Byrne v Repatriation Commission

Case [2007] FCAFC 126

FEDERAL COURT OF AUSTRALIA

Byrne v Repatriation Commission [2007] FCAFC 126

DEFENCE AND WAR – veterans’ entitlements – whether death of war veteran was attributable to eligible war service – where hypothesis connecting the death with the circumstances of the service rendered is accepted as reasonable the AAT must adopt it as a finding unless it is disproved beyond reasonable doubt – possibility that veteran’s coronary artery disease impaired his ability to survive in the water and contributed to drowning was not considered by AAT – AAT erred in law in rejecting hypothesis – appeal allowed – matter remitted to the AAT to reconsider hypothesis   

Administrative Appeals Tribunal Act 1975 (Cth), s 44
Veterans’ Entitlements Act 1986 (Cth), ss 8, 120, 120A, 120B, 196B

Byrne v Repatriation Commission [2006] FCA 1667 reversed
Bull v Repatriation Commission (2001) 188 ALR 756 referred to
Bushell v Repatriation Commission (1992) 175 CLR 408 cited
Byrnes v Repatriation Commission (1993) 177 CLR 564 cited
Collins v Administrative Appeals Tribunal [2007] FCAFC 111 referred to
Repatriation Commission v Codd [2007] FCA 877 referred to
Repatriation Commission v Deledio (1998) 83 FCR 82 referred to
Repatriation Commission v Hancock (2003) 37 AAR 383 referred to
Woodward v Repatriation Commission (2003) 131 FCR 473 referred to

MARJORIE BYRNE v REPATRIATION COMMISSION
NSD 55 OF 2007

GYLES, EDMONDS AND BUCHANAN JJ
13 AUGUST 2007
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 55 OF 2007
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MARJORIE BYRNE
Appellant

AND:

REPATRIATION COMMISSION
Respondent

JUDGES:

GYLES, EDMONDS AND BUCHANAN JJ

DATE OF ORDER:

13 AUGUST 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be allowed. 

2.The orders made on 5 December 2006 in the primary proceeding be set aside.

3.In lieu thereof, the decision of the Administrative Appeals Tribunal be set aside and the matter be remitted to the Tribunal to be heard and determined according to law. 

4.The respondent pay the costs of the appellant of the appeal and of the primary proceeding.

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

NSD 55 OF 2007
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MARJORIE BYRNE
Appellant

AND:

REPATRIATION COMMISSION
Respondent

JUDGES:

GYLES, EDMONDS AND BUCHANAN JJ

DATE:

13 AUGUST 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

GYLES J:

  1. One can only have sympathy for the members of the Administrative Appeals Tribunal (“the Tribunal”) who are called upon to apply ss 120, 120A and 120B of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) as they have been interpreted by the authorities of the High Court and this Court. The reasoning required would confuse most philosophers. The Tribunal was placed in a particularly difficult situation in this case. Mr Byrne, the deceased husband of the appellant, last served in the Australian Army on 26 February 1946.…

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AGLC
Byrne v Repatriation Commission [2007] FCAFC 126
Case
[2007] FCAFC 126
Decision Date

CaseChat Overview and Summary

In the case of Byrne v Repatriation Commission, the central dispute concerned the cause of death of Mr Byrne, a veteran, and whether his coronary artery disease (CAD) or ischaemic heart disease (IHD) contributed to his death. The matter was heard by the Administrative Appeals Tribunal (AAT) and subsequently appealed to the court. The appeal centred on whether the AAT correctly assessed the evidence to conclude that CAD did not impair Mr Byrne's ability to survive in the water and whether CAD contributed to his death. The court was tasked with determining whether the AAT adequately addressed the evidence and if its conclusions were justified.

The legal issues before the court included whether the AAT correctly applied section 120A of the relevant Act in its assessment of the hypothesis that Mr Byrne's CAD impaired his ability to survive in the water. Additionally, the court had to consider whether the AAT's findings were supported by the evidence and if it properly applied the standard of proof required under the Act. The primary issue was whether the AAT erred in its determination that CAD did not contribute to Mr Byrne's death, particularly in light of the evidence presented by Associate Professor Richards regarding cardiac arrest.

The court's reasoning focused on the sufficiency of the AAT's consideration of the evidence, particularly the testimony of Associate Professor Richards. The court found that the AAT's conclusions did not adequately address the possibility that CAD may have impaired Mr Byrne's ability to survive in the water, even if it was not the direct cause of death. The court highlighted that the AAT's rejection of the hypothesis that CAD impaired survival was not sufficiently substantiated by the evidence. The court concluded that the AAT failed to properly address the reasonable hypothesis that CAD could have contributed to Mr Byrne's inability to survive in the water. As a result, the court found that the AAT's decision should be set aside and the matter remitted for reconsideration.

The final orders of the court were that the appeal be allowed, the orders made by the AAT on 5 December 2006 be set aside, and the matter be remitted to the AAT for a new determination according to law. Additionally, the respondent was ordered to pay the costs of the appellant for both the appeal and the primary proceeding.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders made on 5 December 2006 in the primary proceeding be set aside.

3. In lieu thereof, the decision of the Administrative Appeals Tribunal be set aside and the matter be remitted to the Tribunal to be heard and determined according to law.

