Garland and Repatriation Commission (Veterans' entitlements)
[2024] AATA 1234
•20 May 2024
Garland and Repatriation Commission (Veterans' entitlements) [2024] AATA 1234 (20 May 2024)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2020/3372
Re:Doreen Garland
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Senior Member George
Date:20 May 2024
Place:Adelaide
The decision under review is set aside and substituted with a decision that the Applicant is entitled to a Widow’s Pension under section 13 of the Veterans’ Entitlement Act 1986 (Cth).
..................[Sgnd]..................
Senior Member George
CATCHWORDS
VETERANS’ – conditions – the kind of death of the Veteran – Australian Army – whether the Veterans’ death was war caused – metastatic prostate cancer – ischaemic heart disease – decision under review is set aside.
LEGISLATION
Administrative Appeals Tribunal 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Austen and Repatriation Commission [2016] AATA 923
Bushell v Repatriation Commission (1992) 175 CLR 408
Collins v Repatriation Commission [2009] FCAFC 90
Howard v Repatriation Commission [1999] FCA 1030
McCallum and Repatriation Commission [2014] AATA 323
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock (2002) 37 AAR 383
SECONDARY MATERIALS
Statement of Principles concerning ischaemic heart disease (Reasonable Hypothesis) (No.1 of 2016)
REASONS FOR DECISION
Senior Member George
20 May 2024
Mr Oscar Garland was a farm hand, before he enlisted in the Australian Army aged 20 in 1941.[1] He was a section leader and a sniper in the 4th Australian Infantry Battalion.[2] He saw operational service in Papua New Guinea.
[1] Exhibit R2, T-Documents, T84, Service and Casualty Form, page 803.
[2] Exhibit R2, T-Documents, T32, Veteran’s Claim for Disability Pension and Medical Treatment, page 518.
Mr Garland survived the war and resumed farming.[3] He married Mrs Doreen Garland. Mr Garland passed away in June 2018 at the age of 96 years, and Mrs Garland became a widow.
[3] Exhibit R2, T-Documents, T32, Veteran’s Claim for Disability Pension and Medical Treatment, page 519.
Mrs Garland is now aged 93. She is unwell and has recently been an inpatient at Port Macquarie Base Hospital.[4] She did not have the capacity to appear at the hearing.[5] Mr and Mrs Garland’s son, Mr Ernest Garland is now her guardian.[6] He gave evidence.[7]
[4] Exhibit A12.
[5] Exhibit A10.
[6] Exhibit A15.
[7] Exhibits A9 and A13
Mrs Garland claimed a War Widow’s Pension in December 2018. Her claim was refused on the grounds that Mr Garland’s death was not service-related.[8] The Veterans’ Review Board affirmed that decision.[9] The decision of the Board is now under review by this Tribunal.
[8] Exhibit R2, T-Documents, T78, Reasons for Decision, pages 761-763.
[9] Exhibit R2, T-Documents, T2, Veterans’ Review Board Decision, pages 8-15.
The primary issues for the Tribunal to determine are:
(a)the “kind of death” suffered by Mr Garland; and
(b)whether Mr Garland’s death was war-caused within the meaning of section 8 of the Veterans’ Entitlements Act 1986 (“the Act”).
If Mr Garland’s death was war-caused, then it flows that Mrs Garland is entitled to a Widow’s Pension under section 13 of the Act. Indeed, for the following reasons, the Tribunal has decided to set-aside the decision under review and to substitute it with a decision that Mrs Garland is entitled to a Widow’s Pension.
WHAT WAS THE “KIND OF DEATH” SUFFERED BY MR GARLAND?
Mr Garland had been treated for ischaemic heart disease since at least November 1988, when he was under the care of cardiologist Dr Warren Arter.[10] Mr Garland’s medical records from that era are contained in Exhibit 2 at T18. They indicate extensive treatment at Concord Repatriation General Hospital. Notably, in March 1989, Dr Clifford Hughes performed three coronary artery grafts.[11] At the time, these grafts relieved Mr Garland of all cardiac symptoms.[12]
[10] Exhibit R2, T-Documents, T17, Discharge letter of 3 November 1988, pages 402-403
[11] Exhibit R2, T-Documents, T19, Operation Report of 15 March 1989, pages 495-496.
