Lonergan and Repatriation Commission
[2007] AATA 1924
•5 November 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION 2007 AATA 1924
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q200600388
VETERANS’ APPEALS DIVISION ) Re MURIEL LONERGAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal
Dr EK Christie, Member
Dr JB Morley, Member
Date 5 November 2007
PlaceBrisbane
Decision The decision under review is affirmed. The possibility of an Act of Grace payment is raised in the factual circumstances. ......................[Sgd]...............................
DR EK CHRISTIE
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war widow’s pension – cerebrovascular accident – alcohol threshold – assumed fact reasonably open to be inferred from, pointed to, raised by and so permitted by the material – reasonable hypothesis raised by assumed or raised fact – satisfaction of Statement of Principles – war-caused death – Act of Grace Payment
Veterans’ Entitlements Act 1986 ss 119, 120(1), 120(3)
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Stares (1996) 41 ALD 212
East v Repatriation Commission (1987) 74 ALR 518
Horne v Repatriation Commission (1996) 24 AAR 127
Critch v Repatriation Commission (1996) 43 ALD 574
Stares v Repatriation Commission (1996) 66 FCR 594
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Bey (1997) 47 ALD 481
Bushell v Repatriation Commission (1992) 175 CLR 408
Connors v Repatriation Commission [2000] FCA 783
Repatriation Commission v Whetton (1991) 24 ALD 690
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Jackman v Repatriation Commission [1997] FCA 564
Mason v Repatriation Commission [2000] FCA 1409
Caswell v Powell Duffryn Associated Collieries (1939) All ER 722REASONS FOR DECISION
5 November 2007
Dr EK Christie, Member 1. This is an application by Muriel Lonergan to review a decision of the Veterans’ Review Board (“the VRB”) made on 25 May 2006. The VRB decided that the death of her late husband, Thomas Lonergan, was not war-caused.
2. In reaching its decision, the VRB concluded, on the evidence before it, that:
“17. …. The veteran commenced drinking in Japan. This raises a temporal connection between service and alcohol consumption. However there must also be a causal connection between alcohol to alleviate the stress of working as a military policeman. This was not a popular role. The applicant stated that she met the veteran in 1955 when he was consuming more than 6 pots of beer per day. He consumed as this rate throughout his life and about once a month he would binge drink…
18. There is no evidence that the veteran suffered from a service related psychiatric condition or any painful physical condition which he may have self medicated with alcohol. In theses circumstances the Board could not find a causal connection between service and alcohol consumption. It follows that the Board was satisfied beyond reasonable doubt for the purpose of section 120(10) of the Act that there was no sufficient ground for finding that the veteran’s hypertension or cerebrovascular accident leading to his death was war caused.”
3. At the hearing, Muriel Lonergan was represented by Mr Nathan Jarro of Counsel instructed by Sciaccas. The Repatriation Commission was represented by Mr J Stoner, a Departmental Advocate.
4. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1) and the various documents tendered by the parties.
Facts
5. The general facts were not in dispute and may be stated briefly. The late veteran rendered eligible service (operational service) with the BCOF from 6 March 1946 and was discharged on 9 March 1949. The late veteran’s service operational service was in Japan.
6. Mr Lonergan passed away on 11 April 2004. The cause of death, as certified on the Death Certificate, was 1 Cerebrovascular accident; and 2(a) Dementia 2(b) Cerebrovascular accident with left sided weakness (T4, Folio 27).
7. The late veterans’ accepted and rejected disabilities were:
(a) Service-Related Disabilites
·Bilateral Sensorineural hearing loss with tinnitus
·Chronic Solar skin damage
(b) Non-Service-Related Disabilities
·Intracerebral haemorrhage
·Death. No incapacity found
·Chronic bronchitis and emphysema
Issues To Be Decided
8. The primary issue for the Tribunal to decide was whether the late Mr Lonergan’s death, through a cerebrovascular accident, was caused as a direct result of operational service; and, in turn, whether his alcohol consumption was operational service-related. It was not in dispute that the clinical onset of the Cerebrovascular accident was in 1997.
9. Muriel Lonergan (the late veteran’s widow and the applicant) gave evidence on behalf of the applicant. The respondent called no witnesses. Neither party called for any expert medical evidence at the hearing.
10. At the end of the hearing and with the consent of the parties, the Tribunal issued a Direction for the parties to obtain further medical information (a) from the Royal Brisbane Hospital related to the death certificate issued and admission notes of the late veteran;and (b) record of treating doctors that may refer to the late veteran seeking or receiving any treatment for a “stress condition”.
