Eileen Campbell and Repatriation Commission - [2013] AATA 798

[2013] AATA 798

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2012/4291

Re

Eileen Campbell

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Ms N Bell, Senior Member

Date 12 November 2013

Place Sydney
The Tribunal sets aside the decision under review and instead decides that Mr Campbell’s death was related to his service and Mrs Campbell is eligible to be paid pension. The date of effect of this decision is 11 August 2010.
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Ms N Bell, Senior Member
CATCHWORDS
VETERANS ENTITLEMENTS – claim for war widow’s pension – operational service – whether veteran’s service led to death – a reasonable hypothesis raised for prostate cancer – what is the earliest date of effect - decision under review set aside
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 20, 120A, 177, 196
CASES
Gorton v Repatriation Commission [2001] FCA 286
SECONDARY MATERIALS
Repatriation Medical Authority, Statement of Principles No 28 of 2005

Repatriation Medical Authority, Statement of Principles No 77 of 2012
REASONS FOR DECISION
Ms N Bell, Senior Member

William Campbell served in the Royal Australian Air Force from 7 September 1944 to 26 June 1946. There is no dispute that the whole of his service was operational service.
Mr Campbell died on 12 October 2008 and his widow, Eileen Campbell, claimed widow pension on 11 November 2010, contending that her late husband’s death was related to his operational service.
The certificate of Mr Campbell’s death reads:
(I) (a) Cerebral bleed, acute
(b) Thrombocytopenia, 2-3 days
(c) Bone marrow secondaries,
(d) Carcinoma prostate, years
(II) Severe emphysema, smoking related, years
The parties agree that the hypothesis that Mr Campbell’s death from carcinoma of the prostate, an undisputed cause of his death, conforms to factor 5(ca) of the Statement of Principles No. 28 of 2005 as amended by Instrument No. 77 of 2012. All elements of that factor are conceded by the Commission and the Commission concedes, on that basis, that Mr Campbell’s death was related to his service. I agree.
The Commission disputes that the hypothesis conforms to the factor in the Statement of Principles as it was prior to its amendment by Instrument No. 77 of 2012.
Ordinarily, the earliest date of effect of a favourable decision is three months prior to lodgement of the Applicant’s claim. However, the Commission contends that, because clause 4 of the amending Instrument says “[t]he amendment made by this instrument takes effect from 29 August 2012”, then Mrs Campbell cannot commence to be paid the pension until 29 August 2012, notwithstanding that she lodged her claim in November 2010. Mrs Campbell disputes this construction of the Instrument.
The alternative hypothesis raised by Mrs Campbell was that the kind of death suffered by her late husband was death from emphysema. The Commission disputes that this was the kind of death suffered by him.
ISSUES
The issues for me to consider are:
i)What is the earliest possible date of effect of a favourable decision on the basis of SoP 28 of 2005, as amended?
ii)If the…

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 Eileen Campbell and Repatriation Commission

Details

AGLC: Eileen Campbell and Repatriation Commission [2013] AATA 798
Case: [2013] AATA 798
Decision Date

CaseChat Overview and Summary

In the matter of Eileen Campbell against the Repatriation Commission, the Federal Court considered the timing and application of amended Statements of Principles (SoP) in the context of a claim for war-related pension. The primary issue was the earliest possible date of effect for a favourable decision based on the amended SoP 28 of 2005, particularly concerning the diagnosis of malignant neoplasm of the prostate. Mrs Campbell argued that the amendment should apply retroactively, whereas the Commission contended that the amendment took effect on 29 August 2012, as stated in the Amendment SoP 77 of 2012. The court had to determine whether the amendment could be applied to Mrs Campbell’s case before the amendment date and assess if the hypothesis of war causation conformed to the relevant SoP, whether amended or unamended.