[12] Exhibit R2, T-Documents, T40, Routine review letter of 19 March 1980, page 550.
By 2017, Mr Garland was again suffering cardiac symptoms. Clinical notes from Port Macquarie Base Hospital in April 2017 report that Mr Garland “felt as if he was going to die”. He had “Chest tightenings for approx. 2 days” and felt like “a goanna running around his chest again”.[13]
[13] Exhibit R5, Hospital notes, page 978.
Exhibit R5 contains the clinical notes of Mr Garland’s life in the days leading up to his death. This final period of Mr Garland’s life can be summarised as follows:
(a)On 20 June 2018, Mr Garland presented to Port Macquarie Base Hospital. He was suffering diarrhoea and vomiting, a gastrointestinal bleed, and metastatic prostate cancer. His history of coronary artery disease was noted. His renal function was impaired.
(b)On 26 June 2018, oncologist Dr Stephen Begbie discussed a resuscitation plan with Mr Garland, who had been diagnosed with “prostate cancer, frailty”. Dr Begbie had diagnosed the prostate cancer two years earlier. The goals of the plan were “For comfort care” and Mr Garland was not to be referred to intensive care if he deteriorated or receive cardiopulmonary resuscitation in the event of cardiopulmonary arrest.
(c)Mr Garland’s Discharge Referral Notes mention “Both lung bases have patchy areas of focal dense consolidation posteriorly. There are small pleural reactions on both sides as well as mild symptoms”. Notes of a physical examination mention “chest – basal crackles”. Mr Garland was then transferred to Wauchope Palliative Care for end-of-life care under Dr Moye.
(d)On the morning of 28 June 2018, Mr Garland was distressed and confused. He had shortness of breath.
(e)On the morning of 29 June 2018, Mr Garland died peacefully. His family was present.
(f)A death certificate was issued by Dr Chi (David) Ho, listing Mr Garland’s cause of death as “(I)(a) Metastatic prostate cancer, years.”[14]
[14] Exhibit R2, T-Documents, T82, Death Certificate of Oscar Garland, page 782.
On the evidence before it, the Tribunal is satisfied that metastatic prostate cancer and advanced age were both kinds of death suffered by Mr Garland. The question then arises as to whether ischaemic heart disease is also a kind of death.
In a letter dated 21 August 2019, Mr Garland’s treating General Practitioner, Dr Craig Barry, confirmed that Mr Garland had a long history of severe ischaemic heart disease. This had caused several hospital admissions.
Dr Barry opined that ischaemic heart disease could be added as a kind of death of Mr Garland. He wrote:
“In my medical opinion after reviewing the discharge summaries and having known Mr Garland for the past several years before his death, that Mr Garlands cause of death would have been contributed to his multiple co morbidities. These being –
1. Metastatic prostate cancer
2. Severe ischaemic heart disease (leading to Congestive heart failure)
3. Gastrointestinal bleed secondary to metastatic prostate cancer causing significant anaemia leading to progression of ischaemic heart disease, heart failure and acute renal failure
- Advanced age.”[15]
[15] Exhibit R2, T-Documents, T87, Letter of Dr Barry dated 21 August 2019, pages 43-44.
Dr Barry’s letter of 21 August 2019 satisfied the Board that “multiple co-morbidities contributed” to Mr Garland’s death. These co-morbidities “included severe ischaemic heart disease, which led to congestive heart failure”.[16] The Board found:
“We make this finding because we prefer Dr Barry’s evidence to that of the certifying medical practitioner, Dr Ho. Dr Barry was your husband’s general practitioner for at least three years. In that capacity he had a much better opportunity to understand the whole range of medical conditions with which Mr Garland had been diagnosed, and how they impacted his general health.”[17]
[16] Exhibit R2, T-Documents, T2, Veterans’ Review Board Decision, page 12, paragraph [22].
