Clarke and Repatriation Commission (Veterans' entitlements) - [2018] AATA 2246

Clarke and Repatriation Commission (Veterans' entitlements) [2018] AATA 2246 (13 July 2018)
Division:VETERANS' APPEALS DIVISION
File Number: 2017/3094
Re:Heather Clarke
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:13 July 2018
Place:Brisbane

The Tribunal affirms the decision under review.
..........................[Sgd]..............................................
Deputy President J Sosso
CATCHWORDS
VETERANS’ ENTITLEMENTS – war widow pension – service in Malaya and Thailand - Deledio test – Statement of Principles No. 37 of 2013 – where veteran died of malignant neoplasm of the colorectum – whether the veteran’s smoking habit increased during his operational service – whether his increase in smoking habit was connected to his rendering of operational service.
LEGISLATION
Veterans’ Entitlements Act 1986
CASES
Bassett and Repatriation Commission [2002] AATA 531
Collins v Repatriation Commission (2009) 177 FCR 280
Creaney and Repatriation Commission [2005] AATA 177
Deledio v Repatriation Commission (1997) 47 ALD 261
Dunn v Rehabilitation Commission [2006] FCA 1703
Forrester v Repatriation Commission [2013] FCA 898
Hill v Repatriation Commission (2005) 85 ALD 1
Kattenberg v Repatriation Commission [2002] FCA 412
King v Repatriation Commission [2011] FCA 1436
Repatriation Commission v Codd [2007] FCA 877
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Tuite (1993) 39 FCR 540
Roncevich v Repatriation Commission (2005) 222 CLR 115
SECONDARY MATERIALS
Statement of Principles concerning malignant neoplasm of the colorectum No. 37 of 2013
REASONS FOR DECISION
Deputy President J Sosso
13 July 2018
INTRODUCTION

This is an application brought by Mrs Heather Clarke (the Applicant), the widow of Mr Arthur Edward Clarke (the veteran), who is seeking a war widow’s pension under the Veterans’ Entitlements Act 1988 (the Act).
The veteran passed away in 2015 aged 80 years, and the stated cause of death in his Death Certificate was metastatic colon cancer – Exhibit 1 T5 p. 20.
Attached to the Applicant’s claim for a widow’s pension was a document headed “Record of evidence” in which she stated her belief as to the ultimate cause of the veteran contracting colon cancer – Exhibit 1 T7 p. 37:
“(I) believe that my husband Arthur Edward Clarke started smoking regularly when he joined the RAAF. I believe that this habit contributed to the conditions that caused his death. Therefore I believe that his death was related to his war service.”
The veteran served in the Royal Australian Air Force (RAAF) from 1952 until 1967. He was only 16 years of age when he enlisted and after completing his apprenticeship training at RAAF Wagga was mustered as an electrical fitter from 10 December 1954. Subsequently, the veteran was posted to RAAF Amberley, RAAF Edinburgh and RAAF Williamtown – Exhibit 5.
Both the Applicant and the veteran were from Brisbane and their respective families lived in Brisbane.
The Applicant first met the veteran in 1956 and subsequently formed a long-distance relationship when the veteran was posted interstate. The Applicant and veteran only met thereafter when he returned to Brisbane during periods of leave – Exhibit 2 paras 1, 5.

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

Case: [2018] AATA 2246
Decision Date: 13 July 2018

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, the war widow of a deceased veteran, against a decision of the Administrative Appeals Tribunal. The veteran had served in Malaya and Thailand between December 1960 and March 1963 and died in December 2015 from metastatic colon cancer. The applicant sought a war widow's pension, alleging that the veteran's increased smoking habit during his operational service led to his fatal illness.

The primary legal issue before the court was whether the Administrative Appeals Tribunal had correctly applied the "Deledio methodology" in assessing the applicant's claim for a war widow's pension. This involved determining whether the veteran's death from malignant neoplasm of the colorectum was sufficiently linked to his operational service, specifically through an alleged increase in his smoking habit during that service. The court was required to consider the antecedent inquiries necessary before applying the relevant legislative provisions and the specific steps outlined in the Deledio principles.

The court affirmed the principles established in *Collins v Repatriation Commission*, which require antecedent inquiries to be satisfied before applying the Deledio methodology. These include establishing that the claimant is a veteran or dependant, that the veteran suffered an injury or disease or died, and the cause or "kind of death." While these preliminary matters were not disputed, the court found that the Administrative Appeals Tribunal erred in its application of the third step of the Deledio methodology. This step requires the Tribunal to form an opinion on whether the hypothesis raised by the applicant is reasonable and consistent with the relevant Statement of Principles. The court concluded that the Tribunal had not satisfied this step, and therefore, it was unnecessary to proceed to the fourth step.

Consequently, the decision under review, which affirmed the rejection of the claim, was affirmed by the court.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Having determined that that Step three cannot be satisfied, it is not necessary to deal with the fourth step.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

There are antecedent inquiries required of the Tribunal before applying the Deledio methodology which were explained by the Full Federal Court in Collins v Repatriation Commission (2009) 177 FCR 280 as follows (284 – 285):“It is common ground that there are necessarily antecedent inquiries before applying ss 120 and 120A as explained by the ‘Deledio principles’. They are:1. whether the claimant was a veteran, or a dependant of a deceased veteran;2. whether the veteran has suffered an injury or disease or has died..; and3. the cause of death or the ‘kind of death’ of the veteran..these matters are to be determined on the balance of probabilities, or to the reasonable satisfaction of the decision-maker…”CONSIDERATIONPreliminary Issues As explained in Collins it is necessary to deal with certain antecedent threshold issues. It is not contested that the Applicant is the widow of the veteran who rendered operational service in both Malaya and Thailand in the period December 1960 to March 1963. It is also not contested that the veteran died in December 2015 and that his Death Certificate lists his cause of death as metastatic colon cancer. However, the cause of death for the purposes of ss 120 and 120A requires an inquiry into the ‘kind of death’ suffered by the veteran – s 120A(4): see Repatriation Commission v Codd [2007] FCA 877. It was not disputed that the relevant kind of death in this matter is malignant neoplasm of the colorectum – Applicant’s Statement of Facts and Contentions para 10.Deledio Methodology – First Step The first step of the Deledio methodology is aimed at ensuring the proper application of s 120(3). At this initial stage the Tribunal does not engage in a fact finding exercise. The Tribunal is only required to be reasonably satisfied that the hypothesis raised has some support in the material, and that the material points to, and does not merely leave open the hypothesis being relied upon – Forrester v Repatriation Commission [2013] FCA 898 at [14]. Moreover, as Mortimer J pointed out in Forrester (at [30]), whether that material points to or supports a hypothesis can be determined by inference or assumption. In this matter the hypothesis raised by the Applicant is that links the veteran’s death with his operational service is as follows (Applicant’s Statement of Facts and Contentions para 6):(a)as a result of stressful operational service, the veteran increased his smoking habit;(b)this increased smoking led to the veteran developing metastatic colon cancer which caused his death. It was not contested by the Respondent (Statement of Facts, Issues and Contentions of the Respondent para 56) that Step 1 is met.Second Step It is not contested that there is an SoP in force that is relevant to the hypothesis raised, namely No 37 of 2013 Malignant Neoplasm of the Colorectum (as amended).Third StepIntroduction The third step requires the Tribunal to form an opinion whether the hypothesis raised is a reasonable one. This requires the Tribunal to ascertain if the hypothesis “fits” or is “consistent with” the “template” in SoP 37 of 2013.