Doyle and Repatriation Commission (Veterans' entitlements) - [2021] AATA 1023

Doyle and Repatriation Commission (Veterans' entitlements) [2021] AATA 1023 (27 April 2021)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2020/3233
Re:Jennefer Doyle
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:27 April 2021
Place:Brisbane

The reviewable decision is affirmed.
................................[SGD]................................
Deputy President J Sosso
Catchwords
VETERANS' AFFAIRS – Widow's pension – Connection between kind of death and service – Cancer of the prostate – Link between alcohol consumption and service – Deledio methodology – Decision affirmed
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Statement of Principles concerning malignant neoplasm of the prostate No. 53 of 2014 (Cth)
Cases
Elliott v Repatriation Commission (Elliott) (2002) 73 ALD 377
Repatriation Commission v Law (1980) 31 ALR 140
Roncevich v Repatriation Commission (2005) 222 CLR 115
Repatriation Commission v Tuite (1993) 39 FCR 540
Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408
East v Repatriation Commission (1987) 16 FCR 517
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 83 FCR 82
Dunlop v Repatriation Commission [2003] FCAFC 201
Hardman v Repatriation Commission [2005] FCAFC 83
Hill v Repatriation Commission [2005] FCAFC 23
Woodward v Repatriation Commission [2003] FCAFC 160
Repatriation Commission v Hancock [2003] FCA 711
Collins v Repatriation Commission (2009) 177 FCR 280
Forrester v Repatriation Commission [2013] FCA 898
Repatriation Commission v Knight (2012) 202 FCR 451
Bull v Repatriation Commission [2001] FCA 1832
Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 352
Repatriation Commission v Cornelius [2002] FCA 750
Lees v Repatriation Commission (2002) 125 FCR 331
Cairns and Repatriation Commission [2013] AATA 742
Repatriation Commission v Stares (1996) 66 FCR 594
Repatriation Commission v Bey (1997) 79 FCR 364
Cameron v Repatriation Commission [2003] FCA 1323
REASONS FOR DECISION
Deputy President J Sosso
27 April 2021
INTRODUCTION

Mrs Jennefer Doyle (the Applicant) seeks a review of a decision of the Veterans’ Review Board (the Board) of 6 May 2020, which affirmed a decision of the Repatriation Commission (the Respondent) of 17 September 2019 that the death of her husband, William D’Arcy Doyle (the veteran), was not war-caused and that she was, consequently, not entitled to payment of a war widow’s pension under the Veterans’ Entitlements Act 1986 (the Act).
The veteran was born in November 1932 (Exhibit 4 T7 p. 25) and served in the Royal Australian Navy (RAN) between 2 August 1951 and 1 August 1957. During that period, the veteran had 22 days of operational service from 21 September 1956 to 13 October 1956 when he was deployed on HMAS Sydney to the Far Eastern Strategic Reserve – Exhibit 4 T3 p. 21.
The Applicant first met the veteran in December 1965 and began co-habiting with him in 1966 – Transcript (Tr.) 9.2.2021 p. 8. The veteran and the Applicant married in Brisbane on 9 July 1976 – Exhibit 4 T4 p. 22.
In July 1991 the veteran was diagnosed with metastatic cancer, with a bone scan revealing multiple…

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: [2021] AATA 1023
Decision Date: 27 April 2021

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant, the widow of a veteran, against a decision of the Repatriation Commission regarding a widow's pension. The veteran had served on HMAS Sydney between 21 September and 13 October 1956 and died on 28 August 2001 from prostate cancer. The core dispute revolved around whether the veteran's death was "war-caused" for the purposes of the *Veterans' Entitlements Act 1986* (Cth). The case was heard by Deputy President Sosso P.

The legal issues before the Tribunal were whether the veteran's death from prostate cancer was "war-caused" and, if so, whether the conditions for a widow's pension were met. This required the Tribunal to determine the "kind of death" suffered by the veteran and apply the appropriate methodology for assessing the connection between that death and his operational service. Specifically, the Tribunal had to consider the application of Statements of Principles (SoPs) and the methodology outlined in *Deledio*.

The Tribunal applied the *Deledio* methodology, which involves a preliminary assessment of whether a raised hypothesis linking the death to service has some support in the material. The Applicant's hypothesis posited that the veteran's operational service led to alcohol consumption to manage anxiety, which continued post-service and ultimately contributed to his prostate cancer. However, the Tribunal found that this hypothesis was not "reasonable" as it did not fit, or was inconsistent with, the template found in SoP No. 53 of 2014, which was the relevant SoP for malignant neoplasm of the prostate.

Consequently, the Tribunal affirmed the reviewable decision, meaning the Applicant's claim for a widow's pension based on a war-caused death was not successful.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal therefore finds that the Applicant’s raised hypothesis is not a “reasonable” one in that it does not fit, or is inconsistent with, the template found in SoP No. 53 of 2014.CONCLUSION The Tribunal affirms the reviewable decision.

Ratio Decidendi

Legal Principle Established

The Applicant appeared and gave evidence and was cross-examined. No other witnesses were called either by the Applicant or the Respondent.CONSIDERATIONPreliminary Issues As explained in Collins, it is necessary to deal with certain antecedent threshold issues. As noted previously, it is not contested that the Applicant is the widow of the veteran who rendered operational service whilst serving onboard HMAS Sydney from 21 September until 13 October 1956. It is also not contested that the veteran died on 28 August 2001 and that his Death Certificate lists his cause of death as “Cancer of prostate” – Exhibit 1 T11 p. 44. 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). The importance of resolving this question was explained by Selway J in Hancock as follows (at [11]):“The Tribunal, faced with the evidence of Dr Betty should have proceeded as follows:(a)First, the Tribunal was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out. None of these were in dispute.(b)Next, the Tribunal was required to determine on the balance of probabilities what ‘kind of death’ Mr Hancock had suffered. This involved the identification, on the balance of probabilities, of any and all SoPs and/or determinations under s 180A(2) of the Act and any other ‘kinds of death’ which were applicable to that death.(c)If one or more statements of principles were applicable, then the methodology of Deledio is applicable in relation to those ‘kinds of death’.(d)If only a determination under s 180A(2) is applicable, then the application must fail.(e)If no SoP and no determination is applicable at all or to a particular ‘kind of death’, then the methodology in Byrnes is applicable in relation to that.” It is also not contested that the veteran’s ‘kind of death’ was malignant neoplasm of the prostate and, accordingly, the relevant SoP is No. 53 of 2014. Having dealt with the antecedent inquiries, the issue before the Tribunal is whether the veteran’s death was “war-caused”.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. Moreover, as Mortimer J pointed out in Forrester v Repatriation Commission [2013] FCA 898 (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 that links the veteran’s death with his operational service is as follows – Exhibit 1 para 26:(a)the veteran enlisted at 19 years of age and was exposed to a RAN service culture, peer group pressure and available cheap alcohol. Consequently, the veteran started to drink and further into his service experienced operational service in South East Asia;(b)the veteran feared for his life when called to action stations and he consumed alcohol to mask his underlying anxiety;(c)whilst on operational service the veteran was given an extra ration of alcohol;(d)having developed a drinking habit to mask his fear of being blown up or drowning, the veteran continued to consume alcohol post-service until he ceased drinking in 1999-2000.