[17] Exhibit R2, T-Documents, T2, Veterans’ Review Board Decision, page 12, paragraph [23].
In the hearing, both parties relied upon expert evidence from cardiologists. Dr Mark Herman was called for Mrs Garland and Dr Jack Gutman was called for the Respondent.
In his report dated 9 August 2021, Dr Herman stated the following:
“In my opinion, the case of [Mr Garland’s] death, on the balance of the probabilities, was due to his metastatic prostate cancer with local invasion provoking hydro nephrosis with severe kidney dysfunction. His prostate cancer was refractory to hormone therapy and unsuitable for chemotherapy.
His coronary Heart Disease had provoked, due to multiple myocardial infarctions, an ischaemic cardiomyopathy. At the time of his death, he had a crescendo pattern of heart failure with recurrent hospital presentations, which has very poor cardiac prognosis.”[18]
[18] Exhibit A2, Report of Dr Herman dated 9 August 2021.
Dr Herman also provided a supplementary report dated 14 February 2022. In that report he wrote that “Mr Garland’s death was almost certainly multifactorial”, as:
“Whilst his metastatic prostate cancer was listed as the cause of his death, he had a very severe ischaemic cardiomyopathy, with an extremely poor prognosis (expected mortality rate of at least 40% per annum).
Mr Garland was at high risk of dying from his ischaemic cardiomyopathy and any stress on his heart (for example metastatic prostate cancer), could cause cardiac decompression, heart failure and death.
Given the above, I can easily support an ischaemic cardiomyopathy as a “kind of death” in addition to his prostate cancer.”[19]
[19] Exhibit A3, Supplementary Report of Dr Herman dated 14 February 2022.
Dr Herman’s oral evidence was consistent with this earlier opinion that ischaemic heart disease could be added as a kind of death suffered by Mr Garland.
As Mr Garland was placed into palliative care, Dr Herman said it was unlikely that the hospital would conduct any investigative diagnosis into Mr Garland’s deteriorating health. Instead, the goal at that stage was to provide him with end-of-life care. He said the following in his oral evidence:
MR SAUNDERS: Do you accept that a proposition that once a patient is moved from the emergency department – in this case as occurred on 20 June 2018 – into palliative care, that all investigative images, clinical enquiries into cause and effect cease effectively?
DR HERMAN: (Indistinct) I’m unlikely to – I don’t deal with palliative medicine, but its very unlikely that they’d do anything invasive. Once you’ve actually deemed palliative, there’s – very little gets done in terms of blood work ups and various investigations too.[20]
[20] Transcript, page 2, lines 26-34.
Dr Herman opined that Mr Garland was in heart failure at the time of his death. During examination-in-chief, he said:
DR HERMAN: … I mean in the clinical situation where you have a man who is predisposed to heart failure, the major symptom is shortness of breath and we have that in the notes that said he was short of breath. And then the clinical findings, which are consistent, are fluid in the legs – which he had – crepitations in the bases of the lungs, which is a sign of fluid accumulation, very often and he had that and then he had the imagining done of his chest which showed pleural effusions which is fluid in the bases of the lungs which is also consistent with the – diagnosis of heart failure. So putting that altogether in a man who is very predisposed to having recurrent episodes of heart failure – he’s breathless, he’s got fluid in the legs, he’s got fluid in the lungs clinically and he’s got a chest – or a CT imaging of the chest which shows fluid, it’s very consistent with him having heart failure at that stage. Although it wasn’t – there was no diagnosis made by their resident staff who saw him; it’s not written, but the findings are consistent with – and as I said before, it’s not the only thing – I mean the other things that can cause it, it’s very consistent with that.[21]
[21] Transcript, page 7, lines 1-16.
