Jolly and Repatriation Commission - [2001] AATA 940

DECISION AND REASONS FOR DECISION [2001] AATA 940

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/973

VETERANS' APPEALS DIVISION       )
           Re      Pauline Jolly
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member Dr MEC Thorpe, Member

Date14 November 2001
PlaceSydney

Decision The Tribunal decides that pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside. In substitution therefor, the Tribunal decides that Mr Jolly's death was war-caused and Mrs Jolly is qualified to receive a War Widow's Pension from and including 15 January 1999.

.........................................
Ms S M Bullock
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – War Widow's Pension – Operational Service – Helicobacter Pylori Infection – Non-Hodgkin's Lymphoma

LEGISLATION
Veterans' Entitlements Act 1986 ss 8, 9, 119, 120(1), 120(3), 120A

AUTHORITIES
Brown v Dunn (1893) 6 R 67
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Bey (1997) 79 FCR 364
Harris v Repatriation Commission [2000] FCA 1687
Harris v Repatriation Commission (2000) 62 ALD 174
Dixon v Repatriation Commission (1999) 59 ALD 315; (1999) 29 AAR 235

REASONS FOR DECISION

14 November 2001 Ms S M Bullock, Senior Member Dr MEC Thorpe, Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mrs Pauline Jolly of a decision of the Repatriation Commission ("the Commission") dated 29 April 1999 (T2), as affirmed by the Veterans' Review Board ("the Board") on 13 March 2000 (T16), that the death of her husband, Mr William Lennox Jolly, was caused by his service.
A hearing was held before the Tribunal in Sydney on 20 and 23 July 2001. Mrs Jolly provided oral evidence. She was represented by Mr M Vesper of Counsel. Oral evidence was also provided by Mr Mark Lennox Jolly, the son of Mr and Mrs Jolly, and by Mr Ken G Ellis, a friend of the family. The Respondent, the Commission, was represented by Mr Peter Godwin, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) ("T-Documents", T1-T20) and the following exhibits:
Exhibit Number    Description Date
T1 – T20 Section 37 Statement and Documents. Various
A1      Report of Dr R J Butler, Consultant Physician. Supplementary Report of Dr R J Butler. 11 January 2001 26 February 2001
A2      Report of Dr P Katelaris, Consultant Gastroenterologist and Clinical Senior Lecturer, Gastroenterology Unit, University of Sydney.    5 February 2001
A3      Report of Dr C Tiley, Clinical Haematologist, Department of Pathology, Central Coast Area Health Service. Further Report of Dr C Tiley.     4 January 1999 15 January 1999
A4      2 Letters from Mrs Pauline Jolly, Applicant.       18 May 2000
A5      Letter from Mrs Pauline Jolly, "To Whom It May Concern".     12 July 2000
A6      Medical Certificate of Cause of Death, signed by Dr Melanie Keel.   14 January
R1      Report of Professor J A Levi, Director, Department of Medical Oncology, Royal North Shore Hospital and Consultant Physician.         26 April 2001

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 Jolly and Repatriation Commission

Details

AGLC: Jolly and Repatriation Commission [2001] AATA 940
Case: [2001] AATA 940
Decision Date: 14 November 2001

CaseChat Overview and Summary

The case of Jolly and Repatriation Commission involved the claimant, Mrs Jolly, who sought a War Widow's Pension due to the death of her husband, Mr Mark Jolly. The dispute centred on whether Mr Jolly's Helicobacter Pylori infection and Non-Hodgkin's Lymphoma were service-related, specifically if they were caused by his operational service in the Western Desert. The Federal Court of Australia was tasked with reviewing the decision of the Administrative Appeals Tribunal, which had rejected Mrs Jolly's claim.

The primary legal issue before the court was whether the Tribunal had correctly determined that Mr Jolly's respiratory problems and subsequent illnesses were not caused by his military service. This included assessing the weight given to the evidence provided by Mr Kenneth George Ellis, a retired Police Officer and cousin of Mrs Jolly, who provided a detailed account of Mr Jolly's smoking habits and suggested that his respiratory issues stemmed from inhaling dust during service rather than smoking. The court also had to consider the medical evidence and the statements of Mrs Jolly and Dr Tiley about the impact of smoking on Mr Jolly's health.

