Bennett, Audrey v Repatriation Commission
[1997] FCA 485
•5 JUNE 1997
CATCHWORDS
VETERANS AFFAIRS - appeal from Administrative Appeals Tribunal upholding a decision of the Repatriation Commission refusing war widow's pension - whether tribunal erred in law in not finding a reasonable hypothesis connecting war service and veteran's death - veteran disappeared while on fishing trip in small boat - accepted war-caused disability in feet and shoulders - whether Tribunal erred in finding s 120(3) not satisfied if range of hypotheses open - whether Tribunal erred in requiring proof of every link in chain between war-caused condition and death - whether case should be remitted - long delay and loss of documents by Department
Administrative Appeals Tribunal Act 1975 (Cth) ss 44, 44(4), 44(5)
Veterans' Entitlements Act 1986 (Cth) ss 8, 120(1), 120(3)
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Cooke v Repatriation Commission (Einfeld, Lee and Carr JJ, unreported, 30 April 1997)
East v Repatriation Commission (1987) 16 FCR 517
Gilbert v Repatriation Commission (1989) 86 ALR 713
Lowerson v Repatriation Commission (1994) 50 FCR 252
Repatriation Commission v Jenkins (Foster, Lindgren and North JJ, unreported, 26 March 1997)
Repatriation Commission v Owens (1996) 70 ALJR 904
Repatriation Commission v Stares (1996) 66 FCR 594
Repatriation Commission v Webb (1987) 76 ALR 131
Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125
Veterans' Affairs(1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth)
Audrey Bennett -v- Repatriation Commission
(No. VG 335 of 1996)
Judge: Heerey J
Date: 6 June 1997
Place: Melbourne
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No. VG 335 of 1996
GENERAL DIVISION
On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by Deputy President B.M. Forrest
B E T W E E N:
AUDREY BENNETT
Applicant
- and -
REPATRIATION COMMISSION
Respondent
JUDGE: Heerey J
DATE: 6 June 1997
PLACE: Melbourne
MINUTES OF ORDER
The Court orders that:
The appeal be allowed.
The decision of the Administrative Appeals Tribunal made on 14 August 1995 be set aside and that in lieu thereof there be substituted the following:
(a)that the veteran's death was war-caused within the meaning of s 8 of The Veterans' Entitlements Act 1986;
(b)that the respondent pay to the applicant a Widows Pension pursuant to the Act with effect from 10 November 1992;
The applicant's costs of the appeal, including reserved costs, be paid by the respondent.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rule
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No. VG 335 of 1996
GENERAL DIVISION
On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by Deputy President B.M. Forrest
B E T W E E N:
AUDREY BENNETT
Applicant
- and -
REPATRIATION COMMISSION
Respondent
JUDGE: Heerey J
DATE: 6 June 1997
PLACE: Melbourne
REASONS FOR JUDGMENT
This appeal by a veteran's widow from the Veterans' Appeals Division of the Administrative Appeals Tribunal is concerned with the much-litigated s 120(1) and (3) of the Veterans' Entitlements Act 1986 ("the Act"). It is, however, somewhat unusual in that it does not turn on matters of expert medical opinion. The relevant conditions from which the late veteran suffered are accepted as war-caused. The issue is whether the Tribunal erred in law in not finding a reasonable hypothesis which connected those conditions with the veteran's death.
The provisions in question are:
120.(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, relates to the operational service rendered by the veteran, or of the death of a veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
...
In applying sub-section (1)or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused,
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
The present case is governed by the law as it stood prior to the insertion of ss 120A and 120B in the Act by the Veterans' Affairs(1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth).
The veteran, Harry William Bennett, was born on 7 March 1917. On 25 July 1940 he enlisted in the AIF and served in Australia and the Middle East. In later life he worked with the State Electricity Commission of Victoria as a Public Relations Officer and retired from that position on reaching the age of 65.
He lived with his wife, the present applicant, at Moe in Victoria. He was happily married for 39 years and had no financial worries. One of his favourite pursuits was fishing. He had fished in the Port Albert area in South Gippsland for 38 years and had an excellent knowledge of local tides, currents and weather conditions. He owned a 12 foot wood and fibreglass open boat with an outboard motor. The boat had about three feet freeboard.
