Borrett v Repatriation Commission

Case [2000] FCA 1829

FEDERAL COURT OF AUSTRALIA

Borrett v Repatriation Commission [2000] FCA 1829

ADMINISTRATIVE LAW – Repatriation Commission – whether the AAT erred in holding the applicant’s husband’s death was not war-caused – whether the AAT made factual findings as to causation rather than deciding whether a reasonable hypothesis was raised on the evidence – where the AAT held there was no reasonable hypothesis connecting the death and the war service – where the AAT was satisfied beyond reasonable doubt that the death was not war-caused

Veterans’ Entitlements Act 1986 ss 120 & 120A

Byrnes v Repatriation Commission (1993) 177 CLR 564 followed
Repatriation Commission v Deledio (1998) 83 FCR 82 followed
Repatriation Commission v Bey (1977) 79 FCR 364 distinguished
Bushell v Repatriation Commission (1992) 175 CLR 408 followed
Dixon v Repatriation Commission (1999) 29 AAR 235 followed

MARGUERITE BORRETT v REPATRIATION COMMISSION
N 743 OF 2000

TAMBERLIN J
SYDNEY
15 DECEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N743 OF 2000

BETWEEN:

MARGUERITE BORRETT
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

TAMBERLIN J

DATE OF ORDER:

15 DECEMBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application for review is upheld.

2.        The decision of the AAT is set aside.

3.        The matter is remitted to the AAT for determination in accordance with law.

4.        The respondent is to pay the applicant’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N743 OF 2000

BETWEEN:

MARGUERITE BORRETT
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

TAMBERLIN J

DATE:

15 DECEMBER 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. The applicant, Marguerite Florence Borrett, is the widow of John Borrett (“the veteran”).  The veteran was born on 23 December 1915 and the applicant on 9 June 1919.  The applicant and the veteran married on 20 November 1942.

  2. The veteran served in the RAAF during the Second World War.  The whole period of his service (from 25 April 1942 to 8 January 1946) constituted operational service under the Veterans’ Entitlements Act 1986 (“the Act”).  During his war service the veteran was seconded to the Royal Canadian Air Force (“RCAF”) from 11 December 1942 to 4 November 1943 during which time he attempted a pilots’ course.  He was unsuccessful in qualifying due to illness and returned to Australia.  He later served in the Pacific area.

  3. The veteran died on 6 February 1972 aged 56 and the cause of death was certified as being terminal carcinoma (three years, six months) and cancer of the large colon.  Although the death certificate certified colon cancer as a cause of death, the clinical evidence was that the veteran had suffered cancer of the rectum.

  4. On 19 February 1998 the applicant lodged a claim with the Repatriation Commission (“the Commission”) for a widows’ pension pursuant to the Act. This claim was refused by the Commission on 24 February 1998 and on review by the Veterans’ Review…

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Details
AGLC
Borrett v Repatriation Commission [2000] FCA 1829
Case
[2000] FCA 1829
Decision Date

CaseChat Overview and Summary

The case of Borrett v Repatriation Commission was brought before the court to review a decision made by the Administrative Appeals Tribunal (AAT). The applicant argued that the veteran's drinking habit, which originated from his war service in Canada, contributed to his rectal cancer. The dispute centred around whether this hypothesis was reasonable and consistent with the statutory framework governing such claims. The court was required to determine whether the hypothesis proposed by the applicant was reasonable under the relevant legislation and whether the AAT had properly applied the legal principles in its decision-making process.

The legal issues in this case revolved around the interpretation and application of the statutory provisions concerning war-service related claims, specifically sections 120 and 120A of the relevant Act. The primary question was whether the AAT had correctly identified and applied the two-step process as outlined in Byrnes v Repatriation Commission and expanded upon in Repatriation Commission v Deledio. This involved determining whether the hypothesis connecting the veteran's injury with his war service was reasonable, and if the AAT had correctly assessed the facts to determine if the hypothesis was disproven beyond reasonable doubt.

The court found that the AAT had not properly applied the two-step process as outlined in the previous case law. In particular, the AAT had failed to adequately consider whether the hypothesis proposed by the applicant was reasonable in light of the statutory requirements. The court noted that the AAT had not explicitly considered whether the hypothesis was consistent with the template provided by any applicable Statement of Principles (SoP). This failure to apply the correct legal framework led the court to conclude that the AAT's decision was flawed and needed to be set aside. The matter was remitted to the AAT for redetermination in accordance with the law as articulated by the court.

The final orders of the court were that the application for review was upheld, the decision of the AAT was set aside, and the matter was remitted to the AAT for a fresh determination in accordance with the law. Additionally, the respondent was ordered to pay the applicant's costs. This decision underscores the importance of correctly applying statutory frameworks in administrative law and highlights the need for tribunals to meticulously follow established legal principles in their decision-making processes.

Orders

Orders of the court

1. The application for review is upheld.

2. The decision of the AAT is set aside.

3. The matter is remitted to the AAT for determination in accordance with law.

4. The respondent is to pay the applicant’s costs.

Background

Background to the litigation

In Byrnes v Repatriation Commission (1993) 177 CLR 564 the High Court considered s120 and said at 571:“The position may be summarised as follows: (1) First, sub-s (3) of s.120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with the war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s (1) of s. 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.” (Emphasis added) Section 120A was inserted into the Act after that decision. The Full Federal Court expanded the two step process to take s 120A into account in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92 in the following terms:“1.The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.2.If the material does raise such hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). …3.If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.4.The tribunal must then proceed to consider under 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, … If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.” (Emphasis added)THE AAT’S DECISION The hypothesis contended for by the applicant before the AAT was that the veteran had a drinking habit arising out of his war service which contributed to his rectal cancer; that the veteran drank regularly in order to relax; and that this habit originated as a result of his service in Canada.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

TAMBERLIN J

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Ratio Decidendi

Legal Principle Established

Established by: TAMBERLIN J

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