on 12 May 2011. At the hearing leave was granted to the applicant to rely upon an amended notice of appeal. The amended notice of appeal raised three issues to be determined.

Grounds of appeal

  1. Whether the Tribunal erred in its application of the words "increasing animal fat consumption by at least 40%" contained in clause 5 (c) of the Sop.
  2. Whether the tribunal was required to apply, and if so, correctly applied s196B (14) of the VEA, when considering whether the applicant's prostate cancer was related to his operational service.
  3. Whether the Tribunal made impermissible findings of fact in the first three stages of the deledio process.

The Court’s Consideration

The Tribunal observed that the SoP provides that a reasonable hypothesis will be raised if a connection is established between the 40% increase in animal fat consumption and the relevant service.

The applicant's operational service was from October 1955 to August 1957 in Malaysia and from September 1957 to May 1958 in Singapore.

The increase in the applicant's animal fat consumption which occurred during the applicant's operational service was only 18%. Due to this finding the Tribunal's conclusion that the applicant's pre operational service was irrelevant for the purposes of the SoP, the Tribunal found that clause 5c was not satisfied. In reaching such finding, the court finds that the Tribunal conflated the requirements of clauses 4 and 5.

The correct application of the SoP proceeds in the following manner. Clause 5 sets out the factors that must "as a minimum exist before it can be said that a reasonable hypothesis has been raised" connecting that applicant's prostate cancer with his relevant service. The investigation must be directed to the question whether any or one or more of the several factors itemised in clause 5 of the SoP are satisfied or raised. Only when that inquiry has been determined in favour of a veteran, does the inquiry then shift to the threshold issue, namely whether any factor is related to service.

The factor for consideration does not specify that the 40% increase must be assessed only before and after the applicant's operational service.

The Tribunal did not address the two stages independently resulting in the possibility that it conflated the process.

The Tribunal was presented with evidence that applicant had increased his animal fat consumption by over 40% taking into account both operational and non operational service.

The Tribunal erred in failing to find that clause 5c was raised.

After addressing whether the factor was raised the Tribunal was then required to consider whether such factor was related to the applicant's operational service, as required by clause 4 of the SoP. The consideration of the clause 4 of the Sop is to be assessed by reference to the provisions of S196B(14) of the VEA.

The Tribunal was also required to consider whether S196B(14)(b) applied in the circumstances as well as S196B(14)(d).
It follows that the Tribunal erred both in its application of clause 5c of the Sop and by failing to consider adequately the provisions of s196B(14) of the VEA.

Decision

Proceedings to be remitted to the Tribunal to be determined according to law

Editorial Note

For further reading please see previous practice notes, Gilkinson v Repatriation Commission [2011] FCAFC 133. This Full Federal Court decision gives guidance on "contributed in a material degree".

All Practice Notes