FEDERAL COURT OF AUSTRALIA
Cross v Repatriation Commission [2013] FCA 229
Citation: Cross v Repatriation Commission [2013] FCA 229 Appeal from: Cross v Repatriation Commission [2012] AATA 632 Parties: DAPHNE IMELDA CROSS v REPATRIATION COMMISSION File number: NSD 1615 of 2012 Judge: JACOBSON J Date of judgment: 15 March 2013 Catchwords: ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal affirming decision of Veterans’ Review Board – whether smoking habit was “war-caused” – application of s 119(1)(h)(i) Legislation: Veterans’ Entitlements Act 1986 (Cth), ss 8, 13, 119 and 120 Cases cited: Fenner v Repatriation Commission (2005) 218 ALR 122
Kowalski v Repatriation Commission [2010] FCA 409
Mason v Repatriation Commission [2000] FCA 1409
Parnell-Schoneveld v Repatriation Commission [2003] FCA 153
Re Noshirf CJ Rustomjee and Repatriation Commission [1987] AATA 300
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Smith (1987) 15 FCR 327Date of hearing: 12 March 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 40 Counsel for the Applicant: Mr M Vincent Solicitor for the Applicant: Kemp & Co Lawyers Counsel for the Respondent: Miss RM Henderson Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1615 of 2012
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: DAPHNE IMELDA CROSS
ApplicantAND: REPATRIATION COMMISSION
Respondent
JUDGE:
JACOBSON J
DATE OF ORDER:
15 MARCH 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1615 of 2012
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: DAPHNE IMELDA CROSS
ApplicantAND: REPATRIATION COMMISSION
Respondent
JUDGE:
JACOBSON J
DATE:
15 MARCH 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction:
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) constituted by Senior Member AK Britton and Dr Hadia Haikal-Mukhtar under the Veterans’ Entitlements Act 1986 (Cth). The Tribunal affirmed a decision of the Veterans’ Review Board, which in turn affirmed a decision of the Repatriation Commission to refuse the applicant’s claim for a war widow’s pension.
The applicant, Mrs Daphne Cross, is the widow of the late Mr Joseph Cross who died in 2009 at the age of 90 as a result of a gastrointestinal haemorrhage. Mr Cross had a long term smoking habit which contributed to his death but the issue which was determined adversely to Mrs Cross’ claim was whether her husband’s smoking habit was “war-caused” in accordance with s 13 of the Act.
The Tribunal received evidence from three separate sources on the question of whether the necessary causal connection existed. The first was a claim form and answers to a questionnaire provided by Mr Cross before his death. The second was a written report made by Mrs Cross after her husband’s death. The third was a written statement made by Mr Cross’…
Continue reading Cross v Repatriation Commission
Sign in free to access the full text
- AGLC
- Cross v Repatriation Commission [2013] FCA 229
- Case
- [2013] FCA 229
- Decision Date
CaseChat Overview and Summary
The court had to decide if there was a material connection between Mr Cross’s smoking and his service, beyond a mere temporal correlation. The AAT found that while Mr Cross claimed to have started smoking during his service to ease loneliness, his widow and son attributed it to peer pressure and boredom. The court noted that these accounts were inconsistent and insufficient to establish a causal link. The unavailability of Mr Cross, who had passed away, and his wife, who was incapacitated, further complicated the inquiry. The court concluded that without more precise evidence, it could not be reasonably satisfied that Mr Cross’s smoking habit was attributable to his service.
Ultimately, the court upheld the AAT's decision to affirm the Veterans’ Review Board's ruling. The Federal Court dismissed Mr Cross’s appeal, finding no grounds to overturn the decision that his smoking habit was not sufficiently linked to his service to warrant benefits under the Act. The court's order was to dismiss the application, finalising the matter without further appeal.