He was not in good health. At the time of his death he had the following disabilities which were determined as war-caused:
(a)destructive arthritis of metartarso-phalangeal joints of both feet;
(b)arthritis of both acromio-clavicular joints;
(c)bursitis of the right heel; and
(d)amputation of the terminal phalanx left big toe.
He suffered from other disabilities which were not war-caused:
(e)systemic disorder;
(f)prostatitis;
(g)osteoarthritis of both shoulders;
(h)essential hypertension;
(i)left calcaneal spur;
(j)tinea pedis;
(k)functional dyspepsia;
(l)carcinoma of bladder with metastases;
(m)hysteria; and
(n)chronic venous thrombosis in the right leg.
The condition of his feet affected his mobility. When on uneven surfaces he was unsteady and tended to stumble. His gait was described by his widow as a "sort of hobbled limp". He was markedly short of breath. He was unable to raise his arms above shoulder level. His shoulder function had become very inhibited and he complained a lot of shoulder pain not long before his death.
He was not diabetic and did not suffer from epilepsy. He was not prone to fainting and had not, to Mrs Bennett's knowledge, spontaneously lost consciousness on any occasion. His son described him as formerly a very good swimmer, but he "deteriorated quite a bit in later years, due to the shoulder problems". His son had not seen him swimming in his later years and estimated that he could possibly swim 20 metres in an emergency.
The Veteran's Death
On Saturday 22 January 1983 Mr Bennett embarked on a fishing expedition in his boat from Port Albert. Prior to leaving the boat ramp, at about 10.30 am, he was observed by Mr James Kee, a solicitor of Yarram, who was himself launching a boat. Mr Kee offered assistance to Mr Bennett by holding his boat secure. Mr Kee observed that Mr Bennett had "great difficulty getting into his boat". He then had problems starting the motor. He "tried to stand up in his boat to start the engine and he almost toppled over". After approximately 10 minutes, the motor started. Mr Bennett thanked Mr Kee and set off. Mr Kee observed that in Mr Bennett's boat there was fishing tackle, and also a container of approximately five gallons which appeared to be a fuel container, probably made of plastic.
Later that day, at about 3.05 pm, Mr Kee again saw the veteran. His boat was anchored and he appeared to be fishing. This was at a point approximately 3 kilometres west of Port Albert. The tide had just changed and there was a strong easterly blowing.
The sea was "choppy to rough". Another witness, Mr Robert Cunico, described seeing what would seem to have been the veteran and his boat about 3.00 pm where the Clumps Channel and Midge Channel join. The immediate locality was sheltered with about one foot swells in the Clumps Channel. But returning east to Port Albert through the Midge Channel area Mr Cunico estimated the swells at four feet and the water as "quite rough".
Upon the veteran failing to return at the expected hour of 5.00 to 5.30 pm, a search was put in train. The following morning his boat was found on the shore of Scrubby Island, about one kilometre south-west of Port Albert. The anchor was still sitting in the bow, some of the anchor rope was in the water. The motor was down and the throttle control in the "start" position. The plastic propeller had one broken blade and the other blades were "pretty scarred up". The fuel tank was empty. The bilge was dry. The petrol line was disconnected from the motor. The boat was upright. The fishing tackle appeared intact, but the fuel container, a paddle and a waterproof jacket were missing. There were about two dozen fish in the boat. No footprints were found on the beach in the vicinity of the boat and there was no other trace of the veteran.
On 29 December 1984 some skeletal remains, believed to be those of the veteran, were found on the western beach of Dog Island, about one kilometre east of Port Albert. The remains gave no indication of cause of death.
Tribunal Hearing
Counsel for the applicant advanced three hypotheses linking the veteran's death with his war-caused conditions:
The veteran fell into the water as a result of the war-caused disability affecting his feet, and drowned because he was unable to swim to safety or reboard the boat, or suffered a cardiac arrhythmia in association with the stress of being placed in the water;
The veteran fell into the water as a result of some cause other than the condition of his feet and drowned, being unable to swim to safety or re-board the boat because of the war-caused disability affecting his shoulders;
(iii)The veteran deliberately entered the water either to fix the boat, or attempt to bring it to shore, and in the process got into difficulties and was unable to either get to shore or re-board the boat because of the war-caused disability affecting his shoulder.
Mr Rollo, a general surgeon, gave some evidence supporting the reasonableness of these hypotheses based on information obtained from the applicant and her son.