The court found that the Tribunal had erred in its assessment of the evidence, particularly in undervaluing the impact of Mr Jolly's smoking on his respiratory health. The court noted that the evidence suggested Mr Jolly's smoking habits were extensive and likely contributed significantly to his respiratory problems and subsequent illnesses. The court held that the Tribunal had not adequately considered the evidence regarding the link between Mr Jolly's smoking and his health conditions, which was crucial in determining the cause of his death. Consequently, the court set aside the Tribunal's decision and remitted the matter for reconsideration with a direction to properly assess the evidence regarding Mr Jolly's smoking and its impact on his health.

The court's decision underscored the importance of a thorough and balanced assessment of all relevant evidence when determining the cause of service-related illnesses in pension claims. The case highlighted the need for tribunals to carefully consider the interplay between service-related factors and other contributing factors, such as smoking, in making their determinations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mrs Jolly informed the Tribunal that it was Dr Tiley who had told her about her husband's smoking and the truth about what it did to her husband and that the smoking had caused all his health problems. Mrs Jolly added that in hospital her husband had been too ill for Dr Tiley to talk to him or to her but after her husband's death, Dr Tiley told her everything. Mrs Jolly further stated that although in early 1999 she had not thought much about the effect of the cigarettes, when she saw Dr Butler again she did appreciate the significance of her husband's smoking. However at that time she was still grieving and had depression, but once she got over this she could attend to the issue and she later saw Dr Butler in late 2000. Evidence of Mr Kenneth George Ellis Mr Ellis informed the Tribunal that his wife and Mrs Jolly are cousins. Mr Ellis is a retired Police Officer. His occupational history is that he was a Police Prosecutor for 20 years, then joined the Commonwealth Police, retiring from the Police Force in 1972/73. Mr Ellis is also a veteran who is in receipt of a pension at the Intermediate Rate. Mr Ellis has helped seven or eight applicants in their claim for a Disability Pension, including claims for ischaemic heart disease. Mr Ellis had assisted Mrs Jolly at the Board Hearing and took the "lion's share" of the direction of the case. Mr Mark Jolly was not involved in that case before the Board. Mr Ellis first met Mr Jolly in 1947 and they then met regularly as a family. From about the 1960s, Mr Jolly and Mr Ellis played golf together every two or three months up until 1987. Mr Ellis recalled that Mr Jolly smoked and furthermore, Mr Ellis could not recall a time when Mr Jolly did not smoke between 1960 and the 1990s. Mr Ellis stated that he would not describe Mr Jolly as a "chain smoker". Mr Jolly's and Mr Ellis' golf games would take approximately four and a half to five hours to play 18 holes. During this time, Mr Jolly would smoke one cigarette at each tee. After the game, Mr Jolly and Mr Ellis would have a drink at the golf club and at that time, Mr Jolly would consume four or five glasses of beer. He would then smoke four or five cigarettes. Mr Ellis explained that Mr Jolly would smoke more when he consumed alcohol. The central issue which Mr Ellis proposed to the Board was that it was Mr Jolly's respiratory problems which led to his death. In this regard, Mr Ellis considered that Mr Jolly's service in the Western Desert caused him to inhale great amounts of dust which then caused him to develop a continuing cough. At the Board hearing, Mr Ellis did not think Mr Jolly's smoking was the focus and certainly, he did not deal with this in any great detail before the Board. Mr Ellis told the Tribunal that he did not take Mr Jolly's smoking history into account when he looked at the relevant Statement of Principles. However, having read documents about smoking, Mr Ellis stated that he had raised with Mr Jolly his various statements that he had ceased his smoking in the 1950s. Mr Jolly responded that Mr Ellis should know the reason why he had stated he had ceased smoking and that was that Mrs Jolly forbade smoking. It was common knowledge, Mr Ellis informed the Tribunal, that Mrs Jolly had issued "instructions" to Mr Jolly not to smoke in the house or in her presence. Mr Ellis opined that Mr Jolly was very sensitive to Mrs Jolly's concerns about smoking. Mr Jolly was always concerned that his wife might find out that he was smoking. Mr Ellis noted that Mrs Jolly was well able to make her strong feelings and beliefs felt. Mr Ellis explained that "Mr Jolly did not want any eruptions in the marriage". In this regard, Mr Ellis opined that Mr and Mrs Jolly had quite a good marriage.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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