Hayes v Repatriation Commission
[2005] FMCA 125
•16 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HAYES v REPATRIATION COMMISSION | [2005] FMCA 125 |
| ADMINISTRATIVE LAW – Veterans affairs – widow’s entitlement – appeal from Administrative Appeals Tribunal – whether error of law. |
Veterans' Entitlements Act 1986, s.8, 8(1), 120, 120(4)
Repatriation Commission v Deledio (1998) 83 FCR 82
Treloar v Australian & Telecommunications Commission (1990) 12 AAR 535
Repatriation Commission v Webb (1998) 1411 FCA (5 November 1998)
Repatriation Commission v Law (1981) 97 CLR 321
Fogarty v Repatriation Commission (2003) FCAFC 136
Benjamin v Repatriation Commission (2001) 34 AAR 270
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Hancock (2003) 37 AAR 383
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
| Applicant: | DOROTHY MARJORIE HAYES |
| Respondent: | REPATRIATION COMMISSION |
| File No: | MLG 394 of 2004 |
| Delivered on: | 16 February 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 13 January 2005 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Solicitor for the Applicant: | Mr D De Marchi |
| Solicitors for the Applicant: | De Marchi & Associates |
| Counsel for the Respondent: | Ms J Macdonnell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application be dismissed.
The Applicant shall pay the Respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 394 of 2004
| DOROTHY MARJORIE HAYES |
Applicant
and
| REPATRIATION COMMISSION |
Respondent
REASONS FOR JUDGMENT
In this matter the applicant seeks to appeal from a decision of the Administrative Appeals Tribunal (the AAT) delivered on 27 February 2004 whereby the AAT had affirmed a decision under review refusing to grant to the applicant a war widow's pension.
The applicant is the widow of Charles Henry Hayes (the veteran) and had sought review of the decision of the Veterans' Review Board (VRB) dated 22 July 2002. The VRB had affirmed a decision of the delegate of the respondent dated 5 September 2001 to refuse a claim for a pension because the death of the veteran was not related to his service.
The veteran was born on 21 June 1915. He enlisted in the Australian Army on 10 September 1941 and served in the south‑west Pacific. He was discharged on 5 March 1946. It is common ground that pursuant to s.8 of the Veterans' Entitlements Act 1986 (the VE Act) the period constitutes operational service.
The veteran had suffered from an anxiety disorder which had been accepted as war‑caused. He also suffered from symptoms, namely pain in abdomen, ascribed to anxiety state, coronary artery disease and right shoulder pain, which had not been accepted as war‑caused and there was no claim before the AAT that his coronary artery disease was war‑caused.
In June 1993 the veteran underwent coronary artery surgery. On 1 August 1993 the respondent accepted anxiety state as a war‑caused disability. As indicated there was non‑acceptance of the other conditions to which reference has already been made. In 1999 the veteran developed multiple myeloma, that is malignant cancer of plasma cells, followed by renal failure and he died on 11 July 2001. The cause of death was certified as "acute renal failure - two weeks; multiple myeloma - 20 months".
The applicant applied for a war widow's pension on 27 August 2001 and as indicated ultimately that application was rejected by the respondent's delegate and a review was sought of the VRB decision before the AAT, which in turn was unsuccessful and it is the AAT decision from which an appeal is now sought before this court.
Both parties before the court filed and served submissions in writing and otherwise presented submissions to the court, relying upon the written submissions and referring the court to particular relevant authorities. It is perhaps appropriate to briefly analyse the decision of the AAT and its consideration of the issues. The AAT in my view correctly identified the relevant legislation. It had regard to the liability of the Commonwealth to pay a pension where the death of a veteran was war‑caused. In particular it correctly referred to s.8(1) of the VE Act. That section provides the circumstances in which a veteran's death is taken to be war‑caused and I accept includes the following:
·the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service (s.8(1)(a));
·the death of the veteran arose out of or was attributable to eligible war service (which includes operational service) (s.8(1)(b));
·the injury or disease from which the veteran died was contracted during or before eligible war service and was materially contributed to or aggravated by that service (s.8(1)(e));
·the injury or disease from which the veteran died has been determined to be war‑caused (s.8(1)(f)).
The AAT appropriately considered the provisions dealing with the standard of proof and specifically had referred to those principles which apply in cases where s.120A of the VE Act has application. It further applied and considered the four‑step process set out in the decision of the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 (Deledio) which I do not propose restating in this judgment.
