VETERANS’ ENTITLEMENTS – appeal from Administrative Appeals Tribunal – nature of appeal pursuant to s 44(1) of Administrative Appeals Tribunal Act 1975 (Cth) – appeals on a question of law – review under s 5 of the ADJR Act – whether the Tribunal misunderstood evidence – ‘kind of death’ of veteran under Veterans’ Entitlements Act 1986 (Cth) –whether denial of procedural fairness by Tribunal in not accepting a submission put to it jointly by the parties
1.Leave to further amend the amended notice of appeal be refused.
2.The appeal be dismissed.
3.The applicant pay the respondent’s costs.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 885 of 2006
BETWEEN:
EVE BROWN APPLICANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGE:
BRANSON J
DATE:
19 JULY 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
Mr Robert Brown served in the Australian Army between 1 October 1941 and 20 July 1943. From 21 July 1943 to 17 January 1946 he served in the Royal Australian Air Force. He is taken to have been rendering operational service during each of the above periods (s 6A of the Veterans’ Entitlements Act 1986 (Cth) (‘the Veterans’ Entitlements Act’)).
Mr Brown died on 29 June 2003 aged 82. The applicant is his widow. She claimed a war widow’s pension asserting that her husband’s death arose out of, or was attributable to, his war service. The bases of her assertions were that his habit of smoking was war-caused and that his smoking contributed to his death through ischaemic heart disease.
Mr Brown’s death certificate records in the space provided for ‘Cause of Death and Duration of last illness’:
‘(I) (a) Cardiorespiratory exhaustion, 1 week
(b)Progressive non-Hodgkin’s lymphoma, 9 months
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Brown v Repatriation Commission [2006] FCA 914
Case
[2006] FCA 914
Decision Date
CaseChat Overview and Summary
In the matter of Brown v Repatriation Commission, the Federal Court of Australia was tasked with reviewing the decision of the Administrative Appeals Tribunal (AAT). Mrs Brown, the applicant, sought to appeal the AAT's decision, which dealt with the classification of her late husband's cause of death for the purposes of a benefit claim. The crux of the case involved whether the Tribunal correctly interpreted the medical evidence regarding Mr Brown's cause of death, specifically whether sepsis was a complication of his non-Hodgkin’s lymphoma and its treatment.
The legal issues before the court encompassed whether the Tribunal had accurately understood and applied the medical evidence presented by Dr Edwards, and if there was any procedural unfairness in the Tribunal's handling of the case. Mrs Brown argued that the Tribunal misconstrued Dr Edwards’ evidence, particularly regarding the role of sepsis and ischaemic heart disease in Mr Brown’s death. Furthermore, she contended that the Tribunal did not afford her procedural fairness.
In its deliberation, the court found that the Tribunal had correctly interpreted Dr Edwards’ evidence, which indicated that Mr Brown's death was primarily due to overwhelming sepsis, a complication of his lymphoma and its treatment. The court noted that Dr Edwards did not believe ischaemic heart disease played a significant role in accelerating Mr Brown’s death. Additionally, the court rejected Mrs Brown's claim of procedural unfairness, stating that the Tribunal had adequately considered the evidence and applied the law correctly.
Ultimately, the court dismissed Mrs Brown's appeal, ruling that the Tribunal's decision was sound and that the application for further amendment of the notice of appeal was unfounded. The court ordered that Mrs Brown pay the respondent's costs, reinforcing the view that her appeal lacked merit.
Orders
Orders of the court
1. Leave to further amend the amended notice of appeal be refused.
2. The appeal be dismissed.
3. The applicant pay the respondent’s costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
I therefore turn to consider the merit of the complaints made by Mrs Brown about the decision of the Tribunal.DID THE TRIBUNAL MISUNDERSTAND DR EDWARDS’ EVIDENCE? Dr Edwards provided a written report on the circumstances surrounding Mr Brown’s death. In his report Dr Edwards expressed the opinion that Mr Brown’s terminal illness was due to sepsis originating in his lungs and urinary tract. He stated that Mr Brown’s non-Hodgkin’s lymphoma had reduced his ability to fight infection and the treatment for that illness similarly compromised his immune state. In oral evidence before the Tribunal Dr Edwards said:‘the final cause of death was the pneumonic process, the pneumonia, the infection. The underlying cause of death was the rapidly progressive malignant disease.’ Dr Edwards also gave oral evidence that he did not think that ischaemic heart disease played a ‘big part’ in Mr Brown’s death. He observed:‘In fact we had good evidence that his cardiologist was very happy with his cardiac state and that the malignant process supervened.’ In its written reasons for decision the Tribunal accurately recorded that it was Dr Edwards’ opinion that Mr Brown died of overwhelming sepsis, that non-Hodgkin’s lymphoma had reduced Mr Brown’s ability to fight infection and that treatment for that illness had similarly compromised his immune state (see [17]). The Tribunal also noted that Dr Edwards’ position could be summarised in terms of the evidence given by him which is identified in [18] above. The Tribunal summarised its understanding of Dr Edwards’ evidence, and the conclusions to be derived therefrom, in the following passage from its reasons for decision:‘As we understand Dr Edwards’s evidence, the pneumonic infection was a complication of the non-Hodgkin’s lymphoma and its treatment. This is not a case of multiple “kinds of death”. Accordingly, we find that the kind of death suffered by Mr Brown was “non-Hodgkin’s lymphoma”. This is in accord with the clinical decision of the palliative care team taken three days before Mr Brown died, that his condition was incurable.’ Mrs Brown, by her counsel, submitted that Dr Edwards’ evidence was not to the effect that the sepsis was a complication of the lymphoma alone. In support of this submission counsel drew attention to certain answers given by Dr Edwards in cross-examination. During his cross-examination Dr Edwards said that ischaemic heart disease was a significant underlying disease process that Mr Brown had. He agreed that he might have included ischaemic heart disease in part 2 of a death certificate for Mr Brown; that is, in the section of the certificate which Dr Edwards described as appropriate for recording ‘contributing factors, factors that might be in the background, present for many years’. He contrasted factors of that kind with ‘causes of death’. Dr Edwards was not asked in cross-examination, or it seems at any time, to express an opinion on whether, because of his ischaemic heart disease, Mr Brown died from pneumonia earlier than would otherwise have been the case. Nor was Dr Edwards asked to express an opinion on whether ischaemic heart disease otherwise accelerated Mr Brown’s death. In the absence of answers from Dr Edwards on these questions, it is to be inferred from the answer recorded in [19] above, that Dr Edwards did not think that ischaemic heart disease accelerated Mr Brown’s death.
Decision
Reasons for decision
BRANSON J
Mrs Brown was not denied procedural fairness by the Tribunal in the way alleged in paragraph 2.3 of the amended notice of appeal or at all.CONCLUSION As I am satisfied that any application made by Mrs Brown for review of the decision of the Tribunal pursuant to the ADJR Act would fail, the appropriate course is to reject the application to further amend the amended notice of appeal. I do so. I therefore turn to the appeal under s 44(1) of the AAT Act. As mentioned above, neither paragraph 2.1 nor 2.2 of the amended notice of appeal identifies a question of law within the meaning of s 44(1) of the Act. In any event, the complaints thereby made of the decision of the Tribunal are without merit. As stated earlier, the question in paragraph 2.3 contains within it a false assumption, namely that the AAT is obliged to accept a submission advanced jointly by the parties to a dispute. In any event, I am satisfied that Mrs Brown was not denied procedural fairness by the Tribunal. The appeal from the decision of the Tribunal will be dismissed with costs.