THE GENERAL MANAGER OF VETERANS’ AFFAIRS NEW ZEALAND v THE ESTATE OF LIEUTENANT COLONEL TĀ HARAWIRA GARDINER KNZM [2023] NZHC 1897

THE GENERAL MANAGER OF VETERANS' AFFAIRS NEW ZEALAND v THE ESTATE OFLIEUTENANT COLONEL TĀ HARAWIRA GARDINER KNZM [2023] NZHC 1897 [20 July 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-551[2023] NZHC 1897UNDER section 239 of the Veterans' Support Act2014BETWEEN THE GENERAL MANAGER OFVETERANS' AFFAIRS NEW ZEALANDAppellantAND THE ESTATE OF LIEUTENANTCOLONEL TĀ HARAWIRA GARDINERKNZMRespondentHearing: 27 March 2023Appearances: A B Goosen and T L Lamb for AppellantR L Roff and S W H Fletcher Counsel AssistingJudgment: 20 July 2023JUDGMENT OF McQUEEN JTable of ContentsPara NosBackground [6]Factual background [6]The relevant law [14]The Act's legislative history [14]Claims, reviews and appeals under the Act [17]Approach to deciding claims under the Act [21]Statements of principles under the Act [27]The Kenyon decision [32]The Appeal Board decision under appeal [36]Ms Anderson's reasons [39]Mr Griggs' reasons [45]Dr Holdaway's reasons [52]The Appeal Board's decision [53]Approach to appeal [54]Grounds of appeal [57]The effect of s 10(b) on the process envisaged by s 14 [60]Submissions for the GMVA [60]Submissions from counsel assisting [63]Analysis [68]The Board's jurisdiction in relation to the Regulations [82]Submissions [82]Analysis [85]The alleged duty of both the Governor-General and Minister to give effectto s 10(b) [89]Submissions [89]Analysis [92]The impact of the Kenyon decision and the principle of equal treatment [94]Submissions for the GMVA [94]Submissions from counsel assisting [98]Analysis [102]Conclusion [109]Relief [113]Result [114]Costs [115][1] This is an appeal on a question of law pursuant to s 239 of the Veterans' SupportAct 2014 (the Act), against a decision of the Veterans' Entitlements Appeal Board (theAppeal Board).[2] The General Manager of Veterans' Affairs New Zealand (the GMVA) appealson the ground that the majority of the Appeal Board erred in law in concluding thatthe late Lieutenant Colonel Tā Harawira Gardiner's claim for glioblastoma must betreated as a service-related condition under the Act.[3] I acknowledge the passing of Tā Harawira, a rangatira who gave a lifetime ofservice to Aotearoa New Zealand.1[4] This is an appeal that is effectively unopposed. Major Ross Himona, a long-time friend and colleague of Tā Harawira, and the Hon Hekia Parata, Tā Harawira'swidow, as representative and executor respectively of Tā Harawira's estate, advisedthe Court that the estate did not wish to defend a decision made on the basis of anargument the estate did not raise, in a claim that was intended to be representative ofall veterans. Accordingly, Ms Roff has been appointed as counsel assisting, to act ascontradictor to the arguments of the GMVA.2 Ms Roff has provided submissionswhich contradict the GMVA's' position on the law, but only to the extent appropriateto assist the Court. I thank Ms Roff for her assistance in this matter.[5] For the reasons below, I consider that the appeal should be allowed, althoughnot on the grounds advanced by the GMVA. In light of my findings, I direct the AppealBoard to consider again Tā Harawira's application for a disablement pension.BackgroundFactual background[6] The late Lieutenant Colonel Tā Harawira Gardiner served in the New ZealandArmy between 11 January 1963 and 12 July 1983. Tā Harawira had "qualifyingroutine service" from 11 January 1963 to 3 June 1969 and from 9 May 1970 to31 March 1974 and "qualifying operational service" in Vietnam from 4 June 1969 to8 May 1970.3[7] Tā Harawira was diagnosed with glioblastoma on 28 July 2021. That is acondition that has been previously experienced by veterans who served in Vietnam,and were exposed to Agent Orange, a chemical herbicide used during the VietnamWar. On 3 September 2021, Tā Harawira applied for a disablement pension pursuant1 See Eulogy for Sir Harawira Tiri Gardiner – Tā Wira – (Te Kawa Mataaho | Public ServiceCommission dated 16 November 2022) < Eulogy for Sir Harawira Tiri Gardiner – Tā Wira - TeKawa Mataaho Public Service Commission>.2 Minute of Palmer J dated 10 October 2022.3 The terms "qualifying routine service" and "qualifying operational service" are defined in s 8 ofthe Act.to s 47(1) of the Act, which provides that a veteran who suffers disablement as aconsequence of a service-related injury or illness is entitled to a disablement pension.[8] On 20 September 2021, Veterans' Affairs New Zealand (VANZ), through itsDecision Officer, declined to accept the claim for glioblastoma as a service-relatedcondition. On 5 January 2022, Tā Harawira sought a review of that decision.[9] On 4 February 2022, the Review Officer upheld the Decision Officer'sdecision and declined to accept glioblastoma as a service-related condition on thegrounds that:(a) Tā Harawira was not diagnosed during his operational service;(b) glioblastoma is not a presumptive condition for Vietnam; and(c) no factor in the relevant Statement of Principles "Malignant Neoplasmof the Brain (Reasonable Hypothesis) No. 85 of 2016" (SOP 85/2016)was met.[10] The estate of Tā Harawira filed an appeal against that decision dated23 February 2023.[11] On 11 April 2022, the Appeal Board conducted a preliminary hearing todetermine:(a) whether or not the review was properly conducted;(b) whether or not the review was in breach of s 220(2) of the Act; and(c) whether or not the Review Officer's decision should be revoked.[12] On 27 April 2022, the Appeal Board:(a) found that the Review Officer breached s 220(2) of the Act because hehad previous involvement with the claim before being appointedReview Officer, and therefore lacked jurisdiction to conduct the review;(b) found the effect of the breach was the Review Officer's decision was anullity;(c) revoked the decision under s 237(1)(c) of the Act; and(d) directed that the appeal be set down for a substantive hearing before theAppeal Board.[13] That hearing took place on 17 June 2022, with the Appeal Board's decisionissued on 14 July 2022. It is this decision that the GMVA appeals against.The relevant lawThe Act's legislative history[14] The Act was enacted in 2014. It replaced the War Pensions Act 1954. The Act'spurpose is to provide for:4(a) the rehabilitation of and support for veterans who, as a result of beingplaced in harm's way in the service of New Zealand, have been injuredor become ill; and(b) entitlements for eligible veterans who suffer service-related injuries orillnesses; and4 Veterans' Support Act 2014, s 3(1). Section 3(2) goes on to specify that the purpose of pt 2 of theAct is to promote positive veteran and claimant interaction with Veterans' Affairs New Zealandthrough the development and operation of a Code of Veterans' and Other Claimants' Rights.(c) entitlements and support for eligible spouses, partners, children, anddependants of veterans with service-related injuries or illnesses and forother persons who provide non-professional support to those veterans.[15] The main impetus for the Act's passage was the need to replace the WarPensions Act, which was designed for the needs of veterans of the Second World War.5The War Pensions Act did not reflect modern understandings of psychological andenvironmental trauma. Nor had it been amended to reflect the introduction of theaccident compensation scheme in 1974. The Act was intended to give effect to therecommendations of Te Aka Matua o te Ture o Aotearoa ǀ Law Commission (the LawCommission) in its report A New Support Scheme for Veterans: A Report on the Reviewof the War Pensions Act 1954.6[16] The principles and decision-making presumptions of the War Pensions Actwere not to be different in the Act.7 This was emphasised by the responsible Ministerwhen the Veterans' Support Bill was introduced.8 This thread was also present in theLaw Commission's report. That report provided that the legislation replacing the WarPensions Act should be guided by the following principles:9Community responsibility – Veterans put themselves in harm's way duringservice on behalf of the nation. The community therefore has a reciprocalresponsibility to look after veterans and their families if they are injured orkilled. This is an enduring obligation.Fair entitlements – A fair entitlement scheme should provide for greaterentitlements than are available to other New Zealanders, and include:• Compensatory payments for the effects on a veteran's quality of life caused byinjury or disease attributable to service;• Income support or replacement where a veteran's injury or diseaseaffects his or her ability to earn money by working;• Rehabilitation services, including medical support and services andsupport based on a veteran's needs; and5 Veterans' Support Bill 2013 (158–1) (explanatory note) at 1.6 Te Aka Matua o te Ture o Aotearoa | Law Commission A New Support Scheme for Veterans: AReport on the Review of the War Pensions Act 1954 (NZLC R115, 2010).7 Veterans' Support Bill 2013 (158–1) (explanatory note) at 2.8 (22 October 2013) 694 NZPD 14102.9 See Law Commission, above n 6, at [1.3].