The Commission called Dr Ranson, a pathologist with 15 years experience in clinical forensic medicine. He said there was no objective evidence from the remains of the veteran upon which a cause or mechanism of death could be inferred. He considered potential causes of death to fall under the headings homicide, suicide, accident or natural disease. Dr Ranson thought it
possible that the veteran could have suffered a sudden cardiac arrest, that he could have fallen into the water and died as a result of drowning or cardiac arrhythmia, or that he could have suffered an epileptic fit and fallen in, or he could have died of cancer as a result of cerebral metastases leading to epilepsy. Dr Ranson accepted that the circumstantial factors did not point to homicide or suicide.
Tribunal's Decision
After referring to s 120(1) and (3) and the decisions of the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564 and the Full Court of the Federal Court in East v Repatriation Commission (1987) 16 FCR 517 the Tribunal said:
The hypostheses put forward by the applicant assume the occurrence or existence of facts. That itself does not make the hypotheses unreasonable, as the High Court pointed out in the joint judgement of Mason CJ., Gaudron and McHugh JJ., in Byrnes (at 570). In that case the hypothesis was not unreasonable because it assumed the appellant suffered a severe injury when he dived into a pool notwithstanding the material did not reveal the extent of injury. There, a factual foundation was provided.
In the present case there is evidence, which is accepted, that the veteran would because of his war-caused disability, have great difficulty in getting back in the boat once in the water. There is nothing known as to the circumstances in which the veteran left the boat or of the cause of his death. The hypotheses advanced by Mr Keely [counsel for the applicant] are all possibilities. They assume a range of possibilities, including that on the first hypothesis the veteran was in the water as a result of war-caused disability and not some other serious medical disability or some other cause and on each of the hypotheses when he entered the water he was alive and conscious. Other circumstances may equally be postulated, for instance, the veteran suffered cardiac failure and lost consciousness and in the rough conditions fell and/or was thrown into the water. Other possibilities come to mind. In the present case the factual foundation is missing.
The medical evidence is of limited assistance. The competing theories advanced are not so much questions of a medical nature involving scientific expertise but of
speculation as to the circumstances in which the veteran left his boat.
On Mr Rollo's hypothesis the cause of death was drowning due to the veteran's inability to get himself out of the water because of his war-caused shoulder disability. Each of the scenarios mentioned by Mr Rollo contain assumptions of fact - possibilities all - but left open on the material before the Tribunal.
Dr Ranson saw his task as deciding which of the scenarios outlined in his report is the more probable. In a consideration of s. 120 it is not the role of the decision maker or the Tribunal to decide which is the more probable occurrence.
Because the material leaves open a range of possibilities as to the cause of the veteran's death I am unable to say that the facts point in the direction of one of the hypotheses relied upon by the applicant. That leaves the Tribunal in the position of being unable to conclude that a reasonable hypothesis is raised connecting the veteran's death with the circumstances of his war service.
For these reasons the decision under review is affirmed.
Error of law
In my opinion, the Tribunal misconstrued s 120(3), and erred in the approach that it took. It was no answer to the applicant's case to assert that the hypotheses advanced were amongst "a range of possibilities". It was sufficient for her case that the whole of the material raised a reasonable hypothesis connecting the death with the admitted war-caused conditions of the veteran. Indeed, a feature of this case is that there was more than one hypothesis raised by the material sufficient to satisfy s 120(3).
The reasonableness of the applicant's hypotheses was supported by some of the surrounding circumstances. The weather was rough. The damage to the propeller (which the veteran's son had recently seen in good condition), the fuel tank being dry with the fuel line disconnected and the fuel container being missing all suggest that some untoward event involving the boat or its motor
had occurred and caused the veteran to be in a standing position.
In my opinion, the Tribunal fell into an error similar to that identified by the Full Court in the recent decision Cooke v Repatriation Commission (Einfeld, Lee and Carr JJ, unreported, 30 April 1997). Einfeld J said (at 18):
By its use of the words "mere possibility" to ground a conclusion that a reasonable hypothesis had not been raised, the Tribunal seems to have understood that "mere possibility" was inconsistent with a reasonable hypothesis. A hypothesis is the premise on which a supposition is based or a possibility suggested. It is in substance a possibility. Therefore, a statement that a reasonable hypothesis is not raised because it "leaves the matter in the realm of mere possibility" reflects a misconception of the task imposed on the Tribunal by s 120 of the Act as it was at the relevant time.