Evidence Of Muriel Lonergan
11. Mrs Lonergan stated that, ever since she had known her late husband, before they married in 1957, he had been a heavy drinker. He was a salesman, of social and gregarious nature, and enjoyed male company. Each 4-6 weeks he would have a drinking “binge”. It seemed that this resulted from a “build up” of stress, but he never told her why; he had a “very secretive side to him”, and “never discussed things”. He was strongly opposed to a suggestion in 1976 that their then 14-year-old son might join the police force. She did not remember the veteran undergoing any psychiatric treatment, apart from Dr Geffen’s diagnosis of his Alzheimer’s disease.
12. Under cross-examination, she was taken to his Alcohol Questionnaire (Exhibit R1 folios L-M), completed two months after his death. She acknowledged that she could not recall completing this; and that, apart from her having signed it, her answers are recorded in somebody else’s handwriting, perhaps from a person in Brisbane Legacy who was assisting her. She could not recall the veteran telling her, as stated in the answer to question 3 (Folio L) that he started drinking “ during service in Japan as he told me it was extremely stressful as a member of the Militarily Police as they were hated even by their own men”.
13. With regard to the late veteran’s final illness, he suffered his fatal stroke some time after having been admitted to a nursing home because of his Alzheimer’s disease. He was admitted for this also into Royal Brisbane Hospital, unconscious, and died after about five days. She was unable to say whether an autopsy was performed on him, or whether it was another cerebral haemorrhage, or a cerebral infarction (ischaemic stroke).
14. In response to a question from the Tribunal, Mrs Lonergan was unsure whether her late husband had ever sought or received any treatment for any “stress related condition” over the period of time that they were married.
Expert Medical Evidence
15. The medical evidence before the Tribunal at the hearing on 17 November 2006 can be summarised as follows:
·Bundle of documents headed “Investigation of Disability Pension Claim” (Exhibit A1) dated 18 May 2001, including the following questionnaires completed by the late veteran on 4 May 2001:
His personal details (pages 126-130)
His representative and service details (pages 131-140)
His Smoking Questionnaire (141-142)
·On pages 134 and 141 the veteran referred to his “smoking that started and increased because of the stress of service in Japan”, smoking 20-30 cigarettes per day. On page 142 he stated that he ceased smoking in 1986 because “I was getting short of breath”.
·The veteran’s Death Certificate (Exhibit R1 Folio 16) records his Cause of Death on 11 April 2004 as “1. Cerebrovascular accident (for “weeks”), 2(a) Dementia (b) Cerebrovascular accident with left sided weakness (6 years ago)”
·The applicant’s Alcohol Questionnaire of 10 June 2004 (Exhibit R1 Folios L-M)
·General Practitioner, Dr Farook Ameer of Rainworth of 20 January 2005 provided a report (Exhibit R1 Folio 20), with the following information on the veteran’s diagnoses:
CVA (cerebrovascular accident): He suffered this on 15 October 1997, being a right parietal cerebral haemorrhage. He wad admitted into Royal Brisbane Hospital, until 27 December that year. There was “no obvious underlying cause, apart from mild hypertension”.
Dementia: This was due to Alzheimer’s disease.
Hypertension: Apparently, until he suffered his right parietal cerebral haemorrhage, his hypertension seems to have been untreated, but he was discharged from Royal Brisbane Hospital on 27 December 1997 on the anti-hypertensive medication, Coversyl.
Psychiatric illness: His Alzheimer’s disease, was diagnosed by psychiatrist, Dr Josh Geffen of Toowong.
16. The further medical evidence received in response to the Tribunal Direction at the hearing on 17 November 2006 was filed with the Tribunal on 29 January 2007.
17. Consideration of the medical evidence, including the supplementary medical evidence, and Mrs Lonergan’s evidence at the hearing, led to the Tribunal exerting its inquisitorial powers to address facts that might point to a connection between the late veteran’s operational service and the continuation of alcohol consumption in the post-operational service period. This issue arose at the resumed hearing on 13 March 2007.
18. The evidence before the Tribunal indicated that the late veteran experienced stress whilst serving as a military police provost in Japan that led to issues relating to smoking and alcohol use. However, there was little evidence relating to the potential triggers or sources of stress that may have caused these smoking and alcohol use issues to arise when the late veteran was on operational service in Japan.
19. With the consent of both parties, the Tribunal sought professional opinion on the military duties of the late veteran whilst a member of the BCOF in Japan from 1947 to 1949, with a particular focus on the nature and extent (i.e. severity) of the potential stressors that he may have been exposed to whilst serving as a military police provost whilst serving in Japan. Mr Stoner, for the respondent, acknowledged that the costs for the opinion would be a cost for the respondent.
