Cassin, Helena May v Coats, John Brendan

[1981] FCA 148

Re: HELENA MAY CASSIN and JAMES WELLS as Executrix and Executor of the Will of
DANIEL JOHN CASSIN deceased
And: JOHN BRENDAN COATS; WILLIAM KENT O'BRIEN and LESLIE PHENNA together
comprising a REPATRIATION BOARD
WAG No. 10 of 1981
Administrative law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.

CATCHWORDS

Administrative law - judicial review of decision of Repatriation Board - refusal of pension for incapacity - claim continued by personal representatives on death - whether Repatriation Board failed to apply correctly principles in Repatriation Commission v. Law (1980) 31 ALR 140 - relevance of pending judgment by High Court in Law's case - appropriate directions to Board.

Administrative Decisions (Judicial Review) Act 1977 s.10(2)(b)(ii)

Repatriation Act 1920 ss. 24A, 26, 28

HEARING

DARWIN

#DATE 10:9:1981

JUDGE1

This is an application under the Administrative Decisions (Judicial Review) Act 1977 to review the decision of the respondents, a Repatriation Board, upon a claim for a pension under the Repatriation Act 1920.

Daniel John Cassin had claimed a pension for incapacity arising out of or attributable to his war service. Before that claim had been determined, Mr. Cassin died. In those circumstances, s.24A of the Repatriation Act provides that the legal personal representative of the claimant or a person approved by the Commission may pursue the claim and shall be treated as if he were the claimant. Pursuant to that provision the present applicants, Helena May Cassin and James Wells, became the claimants. The decision under challenge was concerned only with such claim as Mr. Cassin might have had if he had survived. Any claim by his dependants is separate and, I understand, not yet the subject of any determination.

In accordance with procedures laid down in the Repatriation Act, the claim was submitted to a Repatriation Board for consideration and determination. The Board refused the claim. Pursuant to s.28 of the Act, the applicants lodged notice of appeal to the Repatriation Commission from that determination. In a judgment delivered on 20 May 1981, I declined to exercise the power conferred by s.10(2)(b)(ii) of the Judicial Review Act to refuse to grant an application if adequate provision is made elsewhere for a review of the decision under attack. This had the effect of allowing the present application to proceed.

This application was argued by counsel immediately following the conclusion of their argument in an application by Mrs. Mona Olive Kelly against the same Repatriation Board (W.A.G. No. 9 of 1981). I agreed to counsel adopting, in these proceedings, the submissions made in the course of the earlier hearing. Likewise I propose to adopt my reasons for decision in that application, which I have just delivered, to the extent that they are relevant to the present application.

For the reasons there given, I do not propose to adjourn this application. There is one factual difference between this application and Mrs. Kelly's. Counsel for the respondents said, in regard to the present application, that an appeal having been lodged from the determination of the Board to the Repatriation Commission, "the delegate has requested the provision of certain extra medical evidence which is in the process, I understand, of being gathered, and he will then take the matter further. I cannot tell the court any more about it than that." (transcript p.14) In my opinion this is not sufficient reason for declining to deal with the application now. It was not suggested that any action taken by the delegate was at the instance of the applicants and it is clear that they wish to have the matter resolved, so far as it is capable of resolution, through the procedures of the Judicial Review Act.

The applicants' challenge to the decision of the Board invokes the same grounds as were invoked by Mrs. Kelly. And as in that case, the challenge is based principally on the Board's alleged failure to apply correctly the principles enunciated by the Federal Court in Repatriation Commission v. Law (1980) 31 A.L.R. 140. I adopt my discussion of that decision in my earlier reasons for judgment. In the applicants' submission, on the material before the Board it must be said that Mr. Cassin's incapacity might have arisen out of his war service and might be attributable to it. Therefore a pension could not be refused unless it was proved beyond reasonable doubt that his incapacity was not related to war service. In their argument, the respondents have failed to apply this approach and therefore the decision cannot stand.

Mr. Cassin lodged a claim for acceptance of hiatus hernia, ulcers and shortness of breath as conditions arising out of or attributable to his war service. After medical investigation, his condition was diagnosed as hiatus hernia with reflux oesophagitis, peptic ulcers and liver dysfunction. In the opinion of the departmental medical officer, the hiatus hernia with reflux oesophagitis was probably due to the effects of alcohol or a congenital defect. In his further opinion, the peptic ulcers and liver dysfunction were probably due to consumption of alcohol. The medical officer's report ended with these words:

"There is no evidence that the circumstances impelled him towards heavy drinking, but, under active service conditions, there were many who did behave in this way. Certainly the possibility is a real one."

The Board considered the medical officer's opinion along with other evidence, the precise details of which do not appear from the Board's determination nor did they emerge during the course of the hearing. The Board concluded:

". . . there could be many reasons why the member may have drunk heavily enough during thirty post war years to cause his gastro-intestinal disabilities and, in the absence of any symptoms in the first half of that post service period, it seems most unlikely that any condition of service was the cause of his drinking habit. In the light of the evidence, the Board is satisfied, beyond reasonable doubt, that there are insufficient grounds for allowing the claim."

The applicants have criticised the way in which the Board dealt with the material before it. A reading of the determination suggests that the Board approached the matter as if the onus of proof lay upon the applicants and as if the matter was one to be resolved by a weighing of the evidence. As I said in the course of my reasons in connection with Mrs. Kelly's application:

"Naturally the Board must have before it some evidence but so long as that evidence warrants a conclusion that (the incapacity) might have arisen out of war service or might be attributable to it, a pension must be granted unless the Board is satisfied beyond reasonable doubt that (the incapacity) was not related to war service."

In my view the Board's determination cannot stand in the light of the reasons of the Full Court in Law's case. The matter must go back to the Board for further consideration. As in Mrs. Kelly's case, I am not prepared to give a direction that the Board should grant the claim. As in that case, I do not have before me all the material available to the Board. The Board may acquire further information by exercising the powers given to it by s.26 of the Repatriation Act. The claim has not been through the review machinery which the Act offers and it does not come before this Court by way of appeal. Again as I said in Mrs. Kelly's case,

"Nor is the outcome so inevitable that the Board should be deprived of the opportunity to reconsider the matter".

I shall hear counsel on the terms of the formal order but my decision is:

1. The determination of the Board upon the applicants' claim be quashed.

1. The matter be referred to the Board for further consideration in the light of the decision in Repatriation Commission v. Law (1980) 31 A.L.R. 140, in particular the principles expressed in the following paragraph from the judgment of the Court at p.152.

"Where the (incapacity) of an erstwhile member of the forces might have arisen out of war service or might be attributable to it, a pension cannot be refused unless it is proved beyond reasonable doubt that his (incapacity) was not so related to his war service. The scheme of the Act is not to establish an adversary method determining claims and applications, but to have the Department make the relevant investigations and then to require that, if there is some evidence that the claimant is eligible to receive a pension, a pension be paid unless the investigations or the course of the proceedings throw up information which establishes beyond reasonable doubt that a pension is not payable."