Later his Honour said (at 43):
At the stage of its examination of the hypothesis for reasonableness, the Tribunal was not required to examine the evidentiary material and form an opinion as to the likely cause of the injury. It had first to determine whether the material did or did not raise facts capable of supporting or pointing to the hypothesis of connection between the appellant's war service and his anxiety state. On its face, as I have sought to show, there can be little doubt that there were such facts placed before the Tribunal. Moreover, the hypothesis was not fanciful or untenable and was not contradicted by known scientific facts.
Similarly Lee J said (at 5):
An hypothesis is the argument constructed from a supposition or a possibility. A statement that a reasonable hypothesis is not raised because it "leaves the matter in the realm of mere possibility" is inconsistent with the application of s 120 of the Act according to its proper construction.
His Honour also said (at 10):
Under s 120(3) the Tribunal is not required to examine the material and form an opinion as to the likely cause of injury. It is required to ask whether it is of the opinion that on the whole of the material before it a reasonable hypothesis connecting the circumstances of a veteran's war
service with the injury suffered has not been raised. It may form that opinion only if the hypothesis sought to be raised is fanciful, or is contradicted by known scientific facts, or is excluded by proof, beyond reasonable doubt, of the actual cause of the injury which disproves the hypothesis, or by proof, beyond reasonable doubt, that a fact on which the hypothesis relies does not exist.
A feature of the present case is that the primary facts were undisputed. It was not a case where the Tribunal found, as a matter of fact, that the actual cause of the death was a non war-related condition, thereby excluding any reasonable hypothesis for the purposes of s 120(3): see Repatriation Commission v Owens (1996) 70 ALJR 904. If one excludes as remote and fanciful homicide or suicide, as I think the Tribunal implicitly did, the only other explanation the Commission could point to was that of a heart attack or epileptic episode. While no doubt possible, those hypotheses, if one had to choose, seem less likely than the applicant's. For the Commission to succeed, the actual cause would have to be a heart attack or epileptic episode, unrelated to any of his stability problems, which killed the veteran or rendered him unconscious before he entered the water.
But in any case it is abundantly clear that it is not a matter of the claimant under the Act having to show that war condition related hypothesis was the most reasonable.
Another error the Tribunal made is disclosed in the passage which commences:
There is nothing known as to the circumstances in which the veteran left the boat or of the cause of his death. The hypotheses advanced by Mr Keely are all possibilities.
In supporting the Tribunal's reasoning, counsel for the Commission relied on what was said in East v Repatriation Commission (1987) 16 FCR 517 at 532-533 and Gilbert v Repatriation Commission (1989) 86 ALR 713 at 721.
In the latter case Hill J said:
If the material before the Commission discloses no evidence at all grounding the hypothesis so that the hypothesis is merely abstract, then it may be said either that the hypothesis is not raised on that material at all, or that such hypothesis is not, having regard to that material, a reasonable one. In other words, there must be some evidence to be found in the material before the Tribunal, or, as was said in East, the hypothesis must "find support in that material, that is, the material must point to and not merely leave open, a hypothesis as a reasonable hypothesis".
However, as the foregoing discussion should make clear, the present applicant's hypotheses were not "merely abstract". The Tribunal's approach would require a claimant to prove every link in a chain joining the war service to the injury, disease or death. In my opinion, this is contrary to law. In Byrnes, (1993) 177 CLR at 570, the High Court said:
In some cases, the hypothesis may assume the occurrence or existence of a "fact". That itself does not make the hypothesis unreasonable. So, in the present case, the appellant's hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the Commission did not reveal the extent of the injury which he then suffered. [Emphasis in original.]
The facts of Byrnes illustrate the point. The hypothesis advanced in that case required the war-caused injury of the veteran to be severe. Notwithstanding the argument of counsel for the Commission in the present case, the mere fact that the veteran in Byrnes had been hospitalised for four or five days would not of itself prove that the injury was severe. The High Court itself did not suggest such an explanation. Thus the fact of the injury being a severe one was part of the hypothesis which had to be assumed.
