Advisory from Disability Compensation Branch

No 7 of2001

Disability Compensation Branch and Legal Services Group have agreed this policy view.  At this stage it is not a Repatriation Commission Guideline or a Departmental Instruction.   The advice is not intended to conflict with the proper application of the Veterans' Entitlements Act 1986 or any future judgements of the Courts.  It may be subject to change as a result of further interpretation by the Courts of the legislation.  It represents the considered view of the law as expressed by the Full Federal Court.  Because it is a judgement of the Court every delegate is bound by the law it contains.

STANDARD OF PROOF IN DIAGNOSIS

The FFC decision in Budworth

This Advisory is to advise all staff involved in decision-making concerning diagnosis for the purpose of claims involving a reasonable hypothesis of how to use the Full Federal Court decision in Budworth.

Purpose

The Commission's appeal to the Full Federal Court of Australia in Repatriation Commission v Budworth [2001] FCA 1421 has been decided.  The Full Federal Court determined the key issue relating to the standard of proof on diagnosis.

Background

The Full Federal Court held that:

“When the Commission, or the AAT on review, is required to determine whether a veteran is suffering from the claimed injury or disease, that issue must be decided to the “reasonable satisfaction” of the decision maker in accordance with s 120(4) of the Act.”

It had previously been thought that the decision of the Full Federal Court in Repatriation Commission v Cooke (1998) 90 FCR 301, which decided that the standard of proof to be applied in determining whether a veteran suffers from a claimed disease is “reasonable satisfaction”, had resolved this issue.

However, in three recent decisions of the Court (Budworth v Repatriation Commission [2001] FCA 317; Meehan v Repatriation Commission [2001] FCA 597; and Benjamin v Repatriation Commission [2001] FCA 522) the conflict on this issue again arose.

Single Federal Court judgements in Budworth (per Justice Madgwick J) and Meehan (per Justice Wilcox) had taken the view that Cooke holds that whether or not a veteran suffers from a disease is to be decided on the “reasonable satisfaction” standard.  And further that the diagnosis of the particular disease is to be decided upon the reverse criminal standard.

In Benjamin, Justice Whitlam took the opposite approach and interprets Cooke as holding that the subsection 120(1) and (3) examination relates to the “present existence of the relevant disease” with other considerations, including diagnosis, to be determined under the reasonable satisfaction test prescribed by subsection 120(4).

The Commission has appealed to the Full Federal Court against the decisions of Budworth and Meehan, and an appeal has been lodged on behalf of the veteran in Benjamin.  The Full Federal Court heard the case of Budworth on 7 August 2001 and the decision was handed on 10 October 2001.

The key statement by the Full Federal Court is at paragraph 15 of the decision.  The Court stated that:

“Counsel for Mr Budworth argued that Cooke was incorrectly decided or clearly wrong and invited us not to follow it.  We decline to take that course because we find the reasoning in Cooke persuasive.  In our view,

s 120(1) of the Act assumes the existence of a relevant injury or disease and provides a standard of proof for the determination of whether that injury or disease was war-caused. When the Commission, or the AAT on review, is required to determine whether a veteran is suffering from the claimed injury or disease, that issue must be decided to the “reasonable satisfaction” of the decision maker in accordance with s 120(4) of the Act.”

The Full Federal Court cited with approval the statements Justice Weinberg in Repatriation Commission v Gosewinckel (1999) 59 ALD 690 which contained an analysis of why Cooke was correctly decided.  The Court also cites with approval a statement made by Justice Whitlam in Benjamin where his Honour questioned both the decision in Budworth and the decision of Justice Wilcox in Meehan.  At paragraph 20 of the decision, the Full Federal Court concludes that:

“We regard Cooke as decisive of the critical issue on this appeal, namely what standard of proof is to be applied when determining whether a claimed injury or disease exists.”

Action

The determination of all conditions in relation to diagnosis is to be made on the balance of probabilities.  The case of Budworth should be referred to in all AAT matters.  To prevent any aberrant VRB decisions all delegates should insert a sentence that says that the determination of the diagnosis was to a standard of reasonable satisfaction on the basis of the Full Federal Court decision in Budworth.

John R Douglas

Director

Policy, Eligibility and Research

12 October 2001