The Respondent contends that the kind of death suffered by Mr Garland was metastatic prostate cancer. It principally relies on the records from Mr Garland’s period of hospitalisation and palliative care in 2018, the death certificate, and the opinion of Dr Gutman in support of this contention. The Respondent submits that the Tribunal should not accept that ischaemic heart disease was a kind of death suffered by Mr Garland.[22]
[22] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions, page 2 [16].
In his report, Dr Gutman opined that ischaemic heart disease was not a medical cause of Mr Garland’s death.[23] Dr Gutman maintained this in his oral evidence, saying the following:
DR GUTMAN: So Dr Herman’s letter 9 August 2021 I think I agreed with Dr Herman of the cause of [Mr Garland’s] death on the balance of probability was due to metastatic prostate cancer and severe renal failure. And then there’s a letter, it’s from Dr Herman on 14 February. And I did not support that ischemic cardiomyopathy was a kind of death in addition to his prostate cancer. From my point of view there was no indication that his problems had a cardiac cause of death.[24]
[23] Exhibit R3, Report of Dr Gutman.
[24] Transcript, page 18 lines 19-26.
Instead, Dr Gutman was of the view that Mr Garland’s death was from prostate cancer and severe renal failure,[25] where pneumonia contributed.[26] This diagnosis of pneumonia was not raised in Dr Gutman’s reports, and he is not a chest physician, however it provides an alternative explanation for Mr Garland’s consolidation of the lung bases.[27] Regarding Mr Garland’s basal crackles, Dr Gutman opined:
DR GUTMAN: The chest has got basal crackles. So basal crackles is consistent with a chest infection, as I mentioned. And not specific for any underlying problem with heart or lungs. Anything that might cause consolidation, can cause basal crackles. They’re not specific for chest infection, but can be seen in chest infections. Basal crackles can be seen in – can be heard in patients with heart failure. When I was training in cardiology we had an excellent teacher, Dr Joel Karl, he was a clinical cardiologist and he said if you diagnose heart failure on the basis of basal crackles, you’re going to make a lot of mistakes, because basal crackles can be due to a lot of different things. Not necessarily heart failure. [28]
[25] Transcript, page 35 lines 19-26.
[26] Transcript, page 36 line 17.
[27] Transcript, page 23 line 17.
[28] Transcript, page 20 lines42-47; page 21 lines 1-3. [28]
In his Report, Dr Gutman agreed that Mr Garland did suffer from ischaemic heart disease:
“…That is, ischaemic heart disease means a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis, vasospasm or dissection of the coronary arteries. There was insufficient blood supply as demonstrated by [Mr Garland’s] positive exercise test and coronary angiogram.”[29]
[29] Exhibit R3, Report of Dr Gutman, page 5.
Although Dr Gutman agreed that Mr Garland suffered from ischaemic heart disease, he said there was no indication that in Mr Garland’s final illness, he had a cardiac cause of death. Instead, he said all indicators pointed to prostate cancer, ureteric obstruction, and severe renal failure as Mr Garland’s final illness.[30]
[30] Exhibit R3, Report of Dr Gutman, page 7.
In his oral evidence, Dr Gutman was asked his opinion on the evidence Dr Herman had given earlier that day:
MR O’BRIEN: - I’ll put it as an assumption or – I want you to assume that Dr Herman’s evidence is that this fellow’s metastatic prostate cancer was the predominant or major cause of [Mr Garland’s] death. But that he – at the time – around the time of his death his presentation in June 2018 – there were signs and symptoms of heart failure, which was a possible clinical manifestation of ischemic heart disease. And that it was that which bought forward Mr Garland’s death by an indeterminate period of what could have been days. What do you say about that?
DR GUTMAN: That he had cardiac failure and that would have caused his death a matter of days earlier than it would have been? I don’t think he had heart failure as a clinical manifestation. I think his problem was renal failure, prostate cancer, and it sounds like he had bilateral basal pneumonia. And then his death was determined at the time by the palliative physicians in treatment. I don’t think heart failure played any role in causing his death.[31]
[31] Transcript, page 22, lines 18-31.