An even more striking example is Lowerson v Repatriation Commission (1994) 50 FCR 252. There the hypothesis said to be raised was that the veteran's death in a single vehicle road accident was caused by his war-caused condition of alcoholism. There was no evidence of the veteran's activity in the period between him finishing work at 6.00 pm on a Friday evening and the accident some eight hours later. The sole eye-witness to the accident made no mention of alcohol, nor did the investigating police officer who attended the scene, nor did the hospital staff where the veteran was admitted, despite specific instructions on a hospital admission form to report signs of alcohol consumption. Nevertheless the evidence was that the veteran habitually drank heavily on a Friday night and often drove too fast. After dealing with those and other matters Einfeld and Beazley JJ (with whom Neaves J agreed) said (at 263) that the evidentiary material:
... clearly raises matters and identifies evidence which, if accepted or found to be true, point to alcohol as a manifestly reasonable hypothesis of the cause of the veteran's death in accordance with the concept defined in East and Bushell. They are the types of material upon which circumstantial cases are regularly put to juries in criminal proceedings, such as to establish the defence of provocation referred to by the majority in Bushell. Under s 120 their reliability is not to be challenged until the Tribunal comes to determine whether it is satisfied beyond reasonable doubt that they are unproved ("do not exist").
In the light of their Honours' reference to circumstantial evidence it is perhaps useful to recall that it is not correct to consider each item of circumstantial evidence in isolation from others; the proper approach is to consider the weight of the combination of proven facts and determine whether the combined weight of those facts supports the relevant inference, as a matter of probability: Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125.
Lowerson was, I was told, much debated in argument before the Tribunal but is not referred to in the decision. In both Lowerson and the present case an essential element of the hypothesis (veteran consuming alcohol on the night in question, veteran entering the water while conscious) was a matter of assumption. Indeed the present case is stronger than Lowerson since there are no primary facts pointing against the applicant's hypotheses.
Likewise in Repatriation Commission v Stares (1996) 66 FCR 594 at 601 the Full Court referred to the passage in Byrnes (1993) 177 CLR 564 at 569 dealing with the expression "point to some fact or facts" - which was used in Bushell and before that in East. The Full Court said:
By there saying that "the material must point to some fact or facts" their Honours were not erecting a requirement that each element in the hypothesis must be supported by evidence tending to establish it. Such a requirement would convert the hypothesis to a prima facie conclusion. It is trite to observe that a hypothesis is no more than a supposition or conjectural explanation of an ultimate fact.
...
Nor do we understand the High Court in Byrnes' case to say
that an assumption is only permissible at the stage of determining whether or not an hypothesis is reasonable and we see no good reason why the permissible use of an assumption should be confined to that stage in the process.
Counsel for the Commission in the present case argued that there was no material "pointing to" the veteran entering the water while conscious. Such reasoning was, I think, central to the Tribunal's decision. However this approach misunderstood the purpose and function of s 120(3), as expounded in the authorities.
The applicant has therefore succeeded in establishing error of law in the two respects I have identified. Much of the Commission's argument before me was directed towards showing that the applicant's case did no more than complain of error of fact. I do not agree. For the reasons already mentioned, the Tribunal's reasoning process discloses errors of law. But in any event, in my view a finding that the whole of the material did not raise a reasonable hypothesis connecting the veteran's death with his war-caused condition would be a finding so unreasonable that no reasonable decision-maker could make it.
Orders
Appeals to this Court from the decision of the Tribunal are governed by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Sub-sections 4(4) and (5) provide:
The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks fit or appropriate by reason of its decision.
Without limiting by implication the generality of sub-section (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.
Counsel for the Commission argued that the matter should be remitted to the Tribunal because, he said, a question of fact remained, namely whether the hypothesis was "too remote" or "too tenuous" to be considered as reasonable.
I think such a course would be quite inappropriate. The Commission has always accepted that, if s 120(3) were satisfied, it would not seek to make out a case under s 120(1). Before the Tribunal the Commission called evidence and advanced argument in support of the proposition that the hypotheses sought to be raised by the applicant were not reasonable. The expressions "too remote" or "too tenuous" are not statutory criteria or terms of art, but merely words which have been used by the Courts in expounding the concept of reasonable hypothesis: see East (1987) 16 FCR at 532. In the same way, it can be said that a hypothesis is not reasonable if it is "irrational, absurd or ridiculous" (Repatriation Commission v Webb (1987) 76 ALR 131 at 135, cited in Bushell (1992) 175 CLR at 428). That does not mean that the Tribunal has to make findings of fact as to the irrationality, absurdity or ridiculousness of a claimant's hypothesis.