4. The respondent pay the costs of the appellant of the appeal and of the primary proceeding.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The primary judge’s conclusions about the issue were as follows:‘“[T]he evidence”, as referred to in that paragraph, clearly refers back to the detailed discussion of the evidence earlier in the Tribunal’s reasons. It was that evidence which disproved the hypothesis that Mr Byrne’s ability to survive in the water was impaired by war-caused CAD.ConclusionThere was detailed consideration of the evidence in the Tribunal’s reasons. The Tribunal cited that evidence as the basis for its conclusion. The reasons explain how and why the Tribunal came to its conclusion. It rejected the premises on which the hypothesis of CAD as a cause of death was based. Once those premises were rejected, the hypothesis that CAD impaired Mr Byrne’s ability to survive once in the water could not stand. In context, it cannot be said that the Tribunal failed to give reasons for its satisfaction, beyond reasonable doubt, that the cause of death was drowning, to which CAD made no contribution.’(emphasis added) The contention to which para 66 was directed was that Mr Byrnes death was due directly to a ‘cardiac event’ arising from his coronary artery disease. For reasons which will become apparent I am not able to share the primary judge’s view, nor that of the AAT, that disposition of the contention that Mr Byrne had suffered a heart attack inevitably provided a foundation for the rejection, beyond reasonable doubt, of hypothesis 3, namely, that coronary artery disease may have impaired Mr Byrne’s ability to survive once in the water even though not the direct cause of his death. The passage set out above from para 66 of the AAT’s reasons, which the respondent advances to support both the AAT’s findings and the primary judge’s conclusions, seems clearly to be a reference to evidence given by Associate Professor Richards which the AAT had earlier summarised in this way (at para 48):‘48. Reports from Associate Professor Richards were in evidence and he gave concurrent oral evidence with Professor O’Rourke. Both are cardiologists. Associate Professor Richards stated that the eye-witness accounts that Mr Byrne made little or no attempt to swim was because of “cardiac arrest and death before he finally slipped from the upturned boat”. That there was no water in his lungs, together with the evidence of the witnesses, strongly supports arrhythmia. Cardiac arrest may have been due “to primary ventricular fibrillation associated with sudden immersion, or may have been due to ventricular fibrillation or asystole secondary to myocardial ischaemia due to coronary arterial spasm or thrombotic coronary arterial occlusion”.We understand this latter possibility to be what the doctor also expressed in simpler terms as a non obstructive lesion may have ruptured and caused a blockage.’(emphasis added) Associate Professor Richards’ explanations, which were rejected by the AAT on the balance of probabilities in para 66, related to his opinion that Mr Byrne had suffered a cardiac arrest and died from that cause. They were not directed to consideration of an alternate possibility of death by drowning. I find myself therefore unable to agree that para 66 provides a sufficient foundation or explanation for the conclusion expressed in para 93 that ‘neither IHD or CAD contributed to his death’ in the sense raised by hypothesis 3 that coronary artery disease ‘impaired Mr Byrne’s ability to survive once he was in the water’. By contrast to its firm finding in para 92 that Mr Byrne did not suffer from ischaemic heart disease the AAT accepted that Mr Byrne had coronary artery disease. It made no finding (on any standard of proof) that his coronary artery disease was not related to war service. Its conclusion had to accommodate that as an accepted fact.

Decision

Reasons for decision

GYLES, EDMONDS AND BUCHANAN JJ (dissent)
The observations of Brennan J are also pertinent to the present case. His Honour said (at 427):‘However, in a case where a causal connexion between the circumstances of operational service and a veteran’s morbid condition is a matter of hypothesis only, the raising of a reasonable hypothesis by the evidence not only precludes the operation of sub-s. (3) but also will generally preclude a determination under sub-s. (1) that there is no causal connexion. In such a case, where a decision-maker makes a determination under sub-s. (1) on the same material as that which led to a conclusion under sub-s. (3) that there is a “reasonable hypothesis” of connexion, it would be impossible to conclude beyond reasonable doubt that there is no causal connexion. Before a negative conclusion could be reached, the decision-maker would have to be satisfied beyond reasonable doubt of the existence of some further fact which destroys the applicability of the reasonable hypothesis of causal connexion.’(emphasis added) Section 120(1) and (3) each appears in the Act accompanied by a note that it is affected by s 120A. The first issue which the AAT had to decide was whether s 120A applied. If it did that section gave a further direction as to how any hypothesis was to be assessed. Section 120A(3) and (4) provide:‘(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:(a)a Statement of Principles determined under subsection 196B(2) or (11); or(b)a determination of the Commission under subsection 180A(2);that upholds the hypothesis.(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:(a)the kind of injury suffered by the person; or(b)the kind of disease contracted by the person; or(c)the kind of death met by the person;as the case may be.’ Section 196B provides for the matters to be addressed in a Statement of Principles. Section 196B(1) and (2) (which are relevant for this discussion) provide:‘(1)This section sets out the functions of the Repatriation Medical Authority. The main function of the Authority is to determine Statements of Principles for the purposes of this Act and the MRCA.(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:(a)operational service rendered by veterans; or(b)peacekeeping service rendered by members of Peacekeeping Forces; or(c)hazardous service rendered by members of the Forces; or(ca) warlike or non-warlike service rendered by members;the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:(d)the factors that must as a minimum exist; and(e)which of those factors must be related to service rendered by a person;before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.’

Ratio Decidendi

Legal Principle Established

Established by:

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