• Compensation and income support payments to eligible familymembers upon the death or serious impairment of a veteran.Equality – There should be equal treatment of equal claims. Decision-makingcriteria should be clear.Benevolent approach to claims – In considering veterans' claims forentitlements, beneficial evidential provisions should be applied to veterans.Administrative efficiency – The scheme should be as simple as possible andshould aim to minimise delays. It should not replicate existing structures.Affordability – The scheme should be affordable in terms of the community'sexpectations and priorities. This concept should encompass sustainability andresource efficiency.Claims, reviews and appeals under the Act[17] Section 47 of the Act provides that a veteran who suffers a disablement as aconsequence of a service-related injury or illness is entitled to a disablement pension.This is one of the entitlements available under the Act. Section 7 of the Act providesa definition of "veteran". There is no dispute in this case that Tā Harawira was aveteran as defined. Section 48 of the Act provides for veterans to apply to VANZ fora disablement pension. 'Service-related' is defined in s 7 as "in relation to an injury,an illness, a condition, or a whole-person impairment, means an injury, an illness, ora whole-person impairment caused by, contributed to by, or aggravated by qualifyingservice".10[18] The entitlements for which a veteran may be eligible depends on their service."Qualifying operational service" means service on any deployment treated as a war oremergency for the purposes of the War Pensions Act, or service on any deploymentdeclared to be operational service under s 9 of the Act.11 "Qualifying routine service"means service in the armed forces before 1 April 1974 that is not qualifyingoperational service.12 "Qualifying service" means qualifying operational service orqualifying routine service.1310 See Veterans' Support Act 2014, s 7, which also defines "service-related death".11 Section 8(2).12 Section 8(2).13 Section 8(2).[19] Operational service relates to a deployment which the Minister is satisfiedposes a significant risk of harm to the members deployed, and is declared as such bythe Minister.14 The Chief of Defence Force advises the Minister for the purpose ofmaking such decisions.15[20] Section 215 of the Act permits a veteran or other claimant to apply for a reviewof a decision by VANZ. A review officer may conduct such a review.16 A review officermust decide the review on the basis of the substantive merits under the Act.17Section 220(2) prohibits a review officer from conducting a review if they have hadany previous involvement with the claim. Section 228 permits a review decision to beappealed to the Appeal Board. Such an appeal is "a de novo appeal".18 Section 229(5)requires the Appeal Board to comply with the principles of natural justice, theprinciples specified in s 10(b), any other relevant provisions of the Act, and anyregulations made under s 265 of the Act. A determination of the Appeal Board may beappealed to the High Court only on a question of law, pursuant to s 239.Approach to deciding claims under the Act[21] Section 10 of the Act provides principles for how functions are to be performedand how powers are to be exercised under the Act. It is a provision that accords withthe principles preferred by the Law Commission, as noted above, by providing:19Every person who performs any function or exercises any power under thisAct must do so––(a) in acknowledgement, on behalf of the community, of theresponsibility for the injury, illness, or death of veterans as a result ofthem being placed in harm's way in the service of New Zealand; and(b) in accordance with the following principles:(i) the principle of providing fair entitlements to veterans andother claimants:(ii) the principle of promoting equal treatment of equal claims:14 Section 9(3).15 Section 9(1).16 Veterans' Support Act 2014, s 219.17 Section 220(3)(a).18 Section 229(1).19 Section 10.(iii) the principle of taking a benevolent approach to claims:(iv) the principle of determining claims––A. in accordance with substantial justice and the merits ofthe claim; andB. not in accordance with any technicalities, legal forms, orlegal rules of evidence.[22] Section 12 provides that VANZ must perform its functions and exercise itspowers on reasonable grounds and in a timely manner, having regard to therequirements of the Act, the nature of the function or power and all the circumstances.[23] Sections 14 and 15 set out a sequential process for how claims to entitlementsare to be decided under the Act. This may be summarised as follows:(a) The first step is to consider all of the relevant available material anddecide whether the material is consistent with a hypothesis that theveteran's injury, illness, or death was service-related.20(b) If the relevant available material is consistent with such a hypothesis,the second step is to decide whether there is a 'statement of principles'21that applies.22 If there is no applicable statement of principles, then s 15applies.23(c) If there is a statement of principles that applies, the third step is todecide whether the hypothesis is consistent with the statement ofprinciples.24(d) If the hypothesis is consistent with the statement of principles, thefourth step is to accept the claim, unless there are reasonable grounds20 Veterans' Support Act 2014, s 14(2).21 Section 14(7). In ss 14 and 15, a 'statement of principles' means a statement of principles that,under ss 22(6) and regulations made under s 265, applies for the purposes of the Act.22 Section 14(3).23 Section 14(4).24 Section 14(5).for believing that the veteran's injury, illness, or death was not service-related.25(e) In circumstances where there is no applicable statement of principles,the person deciding whether to accept the claim must decide whetherthe claim is consistent with a hypothesis that is reasonable.26 Ahypothesis is reasonable if it is more than a possibility, consistent withknown facts, and not inconsistent with proved or known scientificfacts.27(f) If the claim is consistent with a hypothesis that is reasonable, then theclaim must be accepted, unless there are reasonable grounds forbelieving that the veteran's injury, illness, or death was not service-related.28[24] Section 16 provides that the process set out in ss 14 and 15 applies to the extentthat it is not modified or overtaken by the presumptions contained in ss 17 to 21, orthe provisions of s 28. For present purposes, only s 21 is relevant. Section 21 providesthat regulations made on the recommendation of the Minister under s 265 may specifyinjuries, illnesses, and conditions that must be treated as service-related if a veteranhas been exposed to specific events, served in a specific place, or served over aparticular time period, during qualifying operational service.[25] Relevant to the present case, therefore, is reg 13 of the Veterans' SupportRegulations 2014 (the Regulations), which applies to a veteran who served inVietnam:29(a) at any time during the period beginning on 29 May 1964 and ending onthe close of 31 December 1972; or25 Section 14(6).26 Section 15(2).27 Section 15(4).28 Veterans' Support Act 2014, s 15(3).29 Veterans' Support Regulations 2014, reg 13(1).(b) with 41 Squadron RNZAF at any time during the period beginning on1 January 1973 and ending on the close of 21 April 1975; or(c) as a member of the civilian surgical team at Qui Nhon Provincial StateHospital, Binh Dinh province at any time during the period beginningon 1 December 1963 and ending on the close of 31 March 1975.[26] Tā Harawira was a veteran to whom reg 13 applied, as he had qualifyingoperational service in Vietnam from 4 June 1969 to 8 May 1970. Regulation 13(2)provides that if a veteran to whom reg 13 applies suffers from an illness or conditiondescribed in reg 13(3), the illness or condition must be treated as service-related.However, glioblastoma does not appear in the list of illnesses and conditions containedin reg 13(3).Statements of principles under the Act[27] Statements of Principle (SOPs) are an important part of decision-making underthe Act. SOPs are used in the assessment of whether a claimed condition can beattributed to a person's qualifying service. The Act expressly draws on SOPs alreadymade by the Australian Repatriation Medical Authority, under the Veterans'Entitlements Act 1986 (Cth).[28] The application of these SOPs in New Zealand is determined by the Ministerthrough the making of regulations pursuant to s 265.30 The scheme relating to SOPsenvisages the Minister adopting the approach taken by the Australian RepatriationMedical Authority in most circumstances, emphasised by the direction that "as soonas practicable", a new or revoked SOP should be reviewed and a report provided tothe Minister so they may decide whether to apply or revoke a SOP.31[29] The Regulations also provide for the applicable statement of principles.Regulation 15 states that the SOPs contained in sch 1 of the Regulations apply for thepurposes of the Act. Regulation 15(2) requires that the version of the SOP referred toin sch 1 in the column headed "Reasonable hypothesis" is to be applied if a veteran's30 Veterans' Support Act 2014, s 22(6).31 Sections 22 and 23.service-related injury, illness, condition, whole-person impairment, or death relates to"qualifying operational service".