Gundry and Repatriation Commission - [2002] AATA 640

DECISION AND REASONS FOR DECISION [2002] AATA 640

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V00/831

VETERANS APPEALS DIVISION           )
           Re      MAVIS GUNDRY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date26 July 2002
PlaceMelbourne

Decision      The decision under review is affirmed.
  ........ Sgd. Mr J. Handley ............
  Senior Member
CATCHWORDS
Veterans' Entitlements - whether death war-caused; whether diagnosis by reference to a Statement of Principles - whether entitlement can be found under s.8(1)(a) only - decisions affirmed.
Woodward & Repatriation Commission (V2001/935 and V2001/936)
Benjamin v Repatriation Commission [2001] FCA 1879
Veterans Entitlements Act 1986 (Cth)
McKenna v Repatriation Commission [1999] FCA 323
Keeley v Repatriation Commission [1999] FCA 1103
Repatriation Commission v Deledio (1997) 25 AAR 396; (1998) 49 ALD 193
Statement of Principles Instrument No. 59 of 1996
Statement of Principles Instrument No. 85 of 2001
Statement of Principles Instrument No. 73 of 1997

REASONS FOR DECISION

26 July 2002 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Veterans' Review Board ("VRB") made on 23 May 2000. The VRB then affirmed the respondent's decision made on 14 December 1997, to refuse her claim for widow's pension.
Mrs Gundry brings this application as the widow of the late Ernest Gundry, who was born on 27 February 1921 and died on 20 September 1997. The late Mr Gundry was a member of the Australian Army between 14 December 1941 and 17 May 1946. He served overseas and Mrs Gundry is entitled to the beneficial standard of proof.
The cause of death was certified to be "respiratory failure - 2 days: emphysema - 10 years; asthma - 60 years; cardiac failure - 1 year".
The hearing commenced in Albury on 14 March 2001. Ms Bornstein acting as Counsel appeared on behalf of the applicant and Mr Douglass appeared on behalf of the respondent. Mrs Gundry then gave evidence.
The hearing of the application was adjourned part heard to permit the representatives of the parties to mutually obtain a further medical opinion from Doctor David Hart, a consultant respiratory physician. This course of action was considered appropriate and necessary having regard to a number of differing Statements of Principles concerning both asthma and chronic bronchitis.
A number of events subsequently emerged which have, in part, been responsible for the delay in the delivery of these reasons, namely-
i)         obtaining three medical reports from Doctor Hart on 29 May 2001, 7 August 2001 and 7 February 2002 and subsequent Directions Hearings having regard to issues that emerged from those reports; and
ii)        contentions on behalf of Mrs Gundry that her claim be determined under s.8(1)(a) of the Veterans Entitlements Act 1986 ('the Act"), without reference to a Statement of Principles; and
iii)       the hearing of an application where an equivalent legal argument to the above was raised and subsequently decided in an application of Woodward and Repatriation Commission ("Woodward", V2001/935 and V2001/936.). That application was also pursued by 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 Gundry and Repatriation Commission

Details

AGLC: Gundry and Repatriation Commission [2002] AATA 640
Case: [2002] AATA 640
Decision Date: 26 July 2002

CaseChat Overview and Summary

The Federal Court heard an appeal against a decision made by the Repatriation Commission regarding the eligibility of a veteran's dependent for a pension. Mrs. Gundry, the appellant, argued that her late husband's death was war-caused and that she was entitled to a pension under the Veterans' Entitlements Act 1986. The Court had to decide whether the deceased's death was war-caused and if the diagnosis could be made by reference to a Statement of Principles. The Court also needed to determine if the entitlement could be found under section 8(1)(a) only. The case was heard in the Federal Court of Australia, and the decision was made by Justice Allsop. The Court examined the medical evidence and reports provided by Dr. Hart, who diagnosed the deceased with chronic asthma. The Full Federal Court had previously ruled in Benjamin v Repatriation Commission that a diagnosis of injury should not be made by reference to a Statement of Principle but rather determined upon the balance of probabilities. The Court considered the potential of other diagnoses but concluded that the correct diagnosis was asthma. However, the Court found that the material presented in the proceedings did not satisfy the factors outlined in the applicable Statements of Principles concerning asthma. Consequently, the Court affirmed the Repatriation Commission's decision that Mrs. Gundry was not entitled to a pension under the Veterans' Entitlements Act 1986.

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

In his last report of 7 February 2002, Doctor Hart was asked to comment upon a recently issued Statement of Principle - No. 85 of 2001 - entitled "asthma". It was his opinion, having observed that new instrument, that the deceased did suffer asthma as defined within that Instrument. Conclusion & Reasons For DecisionDiagnosis Statement of Principles Subsequent to the hearing in Albury, the Full Federal Court of Moore, Emmett and Allsop JJ, heard an appeal in Benjamin v Repatriation Commission [2001] FCA 1879 ("Benjamin"). The appeal was heard on 13 November 2001 and decided on 21 December 2001. Neither party referred to this decision in the written submissions subsequently lodged, however for reasons which follow, consideration of the decision in Benjamin would be immaterial to the conclusions that I have reached. That is to say, irrespective of the decision in Benjamin, I am not satisfied that Mrs Gundry is able to satisfy any applicable Statement of Principles. In Benjamin (para 41), the Full Court decided that a diagnosis of injury is not to be made by reference to a Statement of Principle. The Court continued, in reference to some earlier decisions of the Tribunal and the Federal Court, that diagnosis is to be determined upon the balance of probabilities. By reason of the inquisitorial nature and responsibility of the Tribunal, consideration should not be given only to the "case" the parties articulate. With those issues in mind, it is obvious from the reports of Doctor Hart that he did have reference to a number of different Statement of Principles. Indeed, he specifically referred to some definitions within the Statements of Principles that were submitted to him. I understand from the reading of his reports that he made those enquiries by way of assistance to the parties and - to his credit - in apparent recognition of the beneficial nature of repatriation legislation - to determine whether Mrs Gundry might satisfy a Statement of Principles. I understand that the first report of Doctor Hart, made on 11 December 2000, diagnosed the condition of chronic asthma by reference to clinical data. I also understand from his report of 29 May 2001, that he preferred the diagnosis of chronic asthma to a diagnosis of chronic bronchitis. This was with regard to particular symptoms the deceased exhibited in his lifetime and referred to in the evidence of Mrs Gundry. In my view it is appropriate, having regard to the inquisitorial duty or the Tribunal, to consider the potential of other diagnoses. I am satisfied, however, that on the balance of probabilities the correct diagnosis of the condition the deceased suffered in his lifetime and which was responsible for his death, to be that of "asthma". It therefore follows, as I understand the decision in Benjamin, that the Statement of Principles with respect to "asthma" should be considered. It is beyond dispute that the two stages of the Deledio analysis (Repatriation Commission v Deledio (1998) 49 ALD 193 at 206 ("Deledio")) would be satisfied. However, I cannot be satisfied that the material raised in these proceedings would satisfy any of the factors in either of the two applicable Statement of Principles concerning 'asthma', current and subsequent to the commencement of the claim, namely Instrument No. 59 of 1996 and Instrument No. 85 of 2001. (Instrument No. 75 of 1997 is not relevant to this analysis because it only amends the definition of "asthma" and contains no reference to or amendments to any of the factors that exist in Instrument No. 59 of 1996).

Ratio Decidendi

Legal Principle Established

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