The court examined the legislative framework and the intent behind the continual updating of SoPs to incorporate the latest medical and scientific evidence. It considered the principle that claims should be assessed in light of the most recent SoP, as well as the duty of the Tribunal to conduct a complete rehearing of the claim. The court noted the importance of ensuring that claims are assessed fairly and in accordance with the most current evidence. The court also referenced the Federal Court decision in Gorton v Repatriation Commission, which emphasised the Tribunal's obligation to review decisions on the merits and apply the most favourable SoP available at the time of determination.

The court concluded that while the amendment to SoP 28 of 2005 applied from 29 August 2012, the Tribunal had the discretion to apply the amendment retrospectively if it was more favourable to the applicant. Given the principles of fairness and the obligation to apply the most current evidence, the court found that the amendment could be applied to Mrs Campbell’s case. The court also found that the hypothesis of war causation for her condition conformed to the amended SoP. The court ordered that the claim be reconsidered in light of the amended SoP, with the benefit of applying the more favourable terms as of the date of the decision.

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 issues for me to consider are:i)What is the earliest possible date of effect of a favourable decision on the basis of SoP 28 of 2005, as amended?ii)If the date of effect is some date later than three months prior to the date of claim, whether the hypothesis conforms to the unamended SoP?iii)If not, whether, in the alternative, the kind of death was emphysema?iv)If so, whether the hypothesis of death from emphysema conforms to the relevant SoP?WHAT IS THE EARLIEST POSSIBLE DATE OF EFFECT OF A FAVOURABLE DECISION UNDER SOP 28 OF 2005 AS AMENDED? Statement of Principles No. 28 of 2005 concerns malignant neoplasm of the prostate. It provides for a number of factors, conformity to which will establish the reasonableness of a hypothesis of war causation. By an “Amendment Statement of Principles” concerning malignant neoplasm of the prostate, titled Statement of Principles No. 77 of 2012, made “in accordance with the Specialist Medical Review Council Declaration No. 17 of 29 August 2012”, the Repatriation Medical Authority amended Statement of Principles No. 28 of 2005 by inserting additional factors and inserting a definition. Clauses 3 and 4 of the Amendment Statement of Principles provide:3.The amendment made by this instrument applies to all matters to which Instrument No. 28 of 2005, section 120A of the Veterans’ Entitlements Act 1986 and section 338 of the Military Rehabilitation and Compensation Act 2004 apply.4.The amendment made by this instrument takes effect from 29 August 2012. In accordance with sections 20 and 177 of the Act the earliest date of effect of a claim for pension is three months before the date on which the claim for pension was received by the Department of Veterans’ Affairs. The Commission argued that the effect of clause 4 of the Amendment Statement of Principles is that, while the reasonableness of Mrs Campbell’s hypothesis is supported by the Statement of Principles as amended, any favourable decision as to war causation and consequent eligibility for pension may not be given effect at any time earlier than the date noted in clause 4. It was argued for Mrs Campbell that the words “takes effect” in clause 4 of the Amendment Statement of Principles means “becomes law” in the sense that, had Mrs Campbell’s application been determined by this Tribunal before the Amendment Statement of Principles became law, that statement of principles would not have been available to be applied to her case. I was referred to the judgment of the Federal Court in Gorton v Repatriation Commission [2001] FCA 286, in which the Court noted that section 196(7) and (8) of the Act provide for the continual updating of Statements of Principle so that current statements embody sound medical and scientific evidence against which claims are assessed and that the Act evinces an intention for the claim to be assessed in light of all available evidence, including medico-legal evidence as embodied in the most recent statement of principles. The Court also noted that this Tribunal has a duty to review decisions of the Veterans’ Review Board on the merits and conduct a complete rehearing of the claim. The Court said:In my opinion, the AAT is obliged to consider the applicant’s claim in the context of the Statement of Principles No 25 of 1999 unless Instrument 83 is more favourable. If the latter position is the case, then the applicant’s claim must be considered in the context of Instrument 83.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/4291
Re	Eileen Campbell
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Ms N Bell, Senior Member
Date	12 November 2013
Place	Sydney