[30] The relevant SOP in the present case is SOP 85/2016. Clause 9 of SOP 85/2016states:9 Factors that must existAt least one of the following factors must as a minimum exist before itcan be said that a reasonable hypothesis has been raised connectingmalignant neoplasm of the brain or death from malignant neoplasm ofthe brain with the circumstances of a person's relevant service:(1) having received a cumulative equivalent dose of at least 0.1sievert of ionising radiation to the brain at least two years beforethe clinical onset of malignant neoplasm of the brain;(2) being infected with human immunodeficiency virus before theclinical onset of malignant neoplasm of the brain;(3) inability to obtain appropriate clinical management for malignantneoplasm of the brain.[31] It is common ground that Tā Harawira's medical condition, glioblastoma, is aform of malignant neoplasm of the brain, but that none of the factors specified in cl 9applied to Tā Harawira.The Kenyon decision[32] Of some importance in the present case is the effect of a decision of the WarPensions Appeal Board (the WPAB), the Appeal Board's equivalent under the WarPensions Act.32 It is convenient to discuss it at this point.[33] This decision concerned William Kenyon, who appealed against a decision ofthe National Review Officer dated 9 September 2013 on the ground that his disabilitiesof glioblastoma and pulmonary embolism were attributable to or aggravated by hisservice. Mr Kenyon was a veteran who, like Tā Harawira, had served in Vietnam andhad experienced exposure to Agent Orange. Mr Kenyon's claim was initially deniedfor want of evidence that his illnesses were attributable to his service.32 Kenyon War Appeal 7, 19 December 2013.[34] Section 17(3) of the War Pensions Act entitled an applicant to produce anyevidence (whether strictly legal or not) to show that the condition that resulted in theirdisablement was possibly or probably attributable to or aggravated by their servicewith the forces in connection with any war or emergency. Section 17(3) furtherprovided that if any reasonable evidence to that effect is produced by that applicant, apresumption that that condition was in fact attributable to or aggravated by theirservice was established. Thereafter, that presumption could be rebutted only byevidence that satisfied the WPAB that the condition was not so attributable oraggravated but was due entirely to other causes. This is a similar analysis to theprocedure established by s 15 of the Act.[35] The issue before the WPAB was whether there was reasonable evidence toshow that Mr Kenyon's conditions were possibly or probably attributable to hisservice. The WPAB concluded that there was such reasonable evidence, and thereforeallowed Mr Kenyon's appeal, notwithstanding that the presumptive lists for service inVietnam (the equivalent of reg 13) did not include glioblastoma or pulmonaryembolism. The evidence relied upon by the WPAB included that:(a) Mr Kenyon had never smoked, and there was no family history of hiscondition;(b) he had been exposed to Agent Orange during his service in Vietnam,and to the best of his knowledge had never been exposed to any otherradiation or toxins, other than for his treatment;(c) his service was in connection with a war or emergency; and(d) medical evidence provided that Mr Kenyon's condition was the sameas that suffered by American veterans who had served in Vietnam, asreferred to in two United States cases cited to the WPAB.The Appeal Board decision under appeal[36] The Appeal Board for the hearing of Tā Harawira's appeal comprised threemembers.33 Ms Anderson was the chairperson, while Mr Griggs and Dr Holdawaywere the other two members. The Appeal Board reached its decision by majority, withMs Anderson dissenting. All three members approached the appeal differently. Isummarise their reasoning below.[37] The submissions presented in support of the appeal raised several arguments.The first was that Tā Harawira's claim was lodged through s 35 of the Legislation Act2019 rather than under the Act. Reliance was also placed on the Kenyon decision, theUnited States and Australian contexts, the application of the reasonable hypothesisapproach, and the principle of benevolence.[38] VANZ opposed the appeal on all grounds.Ms Anderson's reasons[39] Ms Anderson considered that Tā Harawira's claim had been made under theAct and that the claim was to be determined under the Act, stating:While section 35 of the Legislation Act provides that powers exercised underrepealed or amended legislation have continuing effect, that provision doesnot allow for new claims to bypass the VSA [the Act] statutory scheme fordetermining claims. The effect of section 35 of the Legislation Act is topreserve any decision made under the WPA [War Pensions Act] as if thatdecision had been made under the VSA, provided that it could have been madeunder the VSA.[40] Ms Anderson did not accept the argument that Tā Harawira's claim wasrequired to receive equal treatment to claims made under the War Pensions Act inaccordance with s 10(b)(ii) of the Act. She accepted that s 10(b)(ii) of the Act providesfor equal treatment of equal claims but considered that section must be read in amanner which is consistent with s 14, to mean equal treatment of equal claims made33 The Appeal Board is established pursuant to s 240 of the Act. Section 241 provides for themembership of the Appeal Board. Section 230(1) requires that every appeal must be heard by notfewer than three members, one of whom must be a medical practitioner and one the chairperson.Section 230(2) requires every appeal to be determined by a majority of the votes of the membershearing the appeal, and the chairperson has a casting vote if voting is equal.under the Act rather than equal treatment with claims made and determined under theWar Pensions Act. Ms Anderson went on to say:Section 10 of the VSA does not allow the Appeal Board to judicially reviewthe Minister's decision not to include glioblastoma in the list of conclusivelypresumed conditions for service in Vietnam between 1964 and 1972 as set outin regulation 13(3) of the Veterans' Support Regulations 2014 (VSR). Neithercan the Appeal Board rely on section 10 to find that a Minister was bound toadopt and carry forward decisions such as Keynon made under the WPA (priorlegislation) when they drafted the presumptive list, as that would not beconsistent with the prescribed process for deciding claims provided for in theVSA.In this appeal there is no doubt about the interpretation of section 14 andthe proper application of the law to the facts. While the Appeal Boardacknowledges the Appellant's service, it is not open to us to step around s 14and simply decide the appeal in accordance with a broader assessment of thesubstantial justice and merits of the claim than is provided for in theRegulations.[41] Ms Anderson therefore considered that she could not refuse to apply the Actand the regulations made under it. She considered that neither could she determinewhat ought to have been specified in the regulations prescribing the presumptive listof illnesses and conditions for Vietnam veterans.[42] Ms Anderson accepted that there is a reasonable hypothesis that Tā Harawira'sglioblastoma was service-related, and that SOP 85/2016 applied. Ms Andersonreferred to a US National Academies of Sciences, Engineering and Medicine'ssystemic review of scientific literature concerning glioblastoma in Vietnam, recordingthat it shows there is an absence of evidence connecting glioblastoma and exposure toherbicides in Vietnam. She went on to say:On the other hand, I accept that the condition of glioblastoma is such a rarecancer tumour that no one can say definitively that it is not related to AgentOrange exposure. I also understand there is literature suggesting that theremay be an association between exposure to Agent Orange and other agentsused in the Vietnam War and the carcinogenic changes this has long term onDNZ and cellular metabolism. I also accept that Courts in the United Stateshave accepted veterans' claims for glioblastoma where the evidence isequivocal.[43] Ms Anderson then concluded that the hypothesis was not consistent with SOP85/2016 because there was no evidence that Tā Harawira met any of the three factorslisted in cl 9. She also considered that s 15 of the Act was inapplicable as there is arelevant SOP.[44] Ms Anderson concluded that it was not open to her to find that Tā Harawira'sglioblastoma was service-related.Mr Griggs' reasons[45] Mr Griggs agreed with Ms Anderson that the claims should be consideredunder the Act, and that s 35 of the Legislation Act did not have the effect contendedfor on behalf of Tā Harawira. However, he saw the core issue in the appeal as "whatthe Appeal Board should do if there is a conflict between one or more of the principlesspecified in section 10(b) and a regulation made under s 265".34[46] Mr Griggs observed that s 10 is unique and deserves careful reading. Heaccepted that the operative provisions of the Act must be interpreted consistently withthe principles specified in s 10(b), and said that if a provision of the Act cannotreasonably be given a meaning consistent with those principles, it must be given effecton its terms. However, he considered that the same considerations do not apply whereregulations rather than the operative provisions of the Act are concerned. Mr Griggswas of the view that s 10 applies to any person who performs any function or exercisesany power under the Act, including the making of Orders-in-Council by the Governor-General on the advice of the Minister, and imposes mandatory duties.