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 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.
There is nothing in the Act to indicate that the obligation on the Tribunal described by the Court in Gorton should not extend to Instruments which apply to amend statements of principle so as to ensure that claims and applications to this Tribunal are considered in the light of all available evidence.
In addition, I note the intention stated in clause 3 of the Amendment Statement of Principles that “[t]he 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.” That is not consistent with a view that the amendment applies to those matters only from a date dictated by the Repatriation Medical Authority – if indeed, as the Commission would have it, that is what it purports to do. Nor is there support for the view that the sound medical and scientific evidence evinced by the Instrument is sound only from the date that the Instrument is published.
When pressed, the Commission submitted that there is no relevant case law on this point. There is no surprise in that.
I conclude that the effect of clause 4 of the Amendment Statement of Principles is as submitted on behalf of Mrs Campbell and that its application to the Tribunal’s consideration of her claim is not limited in the manner urged by the Commission.
On the basis of the Commission’s concessions, with which I agree, I conclude that Mr Campbell’s death was related to his service. I also conclude that the terms of the Amendment Statement of Principles do not affect the date of effect of a decision in accordance with this conclusion.
Given this conclusion, it is unnecessary for me to consider the other issues identified above.
DECISION
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.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member. ....[Sgd]....................................................................
Associate
Dated 12 November 2013
Date of hearing 21 August 2013 Date final submissions received 18 September 2013 Counsel for the Applicant T Saunders Solicitors for the Applicant Kemp & Co Lawyers Advocate for the Respondent A Crowe, DVA Advocacy Section
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