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Schulz v Repatriation Commission

[2014] FCA 387

COURT Federal Court, Brisbane
JUDGE Dowsett J
DATE OF DECISION 22 April 2014
DECISION TThe appeal was dismissed
ISSUES Where statement of principles did not support a reasonable hypothesis - whether Repatriation Commission required to exercise power under s180A of the VEA

Facts

Dr Schulz had operational service with the Royal New Zealand Army Medical Corps in Vietnam from 9 February 1971 until 26 August 1971. For the purposes of the VEA, Dr Schulz’s New Zealand service was treated in the same way as would similar service by an Australian veteran.

On 23 February 2011 Dr Schulz lodged a disability pension claim for ischaemic heart disease, hypertension and peritoneal adhesions. Dr Schultz’s claim was rejected by a delegate of the Repatriation Commission (the Commission) on the basis that none of his conditions could be related to his operational service, having regard to the relevant Statement of Principles (SoP). The Veterans’ Review Board (VRB) determined that Dr Schulz’s peritoneal adhesions were war-caused and remitted this aspect of the matter, but otherwise affirmed the Commission’s decision.

Dr Schultz sought further review by the Administrative Appeals Tribunal (the Tribunal).

Issues before the Tribunal

The Tribunal summarised Dr Schulz’s arguments as follows:

Specifically, Dr Schultz argues that taking account of the material which lead (sic) to an amendment to the Act in 1994, the Repatriation Commission (and the Veterans’ Review Board) was obliged to apply s 180A of the Act and to draft a legislative instrument making him eligible for a pension for the conditions of hypertension and IHD, which, on his submissions, resulted from exposure to Agent Orange in South Vietnam.

The Commission submitted that Dr Schultz’s case raised three questions:

The Tribunal concluded these three questions should be answered as follows:

The Court’s consideration

The Court considered the error in the Tribunal’s approach of answering the three questions was that it shifted the focus away from ss 19, 120 and 120A (pursuant to which the original decision was made) and focussed on s 180A (which was only relevant to the decision making process to the extent that Dr Schulz could establish such relevance).

The Court noted the Tribunal has jurisdiction to review decisions of the Commission and the VRB pursuant to s 175 of the Act, and the only relevant type of decision in this case seems to be those made in connection with claims for pensions and/or allowances pursuant to s135. Thus it seems a decision pursuant to s180A will only be reviewable by the Tribunal if it is the case, as submitted by Dr Schultz, that the Commission must, in considering an application for a pension (which otherwise lacks the support of any SoP), consider whether to exercise its power under s180A.

The Court turned to the procedure to be adopted in considering any application pursuant to s19 (determination of claims and applications):

…that section itself identifies the material to which the Commission must have regard. However ss 120 and 120A are primarily relevant for present purposes. Section 120(1) must be read in light of s 120(3), at least for present purposes. As was pointed out in Deledio the first step is to identify any hypothesis connecting the injury, disease or death with the circumstances of the veteran’s service. The second step is to consider the reasonableness or otherwise of the hypothesis, “reasonableness” having the meaning attributed to it by s 120A(3). An hypothesis will only be reasonable if there is in force, either a statement of principles or a determination of the Commission under s 180A(2) upholding the hypothesis. Clearly, s 120A(3) refers to an existing statement of principles and/or determination upholding the hypothesis. There is no suggestion that in the absence of any reasonable hypothesis, the Commission is to exercise its power pursuant to s 180A in order to remedy such absence.

The Court concluded it did not follow that where a veteran’s particular claim is not supported by an existing SoP or a determination pursuant to s180A, the Commission must therefore consider whether or not to exercise its powers under that section.

The Court’s Decision

The appeal was dismissed.

Editorial Note

In its decision the Court outlined the options under the VEA to a veteran who lacks the support of a SoP or a determination under s 180A. A person can apply to the Repatriation Medical Authority under s196E for a determination of a SoP or the variation of an existing SoP. If unsuccessful, the person may apply to the Specialist Medical Review Council under s196Y for review. After that process has been completed, the Commission may consider whether or not to exercise its powers pursuant to s180A. As stated by the Court, “s 180A vests power in the Commission but does not create personal rights vested in any veteran.”

All Practice Notes