Ascertaining Mr Garland’s kind of death is a question of medical causation. It is determined on the balance of probabilities having regard to the evidence. There may be multiple kinds of death.
In Collins v Repatriation Commission [2009] FCAFC 90, at [84], the plurality consisting of Mansfield and Stone JJ stated:
“… we do not consider that as a matter of law any medical condition which may affect the time of death of a veteran by a measurable period, but does not otherwise play any real role in the pathological changes leading to the death (which are medically ascribed to another medical condition), is a death (that is a medical cause of death) or a kind of death under the VE Act. The medical case or causes of death are to be determined by the relevant decision-maker on the evidence.”
Repatriation Commission v Hancock (2002) 37 AAR 383, McCallum and Repatriation Commission [2014] AATA 323, and Austen and Repatriation Commission [2016] AATA 923 were referred to in the hearing and are read subject to the authority of Collins. The Tribunal has also considered Repatriation Commission v Codd (2007) 95 ALD 619 and Julian and Repatriation Commission [2012] AATA 426. Combined, these cases encapsulate the jurisprudence relating to ascertaining the kind of death met by a person.
Both Dr Gutman and Dr Herman were consistent in their respective oral and written evidence. Dr Herman opined that while metastatic prostate cancer was the main cause of Mr Garland’s death, he was almost certain that his death was multifactorial, and that ischaemic heart disease could be added as a kind of death of Mr Garland. This is consistent with Dr Barry’s opinion that ischaemic heart disease could be added as a kind of death. Dr Gutman did not agree that ischaemic heart disease was a kind of death of Mr Garland. He instead opined that prostate cancer, ureteric obstruction, and severe renal failure contributed to Mr Garland’s death.
The Tribunal has been placed in a position where two eminently qualified cardiologists, both of whom gave reasonable and credible evidence, have disagreed as to whether ischemic heart disease was a kind of death suffered by Mr Garland. The Tribunal places equal weight on the evidence of both cardiologists.
The Tribunal prefers Dr Barry’s evidence to that of Dr Ho. The Tribunal also recalls Mr Garland’s extensive treatment for heart disease.
On balance, having considered all the material before it, the Tribunal is reasonably satisfied that ischaemic heart disease was a kind of death suffered by Mr Garland.
Conclusion:
Mr Garland’s kinds of death included metastatic prostate cancer, ischaemic heart disease, and advanced age.
WAS MR GARLAND’S DEATH “WAR-CAUSED”?
Section 8(b) of the Act provides that Mr Garland’s death shall be taken to be war caused if it arose out of, or was attributable to, his war service.
Section 13 of the Act provides that if Mr Garland’s death was war-caused, the Commonwealth is liable to pay compensation to his dependents. Mrs Garland is a dependent within the meaning of section 11 of the Act.
Sections 120 and 120A of the Act provide a standard of proof and method for determining whether there is a relationship between Mr Garland’s death and his war-service. Applying the standard of proof, subsections 120(1) and (3) of the Act provide that where Mr Garland has rendered “operational service”, his death will be found to be service related if there is a “reasonable hypothesis” connecting the injury, disease or death to service. As subsections 120A(3) and (4) of the Act apply, a hypothesis connecting Mr Garland’s death with service will be reasonable if there is a Statement of Principles (“SoP”) in force that upholds the hypothesis.
In Repatriation Commission v Deledio (1998) 83 FCR 82, the Full Court described the four-stage approach to the application of sections 120 and 120A of the Act. The steps of the reasonable hypothesis test are applied under their respective headings below:
Step 1: Raising a Hypothesis
The hypothesis raised is that Mr Garland died from ischaemic cardiomyopathy in addition to metastatic prostate cancer, caused by his exposure to second hand smoke, which was related to his war service.[32]
[32] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions [23].