[47] Mr Griggs therefore concluded that:When the Governor-General made the VSR [the Regulations] on 1 December2014, His Excellency had a duty under s 10(b)(ii) of the VSA [the Act] to giveeffect to the principle of promoting equal treatment of equal claims. Equally,when the Minister provided his recommendation for the purposes of section21, he had a duty to give effect to that principle.[48] And:when the Minister provided his recommendation in 2014 as to whichconditions ought to be specified in the presumptive list for Vietnam veteransin regulation 13(3) of the VSR [the Regulations], the Kenyon case was an34 Mr Griggs noted that this was not directly addressed by the parties."equal claim". It established a precedent that glioblastoma in Vietnamveterans might be related to their service, due to their exposure to AgentOrange. In my view it was the Minister's duty to make his recommendationin accordance with the principle of promoting equal treatment of equal claims,namely by including glioblastoma in the presumptive list. When the Governor-General made the Order-in-Council, His Excellency similarly had a duty toensure that the presumptive list promoted equal treatment of equal claims, byincluding glioblastoma.[49] Mr Griggs considered that it could not have been Parliament's intent that equalclaims should be confined to claims made under the Act, and if that had been intended,Parliament would have made that clear. He said that:As a matter of ordinary usage, it seems to me that a previous claim by a NewZealand veteran of the same operational theatre in respect of the samecondition is, absent any other distinguishing characteristics, an "equal claim",whether or not it has been considered under the VSA [Act].[50] He did not "entirely agree" with Ms Anderson's view that the Appeal Boarddoes not have jurisdiction to review the Regulations and must apply them on theirterms. He considered that the Appeal Board may consider collateral challenges to theRegulations if it is alleged they are invalid.35 Mr Griggs did not however consider itnecessary to take this approach in the present case.[51] Rather, Mr Griggs considered that s 10(b)(iv), read together with s 229(5) ofthe Act, obliged the Appeal Board to determine the claim in accordance with thesubstantial justice and merits of the claim, given his view that the Governor-Generalhad a duty to include glioblastoma in the relevant presumptive list. He said that whiles 229(5) requires the Appeal Board to comply with the Regulations, it does not requirethe Appeal Board to give effect to an omission from the Regulations whichcontravenes s 10(b) or any other provision of the Act. On that basis, Mr Griggs was ofthe view that Tā Harawira's claim for glioblastoma must be treated as a service-relatedcondition under the Act.Dr Holdaway's reasons[52] The remaining member of the Appeal Board, Dr Holdaway agreed that theclaim should be determined under the Act. He considered that the Appeal Board does35 Mr Griggs relied on Attorney-General v P F Sugre Ltd [2004] 1 NZLR 207 (CA) [48]; and Conleyv Hamilton City Council [2008] 1 NZLR 789 (CA) at [45].not have the authority to change or add conditions to the presumptive list. However,he agreed with Mr Griggs that exercising benevolence required that Tā Harawira'sclaim for glioblastoma should be treated as a service-related condition under the Act.Dr Holdaway did not set out reasons for these conclusions.The Appeal Board's decision[53] Therefore, in accordance with the votes of the majority (being Mr Griggs andDr Holdaway), the Appeal Board decided that Tā Harawira's claim for glioblastomashould be treated as a service-related condition under the Act.Approach to appeal[54] An appeal to the High Court against a determination of the Appeal Board mayonly be on a question of law, and is to be made in accordance with the High CourtRules 2016.36 Rule 20.18 of the High Court Rules provides that an appeal is by wayof rehearing.[55] On the hearing of an appeal, the court may:37(a) make any decision it thinks should have been made:(b) direct the decision-maker—(i) to rehear the proceedings concerned; or(ii) to consider or determine (whether for the first time or again) anymatters the court directs; or(iii) to enter judgment for any party to the proceedings the courtdirects:(c) make any order the court thinks just, including any order as to costs.36 Veterans' Support Act 2014, s 239.37 High Court Rules 2016, r 20.19[56] I note also that when a general right of appeal is exercised, the personsexercising those rights are:38entitled to judgment in accordance with the opinion of the appellate court,even where that opinion is an assessment of fact and degree and entails a valuejudgment. If the appellate court's opinion is different from the conclusion ofthe tribunal appealed from, then the decision under appeal is wrong in the onlysense that matters, even if it was a conclusion on which minds mightreasonably differ. In such circumstances it is an error for the High Court todefer to the lower Court's assessment of the acceptability and weight to beaccorded to the evidence, rather than forming its own opinion.(Footnotes omitted)Grounds of appeal[57] The main ground of appeal advanced by the GMVA against the Appeal Board'sdecision is that the majority erred in law by not deciding the claim under theprescriptive process set out in s 14 of the Act. The GMVA says that the approach ofthe majority contained the following specific errors of law:(a) The majority erred in treating s 10(b) of the Act as a substantiveoverriding provision under which a claim can be considered and ruledon, despite the prescriptive process for deciding claims in s 14 of theAct. Rather, the role of s 10(b) is to provide guiding interpretationprinciples for persons performing functions or exercising powers underthe Act.(b) Mr Griggs erred in proceeding on the basis that the Board had thejurisdiction to review regulations made under the Act and determiningthe appeal as if the Regulations had been drafted differently to includeglioblastoma in the presumptive list. Rather, he should have applied theRegulations as they are.(c) Mr Griggs erred in finding the Governor-General (when theRegulations were made on 1 December 2014) and the Minister (whenhe provided his recommendation for the purposes of s 21) had a duty38 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].under s 10(b)(ii) to give effect to the principle of promoting equaltreatment of equal claims. Neither s 10 nor s 21 were in force when theRegulations were made.(d) Mr Griggs erred in finding that when the Minister provided hisrecommendation as to which conditions ought to be specified in thepresumptive list for Vietnam veterans in reg 13(3) of the Regulations,the Kenyon claim was an equal claim giving rise to a duty to includeglioblastoma in the presumptive list.(e) Mr Griggs erred in finding that the principle of promoting equaltreatment of equal claims in s 10(b)(ii) does not confine the enquiry toclaims made under the Act.[58] Ms Roff submitted that in light of the GMVA's grounds of appeal andsubmissions, the following four issues require determination:(a) Does s 14 of the Act exhaustively state the process that must befollowed by the Appeal Board in considering an appeal under s 229 ofthe Act?(b) Is the Appeal Board bound by regulations issued under s 265 of the Act,such that, if a regulation is or may be unlawful, the Appeal Board mustapply that regulation notwithstanding any issues of illegality?(c) Will a regulation be intra vires, if at the time it is promulgated, aprovision that renders it unlawful has not yet come into effect?(d) Can a claim be an 'equal claim' for the purposes of the Act if it wasdecided under the War Pensions Act?[59] I address the appeal broadly in accordance with those issues.The effect of s 10(b) on the process envisaged by s 14Submissions for the GMVA[60] Counsel for the GMVA, Mr Goosen, submits that Ms Anderson correctlyinterpreted and applied s 14 to Tā Harawira's claim. He contends that Tā Harawira'sclaim that his illness was service-related is unable to succeed because there was noevidence of the three factors in SOP 85/2016 applying to him, and therefore thehypothesis that his illness was service-related was not consistent with the SOP.Mr Goosen says that the majority of the Board erred by failing to apply that analysis.[61] Mr Goosen submits that s 14 provides an exhaustive process unless apresumption under s 16 applies (which it does not, in this case). He argues that theLaw Commission report supports his position, emphasising particularly its commentsabout the need for change because of cumbersome administrative and decision-makingprocesses, which led to its recommendations about the use of SOPs andpresumptions.39 Mr Goosen notes that the Law Commission recommended that SOPsbe introduced and said:40The SOPs should be exhaustive, in that they would provide a complete list ofthe service-factors that link a condition with service. If not, it would defeat thepurpose of these decision-making instruments, which is to overcome thedifficulty of making consistent, legally correct decisions using the beneficialevidential provisions.