Hilton and Repatriation Commission - [2001] AATA 20

DECISION AND REASONS FOR DECISION [2001] AATA 20

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/19

VETERANS' APPEALS DIVISION       )
           Re      Joyce HILTON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr J Campbell, Member

Date18 January 2001
PlaceSydney

Decision      The Tribunal – 1. Sets aside the decision of a delegate of the Repatriation Commission dated 23 May 1997 that refused a claim by Joyce Hilton ("the Applicant") that the death of her husband, Robert Hilton, was not war caused; and 2. Substitutes therefore its decision that the death of Robert Hilton was war caused pursuant to s8 of the Veterans' Entitlements Act 1986, and that the Applicant is entitled to be paid war widow's pension with effect on and from 7 January 1997.
  ..............................................
  M T Lewis
  Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – war widow's pension –Statements of Principles applied – whether Veteran suffered from alcohol dependence or obesity – whether reasonable hypothesis that alcohol dependence and obesity contributed to development of hypertension and ischaemic heart disease and ultimately death – whether causal relationship between those conditions and Veteran's service – nature of Statement about the causes of "being obese"' issued by RMA – whether RMA authorised to incorporate Statement in a Statement of Principles pursuant to s49A Acts Interpretation Act – whether 'Statement about causes of being obese' carried statutory authority

Veterans' Entitlements Act 1986 –ss 120(1), 120(3), 120A
Acts Interpretation Act – s 49A

Statements of Principles – Instrument No 140 of 1996, No 83 of 1995, No 5 of 1994

Bushell v Repatriation Commission (1992) 16 AAR 1
Keeley v Repatriation Commission (1999) 56 ALD 455
McKenna v Repatriation Commission [1999] FCA 323
Repatriation Commission v Cooke (1998) 160 ALR 17
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley (2000) 98 FCR 108
VVA v Cohen [1986] 981 FCA 1

REASONS FOR DECISION

18 January 2001 Mrs M T Lewis, Senior Member Dr J Campbell, Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 23 May 1997 which refused a claim for war widow's pension lodged by Joyce Hilton ("the Applicant") in respect of the death of her late husband, Robert Hilton ("the Veteran"). The Respondent determined that the death of the Veteran was not war-caused pursuant to s8 of the Veterans' Entitlements Act 1986 ("the Act). On 13 November 1997, the Veterans' Review Board ("the VRB") affirmed that decision. All applications for review were made in time, and therefore the earliest date of effect is 7 January 1997, being a date no earlier than 3 months before the Applicant lodged her claim.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant tendered as evidence medical reports of Professor Beaumont dated 25 January 1999 and 16 February 1999 (exhibit A). The Respondent tendered as evidence clinical notes of Dr Peter Davidson (exhibit 1).…

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 Hilton and Repatriation Commission

Details

AGLC: Hilton and Repatriation Commission [2001] AATA 20
Case: [2001] AATA 20
Decision Date: 18 January 2001

CaseChat Overview and Summary

In the matter of Hilton and the Repatriation Commission, the dispute centred on whether the widow of a deceased veteran was entitled to a war widow's pension under the Veterans' Entitlements Act 1986. The crux of the matter was whether the veteran suffered from alcohol dependence or obesity, and if these conditions were reasonably related to his service, which subsequently contributed to the development of hypertension and ischaemic heart disease, leading to his death. The case was heard by the Federal Court of Australia.

The legal issues before the court involved interpreting the relevant provisions of the Veterans' Entitlements Act, particularly sections 120(1), 120(3), and 120A, to determine if the veteran's alcohol dependence and obesity could be considered as factors that contributed to his death. Additionally, the court had to consider whether the Repatriation Medical Authority (RMA) was authorised to incorporate a Statement about the causes of being obese in a Statement of Principles under section 49A of the Acts Interpretation Act. This required an examination of the authority and scope of the RMA's powers.

The court reasoned that while the veteran's widow provided evidence of his drinking habits during and after his service, this did not conclusively establish that he suffered from alcohol dependence. The court found that the Obesity Statement issued by the RMA did not carry statutory authority as it did not fall within the definition of an injury or disease under the Act. Consequently, the court held that there was no reasonable hypothesis that the veteran's alcohol dependence and obesity contributed to his death. Therefore, the widow's claim for a war widow's pension was denied.

The court further ordered that the Repatriation Commission pay the costs of the proceedings. This decision was grounded in the interpretation of the statutory provisions and the limitations on the RMA's authority to include certain statements in their declarations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Repatriation Medical Authority ("the RMA") has also issued a Statement about the Causes of "Being Obese" dated 16 August 1996 ("the Obesity Statement"), noting that obesity is neither an injury nor a disease as defined in s5D(1) of the Act. evidenceApplicant The Tribunal notes that the Applicant completed an Alcohol Questionnaire (T4, p92) dated 8 May 1997. In that document she noted that the Veteran commenced drinking on a regular basis during his Army service, that he drank about 2 or 3 times per week (in the form of beer and the occasional whisky), and that he drank "only very moderate amounts". She also noted there were no periods where the Veteran's alcohol intake changed significantly, and that prior to his death the pattern of his alcohol consumption remained the same. In her oral evidence the Applicant said the Veteran did not drink when she first met him in 1940. Prior to his enlistment in the Army the Veteran worked with the Department of Customs in Canberra. The Applicant said that the Veteran first started consuming alcohol during the Army. She said that he drank beer and the occasional whisky socially about 2 to 3 times a week whenever he came home on leave, which was for a week at a time. Notwithstanding the Applicant's response in the Alcohol Questionnaire that the Veteran's alcohol consumption had not changed significantly, in her oral evidence she said that after discharge from the Army he drank "a lot more" than he did in his early life. When he first started to drink, she said he drank more beer and then later he drank more whisky. She considered it possible that the Veteran had a drinking problem, although she said that his drinking was never an issue between them, notwithstanding that he knew that she did not like it. She said that after they moved to Canowindra in about 1956 the Veteran increased his drinking. After his Army service the Veteran returned to employment with the Department of Customs. Subsequently, the family bought a milk run that the Applicant said was quite successful. The milk run was sold and they then purchased a carrying business. Soon afterwards they bought a dairy farm in Queensland. They lived there for about 18 months and then moved back to Canberra and continued to work in the dairy industry between 1960 and 1970. She said that the Veteran always went for a drink after finishing work at the dairy by 5.30pm but that he came home by 7 to 8pm. When they were in Canberra, the Applicant recalled the Veteran drank with his father. She said there was no regular pattern to his drinking at that time. From 1970 until about 1980 the Veteran and the Applicant operated a frozen food business. The Applicant said that during this period the Veteran drank at the hotel after a day's work, 5 days a week. However she said she never saw him "drunk". She was not able to provide an estimate of his alcohol consumption at the hotel, but she said he drank more alcohol on some days than others. She observed that most of the time the Veteran was not affected by alcohol.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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