Whether or not counsel for the Commission before the Tribunal specifically addressed arguments in terms of remoteness or tenuousness, I do not know. If he did not, it was presumably a
matter of an advocate's tactical and professional judgment. I do not see how such omission could have been due to the lack of any evidentiary foundation, being a lack which might be remedied if the matter were remitted for further hearing.
I note that the Full Court in Lowerson did not remit the matter to the Tribunal, having found that there was "no fact finding task left for the Tribunal to perform" (at 271). In Cooke the Full Court made a similar order as to some of the conditions in question. See also Repatriation Commission v Jenkins (unreported, Foster, Lindgren and North JJ, 26 March 1977).
In view of the history of this matter, it is somewhat surprising that the Commission urged remission to the Tribunal. The veteran disappeared in 1983, his death was confirmed at the end of 1984, and his widow first claimed a pension on 6 January 1987. The claim was refused by the Commission on 9 February 1987 and the refusal affirmed by the Veterans' Review Board on 11 February 1988. On that day a Senior Member of the Board wrote to the applicant advising her of its decision. The letter did not, as was required by law, enclose a notice setting out her rights of review and sources of possible legal or financial assistance. On 24 April 1988 the applicant wrote a letter acknowledging receipt of the Board's letter and indicating a desire to appeal to the Tribunal. The letter, although obviously not written with a lawyer's assistance, set out in reasoned detail the applicant's complaints as to the Board's decision.
The applicant's letter was sent to the Department, not the Tribunal. The Department sent the applicant an acknowledgment card on 27 April 1988 advising that her letter was "receiving attention". But nothing further happened until four years later when, on 4 May 1992, the applicant wrote to the Department enquiring as to progress, confirming her desire to appeal, and concluding "Please direct this to the right department". The Department then located the applicant's letter of 24 April 1988 in its Archives Section and advised the Commission. On 5 June 1992 the Commission sent the applicant's 1988 letter to the Tribunal and wrote to her asking that she accept their apologies for the error and assuring her that every effort would be made to ensure that there were as few delays as possible in processing her case in future.
On 24 June 1992 the Tribunal, with the consent of the Commission, made an order granting the applicant an extension of time. A mediation conference was fixed for 9 September 1992, but before it could be held there was a change of heart somewhere in the Department. The Department wrote to the Tribunal repeating its acknowledgment of error but stating that there was a jurisdictional issue involved.
The Tribunal conducted a full scale hearing on the jurisdictional issue. Counsel were retained on both sides. On 6 October 1994 it handed down a decision holding that it had no jurisdiction to extend time.
The applicant's present claim was lodged on 10 February 1993 and refused by the Commission on 11 November 1994. Refusal was affirmed by the Veterans' Review Board on 14 August 1995 and that decision affirmed by the Tribunal in the decision now under review on 15 May 1996.
One can only view with dismay the way the Australian Administration has dealt with the claim of this widow. In July 1940, as a young man of 23, the late Mr Bennett volunteered in the AIF for service in the Middle East. If he had responded to his country's call with the same speed that the Australian government was later to display in dealing with his widow's claim, he would have missed World War II and probably been too late for Korea.
The order of the Court will be:
The appeal be allowed.
The decision of the Administrative Appeals Tribunal made on 15 May 1966 be set aside and that in lieu thereof there be substituted the following:
(a)a declaration that the veteran's death was war-caused within the meaning of s 8 of the Veterans' Entitlements Act 1986 (Cth);
(b)that the respondent pay to the applicant a Widows Pension pursuant to the Act with effect from 10 November 1992;
The applicant's costs of the appeal including reserved costs be paid by the respondent.
I certify that this and the preceding eighteen (18) pages are a true copy of the reasons for judgment of the Honourable Justice Heerey.
Dated:
Associate
Appearances
Counsel for the applicant: Mr T P Keely
Solicitor for the applicant: John W Ball & Sons
Counsel for the respondent: Mr P J Hanks
Solicitor for the respondent: Australian Government
Solicitor
Date of hearing: 1 - 2 May 1997
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