It is clear that in the present case the relevant Statement of Principles for the conditions which were the subject of evidence include SoP for hypertension, No 35 of 2003, and SoP No 55 of 2003 relating to multiple myeloma. In brief terms the AAT’s finding in this matter, contrary to the submissions advanced for and on behalf of the applicant, were that the cause of death of the veteran was multiple myeloma and the AAT specifically rejected that hypertension or hypertension‑related ischaemic heart disease was a medical cause of death or kind of death. It specifically found that the veteran did not satisfy the definition of hypertension in the relevant SoP and accordingly was not prepared to find that hypertension was a cause of death of the veteran.
The AAT made that finding after an assessment of the evidence, which included medical evidence of the veteran's treating general practitioner, who had treated the veteran over a lengthy period of time. Although the evidence revealed some elevated blood pressure readings which, in accordance with the definition of hypertension in the relevant SoP, would indicate hypertension, that is, a systolic reading in excess of 140 mmHg, it was noted that the SoP that is relevant also provides the definition:
“excludes temporary elevations in blood pressure from conditions such as acute renal failure, neurogenic hypertension, eclampsia, pre‑eclampsia or medications.”
The evidence before the AAT from the treating doctor, whilst including evidence of some elevated blood pressure readings of a kind which exceed the upper limit of 140 mmHg systolic readings, were found by the AAT to be evidence of temporary elevations of blood pressure. It is noted that in fact the relevant blood pressure readings occurred for the period 1972 to 1982, with readings, by way of example, on 3 May 1972 of 155/90, on 29 May 1974 135/70, on 9 June 1981 140/80 and in 1998 140/90, the crucial evidence, however, before the AAT of the treating medical practitioner was that he stated that he did not believe that the veteran suffered from hypertension. Although under cross‑examination the AAT notes the general practitioner conceded that, "Ischaemic heart disease may have contributed in some small way to the veteran's death". It went on to note that he said, "Any contribution was insufficient to be included on the death certificate."
Some criticism was made of the finding in relation to hypertension by counsel for the applicant on the basis that there was other evidence from the applicant that the veteran had suffered from hypertension and indeed that evidence is noted by the AAT in its decision. Specifically the AAT refers to the evidence and notes the claim by the applicant that the veteran "took prescribed medication for hypertension from about 1983".
It further notes that the applicant said, "that following the heart surgery in 1993 in addition to panic attacks the veteran often became anxious about conditions on the family farm."
It is helpful to set out the specific finding of the AAT in relation to the issue of the kind of death suffered by the veteran where it states the following:-
“28. On the basis of the death certificate and the relevant medical evidence, the Tribunal is reasonably satisfied that the kind of death suffered by the veteran was multiple myeloma identified in SoP 55 of 2003 (which revoked No 72 of 1999) concerning myeloma.”
It is further useful to set out the remaining paragraphs in the AAT decision:
“29. As there is an SoP in force, the Tribunal is required to apply the methodology in Deledio to the kind of death. Factors 5(a) to (e) of SoP N° 55 of 2003 state:
(a) having received a cumulative equivalent dose of 0.05 Sievert o atomic radiation to the bone marrow where this dose was accumulated at least five years before the clinical onset o myeloma; or
(b) working as a painter for a period or periods of time totalling at least 312 days before the clinical onset of myeloma, and where the work as a painter has ceased, the clinical onset of myeloma has occurred within 20 years of cessation; or
(c) spraying or decanting a herbicide containing 2,4-dichlorophenoxyacetic acid (2,4-D) or 2,4,5- trichlorophenoxyacetic acid (2,4,5-T), in circumstances likely to result in inhalation or absorption of the herbicide, at least five years before the clinical onset of myeloma; or
(d) being:
(i) on land in Vietnam, or
(ii) at sea in Vietnamese waters, or
(iii) on board a vessel and consuming potable water supplied on that vessel, when the water supply had been produced by evaporative distillation of estuarine Vietnamese waters, for a cumulative period of at least 30 days, at least five years before the clinical onset of myeloma; or
for a cumulative period of at least 30 days, at least five years before the clinical onset of myeloma; or
(e) being infected with Human Immunodeficiency Virus (HIV) at the time of the clinical onset of myeloma; or
(f) inability to obtain appropriate clinical management for myeloma.
