Downing, M.V. v The Repatriation Commission - [1985] FCA 114

Re: MYRTLE VIOLET DOWNING
And: THE REPATRIATION COMMISSION
No. WA G44 of 1984
Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.

CATCHWORDS

Repatriation - appeal under former s.107VZZH of the Repatriation Act - death of former member of Armed Forces from carcinoma - refusal by Repatriation Review to grant applicant's claim for a war widow's pension - whether death of member arose out of or was attributable to war service - test to applied by Tribunal - observations concerning the role of Tribunal in accepting or rejecting medical evidence - whether a possibility that death was attributable to war service, when supported by medical evidence, must be destroyed by other medical opinion for the Tribunal to be satisfied beyond reasonable doubt that there are insufficient grounds for the claim

Repatriation Act 1920 ss.47, 101, 107VZZH

Administrative Decisions (Judicial Review) Act 1977 ss.5, 6

HEARING

PERTH
#DATE 27:3:1985

ORDER

1. The appeal be dismissed.

2. Liberty to apply on the question of costs.

JUDGE1

The applicant's husband, a member of the Forces within the meaning of the Repatriation Act 1920, died on 26 September 1974. On 25 October 1974 the applicant lodged a claim for a pension under the provisions of the Act and that claim was rejected by the Repatriation Board on 21 November 1974. Since that time there has been a bewildering series of appeals and applications for reconsideration. The appeal to this Court is from a decision of the Repatriation Review Tribunal that there were insufficient grounds for granting the applicant's claim for a pension.

Because a number of recent applications to the Court involving the Repatriation Act have been under the provisions of the Administrative Decisions (Judicial Review) Act 1977, it is of some importance to appreciate the difference between such applications and an appeal such as the present one. Jurisdiction under the Judicial Review Act is exercisable on one of the grounds set out in s.5 or s.6 of that Act. Section 107VZZH of the Repatriation Act authorised an appeal to the Federal Court from a decision of the Repatriation Review Tribunal "on a question of law". That section was repealed after the institution of this appeal; no question has arisen as to the entitlement of the applicant to proceed to a hearing of her appeal.
The questions of law have been identified in the notice of appeal as questions whether the Tribunal "could" on the evidence before it make certain findings, in particular a finding that there were insufficient grounds for granting the applicant's claim. The respondent did not contend that the appeal was not on a question of law and, as the grounds of appeal were formulated and argued, I am satisfied that the Court has jurisdiction to entertain the appeal.
It is unnecessary to trace the chain of appellate and review steps taken by the applicant before the matter reached the Repatriation Review Tribunal. It is enough to note that the Tribunal's decision, which was…

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.

Continue reading Downing, M.V. v The Repatriation Commission

Details

AGLC: Downing, M.V. v. The Repatriation Commission [1985] FCA 114
Case: [1985] FCA 114
Decision Date: 27 MARCH 1985

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Downing, M.V. v The Repatriation Commission was heard, involving the applicant who sought a war widow's pension following the death of her husband, a former member of the Armed Forces. The husband's death was attributed to carcinoma, and the applicant contested the Repatriation Review's refusal to grant the pension. The central legal issue was whether the death was attributable to war service and if the Tribunal's test was correctly applied in assessing this question. The court needed to determine the standard for rejecting a claim when medical evidence supports a connection to war service and whether a mere possibility of such a connection, if medically supported, must be negated by opposing medical opinion for the Tribunal to be satisfied beyond reasonable doubt.

The court examined the criteria and approach used by the Repatriation Review in assessing the claim, particularly focusing on the role of medical evidence. It scrutinised the Tribunal's requirement for the applicant to establish beyond reasonable doubt that the death arose out of or was attributable to war service. The court highlighted that the Tribunal must consider the evidence holistically and must not dismiss a possibility supported by medical evidence without substantial counter-evidence. The court's analysis underscored that the Tribunal's satisfaction beyond reasonable doubt should be balanced with the need to consider all relevant evidence, including the possibility of a connection to war service.

After considering the evidence and arguments, the court found that the Tribunal's decision was correctly made within its legal framework. The applicant's evidence, while supported by medical opinion, did not meet the threshold required to establish a connection to war service beyond reasonable doubt. Consequently, the appeal was dismissed, and the applicant was granted liberty to apply regarding the question of costs. The court's decision reinforced the necessity for a stringent evaluation of claims for war-related pensions, ensuring that the Tribunal's decisions are both evidence-based and legally sound.

Orders

Orders of the court

1. The appeal be dismissed.

2. Liberty to apply on the question of costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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