[62] Mr Goosen says that the SOPs reflect decisions favourable to veterans. He alsoemphasises that the Act contemplates a process whereby SOPs are adopted andrevoked as necessary, and this is the appropriate way in which the grounds for claimsare kept up to date.Submissions from counsel assisting[63] Ms Roff promotes a broader approach to understanding s 14, which necessarilytakes longer to outline here. She submits that s 14 "should not be seen as a proceduralstraitjacket prohibiting decision makers from adopting procedures in particular casesnot provided for". She says that ss 10 to 12 are mandatory provisions, which must be39 See Law Commission, above n 6 at [iv], [5.46]–[5.48], [5.78]–[5.79] and [5.85].40 At [5.98].complied with when exercising powers or performing functions under the Act. Shesubmits that the principle of benevolence (s 10(b)(iii)) underpins the scheme andpurpose of the Act, as seen in the way the usual rules of evidence are 'jettisoned'(s 10(b)(iv)) and the 'presumptions' contained in ss 17 to 21 and 28 are intended todisplace the need for a claimant to prove that their condition was caused by theirservice.41 Ms Roff submits that when determining what a "reasonable" decision is, thefacts must be viewed through this benevolent lens, as too high a standard ofreasonableness undermines the necessary focus on the substantial merits of a claim.42[64] Ms Roff highlights that these principles were established under the WarPensions Act and were reintroduced in the Act, as intended by Parliament. She saysthis was acknowledged in Edwards v Attorney-General when Williams J said that"the spirit of the 1954 presumption remains although the structure and applicationof that spirit is rendered with the greater clarity characteristic of modern draftingpractice".43[65] Ms Roff submits that as the Appeal Board was required to reach a new andfresh decision on the evidence of Tā Harawira's claim, it was operating subject to amandatory obligation to ensure that its decision was compatible with s 10. She says:That the appellant does not agree s 10 required this of the Board on the factsis not a basis for an appeal on a question of law. As with any other decision-maker, it was a matter for the Board what s 10 required in this particular case,and the majority held that it required a different approach to that set out ins 14. The only issue could be, as discussed below, whether the Board had anyresidual discretion outside s 14 to reach that conclusion.[66] Ms Roff emphasises that s 12 requires that all decisions made by VANZ mustbe made on "reasonable grounds" and have regard to "all the circumstances". Shesuggests that when read consistently with s 12, the s 14 process must result in adecision that is consistent with VANZ reaching a decision on reasonable grounds withthe effect that the "reasonable grounds" standard operates as a final check to ensure aclaim is not unreasonably rejected.44 Ms Roff also argues that while s 12 on its face41 See Te Ua v Secretary for War Pensions [2014] NZHC 1050 at [114]–[116].42 At [115].43 Edwards v Attorney-General [2017] NZHC 3180 at [68].44 "Reasonable grounds" requirements are found throughout the Act, see ss 12, 14(6), 15(3), 27(5),28(1A), 28(2), and 63(3).applies only to VANZ, it would be absurd if VANZ was required to ensure its decisionswere made on reasonable grounds but other decision-makers under the Act were not.Given that reviewers and appeal boards are required to reach decisions afresh on thesame claims first considered by VANZ, it would be expected the same standardapplies. Ms Roff submits that the entire Act is characterised by a different, lower,standard of causation that exists in ordinary and adversarial civil litigation, which isessentially the principle of benevolence rendered into practice.45 She also notes that,as a general principle, regulation cannot exhaust decision-making discretion as amatter of public law.46[67] Ms Roff says that the application of s 14 therefore requires the principle ofbenevolence to be given effect, and that s 14 can be informed by what occurs unders 15 when there is no applicable SOP—being an assessment of whether the hypothesisdetermined under s 14(2) is a reasonable hypothesis. If a reasonable hypothesis is thenestablished, the claim must be accepted unless there are reasonable grounds forbelieving that the injury was not service-related. The overarching question under theAct is still whether there is a reasonable hypothesis that the injury is service-related.Analysis[68] As is apparent from the summary of submissions, Mr Goosen contends for astraightforward interpretation of the plain words of s 14, while Ms Roff contends thatthe correct interpretation is reached following a broader consideration of the Act andits legislative history.[69] Section 10 of the Legislation Act 2019 requires me to ascertain the meaning oflegislation from its text and in light of its purpose and its context. I have already setout the legislative background, but it is helpful here to consider specifically how ss 10and 14 of the Act evolved.45 This is apparent in the definitions of "service-related" and "service-related death" in s 7 of the Actwhich include the notions of "contributed to' and "aggravated by" as opposed to simply "causedby".46 See Westhaven Shellfish Ltd v Chief Executive of Ministry of Fisheries [2002] 2 NZLR 158 (CA)at [47]–[50]; and Graham Taylor Judicial Review: A New Zealand Perspective (4th ed,LexisNexis, Wellington, 2018) at [15.70] and [15.74]–[15.76].[70] Sections 10 and 14 were introduced at the Select Committee stage because ofthe substantial amendments proposed by the Select Committee to cl 15 of the Bill,which set out the central decision-making provision of the Bill.47 In effect, the proposalwas to shift the elements of cl 15 that the Select Committee considered relevant to theoverarching decision-making principles to be applied in determining veterans' claims,away from the specific procedural steps to be taken by VANZ in reaching decisions.48The Select Committee explained that the clause was "necessary to make the claimdecision process, and the establishment of entitlements under the proposed legislation,as clear as possible for both VANZ as decision-makers, and veterans."49[71] In the Departmental Report on the Bill, officials also addressed how veteranswere to establish their entitlements under the Act. They recommended that cl 15 beamended to clearly reflect how the Bill is intended to operate using commonlyunderstood language.50 The officials observed that the Bill was intended to "applyconclusive decision-making tools to aid the establishment of entitlements, largelyremoving the decision-making discretion ".51 They went on to recommend that thehierarchy of decision-making tools be amended to make the SOPs the primary tool toapply, noting that when a more generous presumptive decision-making conditionapplied, the benefit of benevolence must be accorded to a veteran despite any SOP thatmay apply.52 When the Bill was introduced into Parliament, the then acting responsibleMinister, Hon Nathan Guy, noted that the decision-making provisions and the pointsof reference for deciding claims were an area of change. He said that:53Underlying the rewrite of the 1954 Act was a desire not only to modernise thelegislation but to make it more accessible for both veterans and administratorsto understand and use. There was very broad support for the use of theAustralian statements of principle as the main reference point for decidingclaims. The statements of principle are comprehensive, soundly based inmedical terms, and introduce a much needed element of certainty to theprocess.47 Veterans' Support Bill 2013 (158–2) (select committee report) at 5.48 At 5. This was recommended by officials in New Zealand Defence Force "Veterans' Support Bill– Departmental Report" (February 2014) at [92]–[96].49 At 6.50 New Zealand Defence Force "Veterans' Support Bill – Departmental Report" (February 2014) at[87].51 At [89].52 At [91].53 (10 April 2017) 697 NZPD 17188.The bill also needed to modernise the legal and evidential tests for establishingentitlement [I]t became clear that more work was needed to reduce legaljargon and ensure the provisions are clearer, easier to understand, and fullyaligned with the benevolence principle in decision-making.[72] The explanatory note to the Bill records that it "enables the adoption ofdecision-making tools to assist the decision maker in determining whether a conditionis linked to a veteran's service".54 The explanatory note goes on to say thatpresumptive lists will continue to be used and SOPs will be introduced. It describesthe introduction and use of the SOPs as greatly benefiting the decision-making processas it will "reduce the amount of discretion applied by the decision-maker".55 Thus,although the Law Commission may have recommended that SOPs be exhaustive, itdoes not appear that this was carried through into the Act.56[73] The separation out of the overarching principles from the claim process issignificant. Section 10 may, as Mr Griggs commented, be unique in the statute book.In it, Parliament has not indicated matters for decision makers under the Act to haveregard to, rather it has imposed duties that are mandatory. When a person is performinga function or exercising a power under the Act, they must do so in accordance with theprinciples set out in s 10(b). In my view, these principles must be taken into accountin ascertaining the proper meaning of s 14.