Conclusion: Step 1
Noting the Tribunal’s findings as to the kinds of death that Mr Garland suffered, it is uncontentious that the evidence raises a hypothesis that the death of Mr Garland by ischaemic heart disease was war-caused.
Step 2: Identifying the Relevant Statement of Principles
It is uncontentious that the relevant SoP, given the kinds of death found, is the Statement of Principles concerning ischaemic heart disease (Reasonable Hypothesis) (No.1 of 2016).
Conclusion: Step 2
The Relevant SoP is the Statement of Principles concerning ischaemic heart disease (Reasonable Hypothesis) (No.1 of 2016).
Step 3: Applying the Statement of Principles
The Tribunal must assess the reasonableness of the hypothesis raised by reference to the evidence before it. The hypothesis will be reasonable if it contains one or more of the factors consistent with the template found in the Relevant SoP. Every element of that factor of the relevant SoP must be consistent with the raised facts.[33]
[33] Howard v Repatriation Commission [1999] FCA 1030.
At least one of the factors under section 9 of the Relevant SoP must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease with the circumstances of Mr Garland’s war service.
The Applicant relies on Factor 9(8)(b) of the Relevant SoP, that is:
(8) where exposure to second-hand smoke has ceased:
(b) being exposed to second-hand smoke for at least 5 000 hours before the clinical onset of ischaemic heart disease.
Being exposed to second-hand smoke is defined in Schedule 1 of the Relevant SoP as follows:
being exposed to second-hand smoke means being in an enclosed space and inhaling smoke from burning tobacco products or smoke that has been exhaled by a person who is smoking.
The Applicant contends that Mr Garland was exposed to 5000 hours of second-hand smoke prior to the clinical onset of his ischaemic heart disease and that his war service was a material contribution.[34]
[34] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions [34].
In a smoking questionnaire dated 17 October 1989, Mr Garland wrote that he started smoking in 1942 during his service. His smoking habit increased in 1943 due to tension and nervous strain, and he ceased smoking in about 1960.[35]
[35] Exhibit R2, T-Documents, T30, Smoking Questionnaire, page 510.
Hospital notes indicate that the clinical onset of Mr Garland’s ischaemic heart disease was in 1988 with symptoms having first presented in September 1988. Dr Barry and Dr Herman opined, and the Tribunal has found, that ischaemic heart disease could be added as a kind of death of Mr Garland.
In consideration of the material before the Tribunal, it cannot be said that the hypothesis advanced by the Applicant is obviously fanciful, impossible, incredible, or not tenable, too remote, or too tenuous.[36] On the contrary, the Tribunal is satisfied that the hypothesis is reasonable.
[36] Bushell v Repatriation Commission (1992) 175 CLR 408.
Conclusion: Step 3
Based on the evidence before it, the Tribunal is satisfied that the hypothesis raised is reasonable.
Step 4: The Final Test
A reasonable hypothesis having been made, the Tribunal must undertake a fact-finding task and consider whether it is satisfied beyond reasonable doubt that the kind of death of the late Veteran was not war-caused.
It has already been established that Mr Garland commenced smoking during his service.
Major Ian Hawke, a researcher, provided a report calculating Mr Garland’s exposure to smoke as 2,720 hours while he was serving, and not including his post war smoking up to 1960.[37] Major Hawke gave evidence at the hearing. It was compelling. The Tribunal places significant weight upon his evidence.
[37] Exhibit A6, Historian Report of Major Ian Hawke.
In Mrs Garland’s statement, she said that Mr Garland would smoke about 12 cigarettes a day from when she met him in 1956 until he ceased smoking in 1960.[38]
[38] Exhibit A5, Statement of Doreen Garland.
Mr Ernest Garland, the son of Mr and Mrs Garland, gave evidence and provided two written statements. Below are the relevant extracts of Mr Ernest Garland’s statement dated 8 December 2022:
“…3. When my father, Oscar Garland, attended ANZAC day marches his buddies and many bystanders would be smoking around him. For the duration of these marches and the social gatherings afterwards he was constantly exposed to second-hand smoke.