Step 3 in Deledio requires that an opinion be formed as to whether the hypothesis is reasonable. That is, whether there is material supporting or pointing to the hypothesis connecting the veteran's death with the circumstances of the service rendered by him. If the hypothesis is consistent with the template in the relevant SoP, then it will be reasonable. In Repatriation Commission v Hill (2002) 69 ALD 581 the Full Federal Court stated at 596:
If an essential element of a hypothesis is not raised (or pointed to) by the material before the decision-maker, then the hypothesis is not raised by that material: cf East at FCR 533...
Overall, there is no material or evidence pointing to the veteran meeting any of the relevant factors in the SoP concerning myeloma, and therefore the hypothesis is not consistent with the template and is deemed not to be a reasonable hypothesis.
30. In respect of the sub-hypothesis that ischaemic heart disease was linked to hypertension, each sub-hypothesis must be proven (McKenna v Repatriation Commission (1999) 86 FCR 144). There was no persuasive medical evidence that would lead the Tribunal to conclude that hypertension-related ischaemic heart disease was a medical cause of death (or kind of death) (Hancock). The evidence of Dr Collins is merely speculative, and as has been stated by the Federal Court in East v Repatriation Commission (1987) 74 ALR 518 at 534, a reasonable hypothesis requires more than a possibility, it must be pointed to by the facts. Dr Collins evidence does no more than leave open a possibility. Dr Collins' evidence points to the problems posed by such a hypothesis. He is frank in stating that there are no records of the veteran's renal function post-surgery, which might support such a hypothesis. Furthermore, the possibility of a link through hypertension, upon which he speculates as an alternative hypothesis, is ruled out for the reasons given above. Therefore, the claim must fail.”
It will be noted from paragraph 30 set out above that the conclusion of the AAT in relation to the issue of hypertension or hypertension‑related ischaemic heart disease was one where reference was made to the medical evidence. That medical evidence was referred to in an earlier paragraph of the AAT's decision, part of which has been referred to earlier in this judgment, though it is useful to set out the paragraph in full as follows:
“27. The Tribunal takes into account the beneficial nature of the Act and the fact that direct evidence from the veteran was not possible. The Tribunal finds that Dr Ryan, as the veteran's treating doctor over a lengthy period, had an excellent knowledge of his medical condition. In respect of the veteran's blood pressure readings, the Tribunal accepts the evidence from Dr Ryan that although the veteran sometimes had elevated readings, other readings were normal, particularly after his heart surgery in 1993, when there was minimal medication. Taking into account the requirement of the definition of hypertension in the SoP that temporary elevations must be excluded, the Tribunal finds that the veteran's blood pressure was not permanently elevated. So he does not satisfy the definition of hypertension in the SoP. As hypertension is not a cause of the death of the veteran this SoP is not applicable.”
As I understood the submissions for and on behalf of the applicant it was claimed that there is an error of law in this matter in the assessment and determination of what constitutes hypertension pursuant to the relevant SoP. It was otherwise claimed that errors occurred by the AAT introducing its own definition, rather than assessing on a reasonable hypothesis whether the definition in the SoPs had been met. It was suggested the AAT had misconstrued its task and failed to examine factors contained in the definition of hypertension.
During the course of submissions counsel for the applicant referred to the decision of the Federal Court in Treloar v Australian & Telecommunications Commission (1990) 12 AAR 535 and as
I understood it sought to argue that if ischemic heart disease was a factor in the cause of death, then whether or not it was referred to in the death certificate did not disentitle the applicant to a widows pension. Reference was made to the decision of the Federal Court in Repatriation Commission v Webb (1998) 1411 FCA (5 November 1998) where it was claimed that the Full Court had ruled that it was impermissible to require the applicant to carry a burden of proof by effectively requiring the applicant to destroy a part of the hypothesis by reference to doubts to another part of the hypothesis. Though not specifically a ground of appeal the issue was raised in written submissions and pursued further before the Court. In my view it is clear that the AAT decision as submitted by the Respondent turned on a finding as to the kind of death of the veteran and that there was no material or evidence pointing to the veteran meeting any of the relevant factors of the SoP for myeloma. Hence there was no reasonable hypothesis linking the veteran’s death from multiple myeloma with war service. Treloar’s case was not concerned with the determination of a medical cause of death and unlike other authorities referred to (including Repatriation Commission v Law (1981) 97 CLR 321) there does not appear to me to be any significant conflict of opinion as to the cause of death in this case. Further, I am satisfied that the decision of the Court in Treloar dealt with a specific legislative provision relating to “material contribution” which does not in my view appear to be appropriately introduced in the consideration of a claim under the VE Act.