Orders
Orders of the court
1. The application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The Tribunal’s reasons were succinctly stated in paras [22] – [30] which I will reproduce in full as follows:22. There is no issue that a connection has been raised between smoking and a cause of Mr Cross’s death, gastrointestinal haemorrhage. The issue in dispute is whether Mr Cross’s smoking habit arose out of, or was attributable to, or was contributed to in a material degree by, his service. To be “attributable to” service, it is not necessary that Mr Cross’s service be the sole or dominant cause of the development of his smoking habit (Gilkinson v Repatriation Commission [2011] FCAFC 133). The term “material contribution” imposes an evaluative threshold, below which a causal connection between the service and the factor that lead to disease can be disregarded (Comcare v Canute [2005] FCAFC 262 [68] (reversed on appeal where the point did not arise for consideration: [2006] HCA 47; 226 CLR 535); Knight v Repatriation Commission [2010] FCA 1134 [95]). 23. We are reasonably satisfied that Mr Cross commenced smoking during service. Mr Cross made that claim in the smoking questionnaire, it was corroborated by his wife, and is consistent with the history given on his admission to Manning Base Hospital in 2005. However, as has been authoritatively determined, a temporal connection alone is insufficient to establish a causal connection between smoking and service (see for example Re Repatriation Commission v Tuite [1993] FCA 39 [8]; see also Repatriation Commission v Law [1981] HCA 57; (1981) 147 CLR 635 [26]). 24. In the smoking questionnaire, Mr Cross claimed that, when he left the Army, he was smoking between 30 to 40 cigarettes a day and had been smoking for 18 months. He gave as the reason he started to smoke on a regular basis “to ease my loneliness and it appeared normal to follow others”. Mrs Cross gave a slightly different reason “peer pressure – boredom”. Mr Alwyn Cross thought his father smoked during service: [A]s a way of relaxing and relieving stress throughout his time serving in the army. Also, his smoking was influenced due to the fact that the other men on service smoked.25. We have before us a number of different explanations for why Mr Cross started to smoke during service: to ease loneliness, out of boredom, and to relax and relieve stress. The only common thread in the proffered explanations is that “smoking appeared normal” (as stated by Mr Cross) or peer pressure (as understood by his widow and son). The basis of Mrs Cross and Mr Alwyn Cross’s stated understanding is unknown. 26. The questionnaire is the only direct evidence of the reason or reasons Mr Cross smoked during service. The reasons provided in that document lacked particulars. The hearsay accounts given by Mr Cross’s widow and son, while not contradictory, are inconsistent with the reasons he gave. We are unable to explore the basis of this apparent inconsistency because the veteran is deceased, Mrs Cross is incapacitated and, as advised by her counsel, Mr Alwyn Cross is unable to add anything to the information contained in his statement. 27. It may be the account given by Mr Cross is accurate and the respective accounts given by his widow and son are not. The reverse may also be the case. Alternatively it may be that Mr Cross smoked during service for all of the reasons he, his widow and son proffered, but each failed to properly record their understanding. A further possibility is that any apparent discrepancy is merely a matter of nuance and expression. The difficulty presented by Mr Cross’s untested and unsupported account, coupled with the at least partially inconsistent accounts given by his relatives, is that it is not possible to identify with any degree of confidence the reason or reasons he began smoking during service. 28. We are mindful that in deciding whether there was a causal connection between the development of Mr Cross’s smoking habit and service, that we must have regard to the beneficial nature of the Act together with the fact that we are not bound by the rules of evidence and must take into account any difficulties attributable to the effects of the passage of time, including the unavailability of witnesses (ss 119 (1) (f) & 119 (1) (h)). While each of the explanations proffered are plausible, on the material before us, we cannot be reasonably satisfied that the reasons given by Mr Cross or his family members, were in fact the reason he developed a smoking habit during service. In reaching that conclusion we accept that it is possible that there may be no material difference between what Mr Cross and his widow and son intended to convey by using the terms — “[it] appeared normal” and “peer pressure” — to explain why each understood Mr Cross started to smoke. While possible, we could not be satisfied to the requisite standard that this was the case. 29. The Writeway report relied upon by Mrs Cross states that smoking was commonplace among members of the service and cigarettes were readily available. Those findings are uncontroversial and accepted by us. The report however does not assist us in identifying the reason or reasons Mr Cross developed a smoking habit during service. 30. In the absence of better evidence we are unable to be reasonably satisfied that the connection between Mr Cross’s smoking and service was more than temporal in nature. Accordingly we must affirm the decision under review. Consideration