[74] Having carefully reviewed the Act overall, and its legislative history, I considerthat s 14 is properly understood as establishing a default process by which claimswould be determined— but not an exhaustive process. In my view, the creation of bothpresumptive conditions (as, for example, in reg 13) and SOPs were intended to benefitveterans making claims by providing, as far as possible, clear bases on which claimsmight be made out. I do not consider that Parliament intended the effect of introducingthe default process to be to exclude possible claims, to the disadvantage of veterans.Rather, I am satisfied that Parliament intended that claims made for a service-relatedcondition should be considered and determined on substantive grounds. This is clearlycontemplated in the Act, as the process in s 15 provides.54 Veterans' Support Bill (158-1) (explanatory note) at 5.55 At 5.56 See Law Commission, above n 6 at [5.98].[75] In my view, it would not be taking a benevolent approach, as required bys 10(b), to conclude that where a veteran is not assisted by a relevant SOP, they are notentitled to the benefit of s 15, whereas a veteran in respect of whom there is no relevantSOP, is entitled to the benefit of s 15. This can also be compared with effect of thepresumptive conditions in reg 13(2). These assist a potential claimant if their conditionappears in the regulation—but does not preclude them from arguing a furtherreasonable hypothesis, if it does not.[76] I accept that on its face the Act is silent on what is to occur, as a matter ofprocess, when there is a relevant SOP, but it is not applicable to the claimant'scircumstances. The effect of the GMVA's submissions is that this must be understoodas Parliament deliberately choosing that such a claim could never succeed. The furthereffect of this approach is that a veteran would be better off if there was no relevantSOP. I find such a conclusion unattractive, and inconsistent with the purpose andscheme of the Act, its legislative history, and a proper reading of ss 10 to 12, 229(5)(b),and 229(5)(c).[77] I consider that in such circumstances, a claimant should be treated as if thereis no applicable SOP, and the process in s 15 should apply. This approach accords withthe requirements in s 10(b) that a benevolent approach is taken, and that claims are notdetermined in accordance with any technicalities, legal forms, or legal rules ofevidence, but rather in accordance with substantial justice and the merits of the claim.[78] Thus, even when a SOP is apparently applicable, but no factors relate to theclaimant, the overarching question should still be whether there is a reasonablehypothesis that the condition or injury is service-related. If it is, the claim should beaccepted unless there are reasonable grounds for believing that the veteran's injury,illness or death was not service-related.[79] This approach is consistent with the requirement in s 12, which mandates thatdecisions must be made on reasonable grounds and in light of all the circumstances.[80] This approach also takes into account Ms Roff's concern that the discretionunder the Act cannot be exhausted after the fact by the issuing of SOPs. I accept thatthe Act's requirements of "consistency" with a SOP or a reasonable hypothesiscontemplates a claim that does not fit strictly with that SOP or reasonable hypothesis.This accords with s 12 and its mandate that decisions must be made on reasonablegrounds and in light of all the circumstances. It also allows the decision maker toconsider the application of the principles in s 10(b). This is important in the presentcase, as it allows the decision maker to consider whether an "equal claim" exists, asrequired under s 10(b)(ii).[81] In my view, then, the majority of the Appeal Board did not err by adopting abroader approach than the process described in s 14 in the determination ofTā Harawira's claim. Nonetheless, I do not entirely agree with the reasoning set outby Mr Griggs, and of course Dr Holdaway did not explain in any detail why he thoughtexercising benevolence required that Tā Harawira's claim for glioblastoma should betreated as a service-related condition under the Act. I return to this matter when Iconsider the appropriate relief to be given in this case.The Board's jurisdiction in relation to the RegulationsSubmissions[82] Mr Goosen submits that the Appeal Board did not have the jurisdiction toaddress the question of "what the Appeal Board should do if there is a conflict betweenone or more of the principles specified in s 10(b) and a regulation made undersection 265". This was the question posited by Mr Griggs in his reasons as the coreissue in the appeal.[83] Mr Goosen says instead that ss 229(5)(b) and 229(5)(c) require an AppealBoard to apply the general principles in s 10(b) when deciding appeals under anyrelevant provisions of the Act and any regulations made under s 265. He submits thatan Appeal Board is not empowered or authorised to determine appeals on the basis ofwhat it considers should have been included in regulations made under the Act, andthat the interpretation principles in s 10(b) cannot override regulations made under theAct. Rather, any regulations must be taken as they are and interpreted and applied inlight of the s 10(b) principles.[84] Ms Roff does not consider that the Appeal Board reached a view as to whetherthe Regulations were ultra vires and so the error of law raised by the GMVA isacademic and not properly subject to appeal. She also submits that in any event, theAppeal Board would have been justified in embarking on a "collateral challenge"analysis.57 Regulations are only lawful to the extent that they comply with theempowering legislation, which is assessed against the Act's wording, and also thepurpose for which regulation-making power is conferred.58 Ms Roff argues that s 10would be important in determining that purpose and that a regulation incompatiblewith s 10 is likely ultra vires as involving an improper purpose. Ms Roff contends thatthe Appeal Board need not apply regulations it considers to be unlawful when makingits decisions.Analysis[85] While Mr Griggs did express a view that a "collateral challenge" could becontemplated in principle, he said that it was not necessary for him to consider whetherthe omission of glioblastoma from reg 13(3) was "in breach of the duty in s 10(b)(ii)[and] could be viewed through the lens of invalidity" because: section 10(b)(iv), read together with section 229(5), obliges the AppealBoard to determine the Appellant's claim in accordance with substantialjustice and the merits of the claim. If, as I do, the majority of the Appeal Boardconsiders that the Governor-General had a duty to include glioblastoma in therelevant presumptive list, then in my view it is the duty of the Appeal Boardto determine the claim as if that had in fact been done. While section 229(5)(c)of the VSA does require the Appeal Board to comply with the VSR, it doesnot oblige the Appeal Board to give effect to an omission from the VSR whichcontravenes section 10(b) or any other provision of the Act. That wouldcontravene the VSA, with which the Appeal Board is also required to comply.[86] I find Mr Grigg's reasoning problematic. I accept that he made no findingsexplicitly "through the lens of invalidity", but there seems to be little differencebetween doing that, and his ultimate conclusion, being that the inconsistency ofreg 13(3) with s 10(b) required the reading in of glioblastoma. The preeminent groundunder which a regulation might be considered invalid is that it is inconsistent with itsempowering provision.57 Brady v Northland Regional Council [2008] NZAR 505 (HC).58 Unison Networks Limited v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 at [53].[87] While Dr Holdaway agreed with Mr Griggs that exercising benevolencerequired that Tā Harawira's claim for glioblastoma be treated as a service-relatedcondition under the Act, he also said that the Appeal Board must apply the Act "asintended" and had no authority to change or add conditions to the presumptive list. Inthis respect (despite some residual uncertainty as to what Dr Holdaway meant byapplying the Act "as intended"), this suggests he and Ms Anderson were in agreementas to the latter point.