…6. When my father played a game of bowls he could be at the club for around three to three and a half hours, during these matches players would often smoke around him while playing.
…9. When my father attended the bowling club he would often get food and play a game of bowls. He would often visit the indoors and outdoor areas where smoking was not prohibited inside or outside.
…10. I have been told by my family that prior to 2007, there was no segregated area for smoking and when you visited the club it was full of smoke.”[39]
[39] Exhibit A9, Statement of Ernest Garland.
Mr Ernest Garland’s oral evidence was that his late father was exposed to second-hand smoke at ANZAC day marches, the social gatherings that followed and at his local bowling club. He said that Mr Garland would play a game of bowls at the club. During the matches, players around him would often be smoking. The Tribunal accepts this evidence.
The evidence of Major Hawke, Mrs Garland, and Mr Ernest Garland indicate that Mr Garland was exposed to at least 5000 hours of second-hand smoke before the clinical onset of his ischaemic heart disease in 1989. Accordingly, the Tribunal is satisfied of as much.
Conclusion: Step 4
Having regard to the whole of the evidence before it and for the reasons given above, the Tribunal determines that Mr Garland’s death was war-caused as it is not satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Accordingly, the Tribunal must set aside the decision under review and substitute it with a decision that Mrs Garland is eligible for payment of a Widow’s Pension under section 13 of the Act.
DECISION
The decision under review is set aside and substituted with a decision that the Applicant is entitled to a Widow’s Pension under section 13 of the Veterans’ Entitlement Act 1986 (Cth).
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for the decision herein of Senior Member George
.............................[sgnd]..................................
Date of Decision: 20 May 2024
Date of Hearing: 19, 20 & 21 March 2024 Solicitor for the Applicant:
Counsel for the Applicant:
Marina Georges
Kemp & Co LawyersTim Saunders
Solicitor for the Respondent:
Brendan O’Brien
Moray & Agnew LawyersANNEXURE A – Exhibit Register
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
DATE TENDERED
A1
Applicant’s Statement of Facts, Issues and Contentions (21/2/2024)
A
21/2/2024
22/3/2024
19/3/2024
R1
Respondent’s Statement of Facts, Issues and Contentions (19/12/2023)
R
19/12/2023
19/12/2023
R2
T-Documents
N/A
1/7/2020
A2
Report of Dr Herman
A
9/8/2021
28/2/2022
A3
Supplementary Report of Dr Herman
14/2/2022
28/2/2022
A4
Briefing Letter to Dr Herman
Instructions to Dr Herman
1/7/2021
9/12/2021
17/3/2022
A5
Statement of Doreen Garland
28/10/2021
18/3/2022
A6
Letter to Ian Hawke
Historian Report of Ian Hawke
9/7/2021
15/7/2021
18/3/2022
A7
Applicant’s Statement of Facts, Issues and Contentions
18/3/2022
18/3/2022
A8
Briefing Letter to Dr Herman
Supplementary Report of Dr Herman
6/7/2022
18/7/2022
19/7/2022
A9
Statement of Ernest Garland
8/12/2022
21/12/2022
A10
Letter from Dr Barry, Doreen Garland’s Doctor
14/3/2022
11/3/2024
A11
Additional Contentions
14/3/2024
15/3/2024
A12
Medical Certificate
14/3/2024
15/3/2024
A13
Supplementary Statement of Ernest Garland
14/3/2024
15/3/2024
A14
Email Chain Between Counsel and RSL Regarding Oscar Garland’s Membership
Various
18/3/2024
R3
Briefing Letter to Dr Gutman
Report of Associate Professor Jack Gutman
R
16/2/2023
30/8/2023
18/10/2023
R4
Summary of Evidence Provided to Dr Gutman
Various
14/3/2024
R5
Extracted Summons Bundle
Various
21/3/2024
21/3/2024
0
9
0