Other criticisms were made of the AAT and errors of law sought to be established in the manner in which it dealt with the blood pressure readings taken by the treating general practitioner and the manner in which it applied the principles set out in Deledio.
The respondent submitted that many of the claims in the outline of submissions which in part involved additional claims not referred to in the notice of appeal were in fact no more than an attempt to agitate factual issues and did not demonstrate in any event an error of law. It was submitted on behalf of the respondent that in the present case the question of whether the veteran suffered from an injury or disease and the diagnosis of that injury or disease is to be determined by applying the standard of proof in s.120(4) of the VE Act, that is, to the reasonable satisfaction of the decision‑maker (see Fogarty v Repatriation Commission (2003) FCAFC 136 at [34]; Benjamin v Repatriation Commission (2001) 34 AAR 270 at [54]-[55]).
It was noted that s.120(4) of the VE Act imports the civil standard of proof (see Repatriation Commission v Smith (1987) 15 FCR 327 at [355]). It was submitted that the question of whether or not there is an SoP in force in respect of the kind of disease is also determined according to the standard of proof in s.120(4) of the VE Act. I accept those submissions made for and on behalf of the respondent as accurately reflecting the relevant standard of proof in matters of this kind.
It was further submitted by the respondent that determination of the kind of death of the veteran is to be determined by applying the standard of proof in s.120(4) of the VE Act and the following points were made:-
·in the present case the claim was the veteran had a hypertension‑related death;
·the AAT found that the veteran's blood pressure was not permanently elevated;
·it found the veteran did not satisfy the definition of hypertension in the relevant SoP;
·it found that the hypertension was not a cause of death or kind of death;
·it found that the SoP concerning hypertension was not applicable;
·the AAT was reasonably satisfied the kind of death suffered by the veteran was multiple myeloma;
·the AAT was not persuaded that hypertension‑related ischaemic heart disease or hypertension‑related renal impairment was a medical cause of his death.
In my view a proper analysis of the AAT's reasoning process is consistent with the sequence of findings referred to by the respondent in the preceding paragraph. I can see no error of law in the manner which the AAT approached its task. Its fact‑finding mission resulted in a finding of the kind of death suffered by the veteran as being multiple myeloma. That was a finding, in my view, open to it on the medical evidence before it at the time of the hearing.
It is clear, in my view, that before any criticism could be made of the AAT's reasoning process an attack would need to be successfully mounted against its finding that it was satisfied that the kind of death suffered by the veteran was multiple myeloma. On the material before me I cannot see any basis for a successful challenge to that finding.
I cannot see on the material before me any error of law demonstrated in the reasoning process. It is relevant to note that the AAT had correctly identified the relevant provisions of the legislation and moreover it had correctly identified and applied the relevant principles to be followed in an application of this kind, as set out by the Federal Court in Repatriation Commission v Hancock (2003) 37 AAR 383 per Selway J, which the AAT recites in paragraph 25 of its decision as follows:-
“25. In Repatriation Commission v Hancock (2003) 37 AAR 383 Selway J set out the correct approach 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.... .
(b) Next, the Tribunal was required to determine on balance of probabilities what 'kind of death' Mr Hancock had suffered. This involved the identification, on balance of probabilities, of any and all SoPs and/or determinations under s180A(2) of the Act and any other 'kinds of death' which were applicable to that death.
(c) If one or more SoPs were applicable, then the methodology in Deledio is applicable in relation to those 'kinds of death'.
(d) If only a determination under s180A(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.”
I cannot see any error of law arising from the AAT's reasoning and application of the approach set out in the Hancock decision. I accept that in the present application for SoP No 25 of 2003 for hypertension to apply the kind of death had to be hypertension which in this case the AAT found did not exist based upon evidence which was reasonably open to be accepted. Further, the veteran had to suffer from hypertension as described in that SoP (see Repatriation Commission v Gosewinckel (1999) 59 ALD 690 per Weinberg J at [55]). In the circumstances in the absence of any error of law identified either in the notice of appeal or in the submissions made for and on before of the applicant, both before the court and in writing, it follows that the appropriate order of the court is that the application be dismissed with costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 16 February 2005
10
7
0