[88] For these reasons, I do not consider that a majority of the Appeal Board reacheda view that the Regulations were unlawful, or purported to judicially review them.There is simply no basis for such a conclusion, having regard to the reasons of thethree members of the Appeal Board. On this basis, I conclude that a majority of theAppeal Board did not take an approach which could establish the grounds for assertingan error in law in its decision, in this respect. Accordingly, I do not need to address thefurther question of the availability of a "collateral challenge" to the regulations as amatter of law, although I note that such a challenge may indeed be available inprinciple.59The alleged duty of both the Governor-General and Minister to give effect tos 10(b)Submissions[89] Mr Goosen submits that neither the Governor-General nor the Minister couldhave been subject to the duty pursuant to s 10(b)(ii) to give effect to the principle ofpromoting equal treatment for equal claims, described by Mr Griggs, at the time theRegulations were made, and could therefore not have breached such a duty.Mr Goosen submits when the Minister recommended the Regulations be made, andwhen the Governor-General made the Regulations on 1 December 2014, they were notsubject to s 10, as the Act was not yet in force. He says:(a) the Act received royal assent on 7 August 2014;59 See Attorney-General v P F Sugre Ltd [2004] 1 NZLR 207 (CA) at [48]. See also Judicial Review:A New Zealand Perspective (4th ed, LexisNexis, Wellington, 2018) at [6.11].(b) pursuant to s 2(1), the Act came into force four months after the date ofroyal assent, being 7 December 2014, except the provisions specifiedin ss 2(2), and 2(3), which came into force on 8 August 2014;(c) sections 10 and 21 are not in any of the provisions that came into forceon 8 August 2014, and accordingly came into force on 7 December2014;(d) section 265, which provides the power for the Governor-General tomake regulations, came into force on 8 August 2014;(e) the Regulations were made on 1 December 2014; and therefore(f) section 10 was not in force at the time the Regulations were made, andcould not have applied to the Minister recommending, or the Governor-General making, those Regulations.[90] Mr Goosen says that, as a result, it is unnecessary to address Mr Griggs'conclusion that the Governor-General could have a duty of care under s 10 to considerwhether proposed regulations are lawful as against the requirements of s 10.[91] Ms Roff submits that a regulation must always be lawful. She says that if theempowering legislation is changed such that the regulation is no longer lawful, then itis unlawful. She submits that in this case the Regulations cannot be preserved merelyby "fortuity of timing".Analysis[92] I agree that secondary legislation must always be lawful, and that amendmentto empowering legislation that necessarily makes secondary legislation unlawfulwould have the effect of invalidating that secondary legislation. Secondary legislationmust align with its empowering provisions, and the principles which apply to theexercise of discretion to promulgate secondary legislation. Whether regulationscomply with the empowering legislation is assessed against an Act's wording, and alsothe purpose for which regulation-making power is conferred.[93] However, I consider that this issue is moot, as a majority of the Appeal Boardin the present case did not make, nor purport to make, explicit findings as to thevalidity or legality of the Regulations as made under the Act. While I consider that theRegulations are indeed required to comply with s 10 and all other relevant provisionsin the Act, it is therefore not necessary for me to reach a conclusion about this for thedetermination of the present appeal and I do not do so.The impact of the Kenyon decision and the principle of equal treatmentSubmissions for the GMVA[94] Mr Goosen submits that as s 10(b)(ii) was not in force at the time theRegulations were made, Mr Griggs erred in law in concluding that the Kenyondecision was required to be considered an 'equal claim' at the time the Ministerprovided his recommendation in 2014 as to which conditions ought to be specified inthe presumptive list for Vietnam veterans.[95] Mr Goosen also says that the Kenyon case cannot be an equal claim under theAct. He relies both on the fact that it was decided under the War Pensions Act and oncomments made by Simon France J in Keelan v The General Manager of Veterans'Affairs New Zealand.60 In that case, Simon France J considered whether principlesespoused by Whata J in a decision pursuant to the War Pensions Act could beconsidered to be applicable in full to decisions made under the Act.61 His Honourstated:62Sections 14 and 15 prescribe a process for deciding claims that is bothprescriptive and different from that which existed under the War Pensions Act1954. A central feature of the new scheme is the adoption of what are calledstatements of principles which govern the consideration of claims for differentconditions. These statements of principles are extensive documents thatidentify a list of criteria applicable to almost every condition. For example, inrelation to osteoarthritis (for which there is a standalone Standard) 40 differentcircumstances are identified, any one of which, if applicable to the veteran,will see the claim presumptively accepted. In adopting this methodology theAct expressly at s 22 draws on the statements of principle already establishedby the Australian Reparation Medical Authority. The fact that the existence ofone such situation will trigger the presumption is an example of thebenevolence principle being built in.60 Keelan v The General Manager of Veterans' Affairs New Zealand [2016] NZHC 1869.61 See Te Ua v Secretary for War Pensions, above n 41.62 Above n 59, at [33], [35], and [36].it would be inappropriate to declare that Whata J's analysis of a verydifferent scheme applies here. I am unaware of any principle of interpretationthat would support such an approach. It would be rather unexpected that,Parliament having updated a statutory scheme that is itself the product ofsignificant Law Commission work, the Court would then immediately readback various provisions from the old Act that have not been carried over.There is no good policy reason to make a declaration like the one sought. Thenew Act can stand for itself, and be interpreted as required. It would also be adeclaration that is far too vague to be of benefit - in order to be effective, onewould have to identify in the declaration what the Te Ua principles are (theplaintiffs provide a list of them) and then give some sort of detailedexplanation as to how they apply to ss 14 and 15 of the new Act.[96] His Honour considered that it would be an incorrect approach to interpretationto seek to in effect transfer repealed provisions from a repealed Act into a new statutewith its own scheme.63 Having declined to make any of the declarations sought, hisHonour concluded:64The proposition that the language and presumptions contained in the previousAct should be overlaid on the text of the present Act is rejected. It is a newAct with its own purposes and principles. It establishes a differentmethodology for assessing claims. There is no interpretation approach orprinciple that would support what the plaintiffs propose.[97] Mr Goosen says that Keelan is authority for the principle that the test fordeciding claims under the Act and the War Pensions Act is different. He submits thatthe claim in Kenyon was successful because the veteran concerned was entitled to thebenefit of the presumptions contained in the War Pensions Act, and that the principleof equal treatment for equal claims under the Act must mean equal treatment of equalclaims under the Act, not the War Pensions Act. Parliament cannot have intended thatthe Act require claims to be decided by reference to claims decided under a different(and now repealed) Act. Mr Goosen submits that this accords with the requirement ins 199 of the Act that it is a function of VANZ to provide entitlements to veterans andother claimants "in accordance with the Act".63 Above n 58, at [42].64 At [72].Submissions from counsel assisting[98] Ms Roff says instead that Keelan is not authority for the proposition that an'equal claim' in terms of s 10 cannot be found by relying on a successful claim underthe War Pensions Act. She submits the correct approach is that a claim under the WarPensions Act may amount to an equal claim in terms of s 10 and whether it does willdepend on the circumstances. She relies on the intention of Parliament noted abovethat the foundational provisions and principles of the War Pensions Act were to becarried through into the new legislation. She submits that it therefore cannot be thatParliament intended for successful claims under the War Pensions Act to be entirelyirrelevant to the scheme established by the Act.[99] Ms Roff submits that whether any two claims are 'equal' depends on thoseclaims themselves factually, and where they arise under different legislation, theparticular legal implications. A case-by-case analysis is required, with decisions underthe Act to be made on the basis of substantial justice, rather than technicalities or legalforms.65 Ms Roff submits that merely stating that the War Pensions Act is different tothe Act is to invite reasoning based on form, rather than substance.[100] Ms Roff also says that in Keelan, Simon France J properly notes that s 14 isprocedurally more prescriptive, but submits that his Honour did not discuss ss 10 to12 or the history of the Act in any detail, and notes that the issue of 'equal claims' doesnot appear to have been directly in issue in that case. Rather, Simon France J observedthat decisions were required to be 'context-specific', necessarily turning on theparticular facts before the decision-maker, and that is not consistent with thesuggestion that his Honour was deciding that claims under the War Pensions Act couldnever be equal claims under the Act.[101] Ms Roff also observes that the Appeal Board did not deal with the argumentbefore it about the relevance of case law from the United States, where claims relatingto glioblastoma have been accepted.65 Veterans' Support Act 2014, s 10(b)(iv).Analysis[102] I do not consider that Keelan is authority for the position that no successfulclaim made under the War Pensions Act can be relevant to the assessment of a claimunder the Act. Keelan involved a group of veterans alleging that what they describedas the "Te Ua principles" had always to be applied by VANZ under the Act. The "Te Uaprinciples" were matters discussed by Whata J in an earlier judgment under the WarPensions Act.66 The applicants in Keelan sought declarations that these principlesapply to decisions to be made under the Act when no such decisions had yet beenmade. The central issue in the case was whether an interpretation of the War PensionsAct could be superimposed upon the Act, notwithstanding the differences between thetwo. No specific claim, or even factual context relating to a specific claim, was beforethe court, and this was noted by Simon France J, who went to great lengths to describewhy it would be inappropriate to make the declarations sought by the applicants.67 HisHonour's conclusion was instead to reject the argument that any principle or claimunder the War Pensions Act must automatically apply in the same way under the Act.[103] Further, as a matter of interpretation of the Act, particularly s 10, I considerthat Mr Goosen's interpretation of the effect of Keelan also prioritises form oversubstance, or legal technicalities over substantial justice. In my view, it is entirely clearthat, despite the differences between the previous and current legislation, the broaderprinciples that apply to the determination of claims are the same.[104] I consider that it would be inappropriate for the legal position to be that theKenyon claim is unable to be regarded as equal to Tā Harawira's claim simply becausethe claims arose under different legislation, given the clear Parliamentary intentionthat the Act was, in important purposive senses, a continuation of the earlierlegislation. Mr Kenyon's claim appears to be similar to Tā Harawira's claim and asstated by Mr Griggs, "a previous claim by a New Zealand veteran of the sameoperational theatre in respect of the same condition is, absent any other distinguishingcharacteristics, an equal claim". However, I make no finding about this as I considerthat is a matter that is for the Appeal Board to further address.66 Te Ua v Secretary for War Pensions, above n 41.67 Keelan, above n 60, at [18]–[27].[105] Any other view is one that favours legal technicalities over substantial justice.When broadly the same principles apply to the determination of a claim under eachstatute, and the claim is sufficiently similar, that must be relevant to the determinationof whether there is a reasonable hypothesis that an illness, injury, or death was service-related, both as a matter of fact and a matter of law. There can be no hard and fastexclusion of successful claims under the War Pensions Act; it must instead be aconsideration of all of the circumstances as they present themselves before thedecision-maker. I consider the principles in s 10(b) prohibit an analysis that regardssuccessful claims made under the War Pensions Act as automatically irrelevant,merely on the basis that there is now a different statute.[106] The argument advanced by Tā Harawira before the Appeal Board relied notonly on Kenyon but also successful claims made for glioblastoma in the United States.As noted earlier, Ms Anderson accepted that there was a reasonable hypothesis thatTā Harawira's glioblastoma was service-related, based on scientific literature from theUnited States. Given the references in ss 14 and 15 to reasonable hypotheses in relationto a finding that an injury is service-related, I consider that it remains open to adecision maker to find such information, and overseas case law, of assistance. It isclear from the use of SOPs made in reliance on the work of the Australian RepatriationMedical Authority, that overseas approaches have been considered relevant to theNew Zealand approach.[107] For the avoidance of doubt, I confirm that it must also be correct that where aclaim was accepted under the War Pensions Act, it must not necessarily be acceptedunder the Act as an equal claim. Again, a full consideration of the two claims must beundertaken by the decision maker.[108] Given these views, it will be apparent that I do not see any merit in theargument that as s 10(b) was not enacted at the time the Regulations were made, theKenyon case could not be an equal claim at the time the Minister provided hisrecommendation about reg 13 in 2014.Conclusion[109] My conclusions as to the questions of law raised in this appeal are that:(a) section 14 is not an exhaustive code for considering a claim under theAct;(b) in circumstances where a SOP appears to be applicable to a claim butthe claimant cannot establish any of the factors contemplated by theSOP, the correct interpretation of the Act requires VANZ to treat theclaim in accordance with the process in s 15, addressing whether theclaim is consistent with a reasonable hypothesis, and accepting thatclaim unless there are reasonable grounds for believing that theveteran's injury, illness or death is not service-related;(c) in applying the principle of equal treatment for equal claims found ins 10(b)(ii), a claim determined under the War Pensions Act may beconsidered an equal claim to a claim under the Act; and(d) in determining a claim under the Act, VANZ may take into accountscientific literature and overseas caselaw if VANZ considers it willassist, consistent with s 10(b).[110] It will therefore be apparent that there are aspects of the reasoning of bothMs Anderson and Mr Griggs with which I do not agree. I am also concerned about theabsence of reasons from Dr Holdaway.[111] Nonetheless, I conclude that as a matter of law, it was open in principle to themajority of the Appeal Board to reach the outcome that Tā Harawira's claim forglioblastoma must be treated as a service-related condition under the Act. In my view,the appropriate approach to Tā Harawira's claim, in circumstances where there was arelevant SOP but none of the factors in the SOP applied to Tā Harawira, was for theAppeal Board to adopt the process set out in s 15 of the Act. In undertaking thatprocess, the Appeal Board should have also considered the principles in s 10(b),especially that of equal treatment of equal claims. The Appeal Board may not refuseto take account of the decision in Kenyon solely because it was a decision under theWar Pensions Act.[112] I have concluded that it would not be appropriate for me to use the poweravailable to me make my own decision in relation to Tā Harawira's claim. Rather Ifind that, in the circumstances, the Appeal Board should consider the claim again,given my conclusions as to the questions of law. This is for two reasons. First, thenature of the Appeal Board decision is such that while there is a majority decision thatTā Harawira's claim for glioblastoma must be treated as a service-related conditionunder the Act, there is no clear shared reasoning for that outcome. In my view, theAppeal Board should have a further opportunity to consider the claim and providereasoning that supports the outcome reached (or another outcome, once the claim isconsidered in light of my conclusions as to matters of law, above). Second, inundertaking this task, the Appeal Board will be required to assess Tā Harawira'smedical information and other relevant information, such as Kenyon, and possiblyother decisions or material. I am not confident that all such information is before me,and nor have I heard argument in relation to it. These reasons are enhanced by the factthe Appeal Board is a specialist body of which one member must be a medicalpractitioner.Relief[113] I direct the Appeal Board to consider again Tā Harawira's application for adisablement pension. I direct the Appeal Board to take account of my conclusions asto the questions of law, in so doing. I also direct each member of the Appeal Board toprovide reasons for their conclusions, which, as a matter of principle, they must do.68Result[114] The appeal is allowed.Costs[115] Costs were not addressed by counsel at the hearing. My preliminary view isthat in the circumstances, costs should lie where they fall, particularly as Ms Roff's68 A failure to give reasons or an inadequate statement of reasons is a reviewable error. See forexample Bell v Victoria University of Wellington HC Wellington CIV-2009-485-2634, 8 December2010 at [76]; and Graham Taylor Judicial Review: A New Zealand Perspective (4th ed,LexisNexis, Wellington, 2018) at [9.05]–[9.06].costs will be paid by the Court and the estate took no part in the appeal. If the GMVAor Ms Roff have a different view, they are to file a memorandum of no longer than fivepages within 15 working days of the date of this judgment. Any memorandum in replyis to be filed within a further five working days. Costs will then be decided on thepapers.McQueen JSolicitors:Crown Law, Wellington