20. The expert report of Professor John McCarthy (UNSW) was filed on 15 June 2007. Supplementary submissions on this report were filed by the applicant and respondent on 2 August 2007.
Statutory Requirements And Case Law
21. Section 120(1) of the Veterans’ Entitlements Act 1986 (“the Act”) provides that, where a claim under Part II for a pension in respect of the death of a veteran relates to the operational service rendered by the veteran:
“the Commission shall determine…that the injury, disease or death of the veteran was war caused…unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
22. Section 120(3) of the Act provides that in applying subsection (1):
“the Commission shall be satisfied, beyond reasonable doubt that there is no sufficient ground for determining…that the injury, disease or death was war-caused…if the Commission, after consideration of the whole of the material before it does not raise a reasonable hypotheses connecting the … injury, disease or death with the circumstances of the particular service rendered by the person.”
23. Following the introduction of Statement of Principles, the Federal Court eventually reached a position where it summarised four stages which it said amount to the course that a decision-maker must adopt in concluding whether injury, death or disease is related to service. In Repatriation Commission v Deledio (1998) 49 ALD 193 the Full Federal Court, at 206, recorded the four stages as follows:
“At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved” (Emphasis added).
24. A hypothesis is no more than a supposition or conjectural explanation of an ultimate fact: see Repatriation Commission v Stares (1996) 41 ALD 212 at 217.
25. The plain meaning of “hypothesis” was considered in East v Repatriation Commission (1987) 74 ALR 518, namely:
“A proposition made as a basis for reasoning without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption.”
26. In Horne v Repatriation Commission (1996) 24 AAR 127, Hill J decided that assumptions were permissible and that facts may be inferred. Support for this proposition was to be found by the decisions of Critch v Repatriation Commission (1996) 43 ALD 574 at 579 and 583 and Stares v Repatriation Commission (1996) 66 FCR 594.
27. In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569-570, Mason CJ, Gaudron and McHugh JJ said :
“An assumed fact cannot arise in the abstract. Obviously it is a fact that Is reasonable open to be inferred from, pointed to or raised by and therefore permitted by the material before the decision maker to give rise to the hypothesis. Using these criteria ensures that the assumed fact is ‘raised’ by the material and can be relied upon as a relevant matter and therefore a ‘raised fact’ in forming an opinion as to the reasonableness of the hypothesis.”
28. Furthermore, their Honours stated:
“The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than the material before the Commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable”.
29. In Repatriation Commission v Bey (1997) 47 ALD 481, a Full Federal Court of five Judges concluded:
“While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must … be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker.”
30. In Bushell v Repatriation Commission (1992) 175 CLR 408 the High Court said (at 414-415) that an hypothesis is not reasonable if it is :
“obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”
and:
“The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (‘the raised facts’) which supports the hypothesis and if the hypothesis can be regarded as reasonable if the facts are true.”
31. In Connors v Repatriation Commission [2000] FCA 783 at para. 14, Kenny J rejected a submission made by Counsel that “no individual part or parts of the hypothesis need be supported by facts raised in or by evidence:. Her Honour decided:
“If an essential element in a hypothesis is not raised (or pointed to) by the material before the decision maker, then the hypothesis is not raised by that material. If the material did raise the hypothesis, the decision maker must determine whether it is reasonable. It would not be reasonable if the hypothesis did not fit the relevant SoP. That is, the facts of the applicant’s service must satisfy the standards set out in the SoP.”
32. As to the correct approach to be adopted in terms of whether the hypothesis raised is a reasonable one, the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, said:
“The position may be summarised as follows:
(1)First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commissions give rise to a reasonable hypothesis connecting the veteran’s service with the war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable the claim fails. Proof of facts is not in issue at this point.
(2)If a reasonable hypothesis is established sub-s (1) of s 120 is applied. The claim will succeed unless:
(a)One or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)The truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, this disproving, beyond reasonable doubt, the hypothesis.”
33. Earlier, in Repatriation Commission v Whetton (1991) 24 ALD 690, the Full Federal Court held:
“(vi)The legal principle that the Tribunal had the ultimate question of deciding the standing of the hypothesis raised and should not be deflected from that task by the opinion of experts did not mean that the Tribunal was excused from understanding and making findings upon expert evidence relevant to the question it had to decide.
(vi)… the correct approach (s 120) was that a finding must be made in favour of an applicant unless the applicant’s case could be rejected beyond reasonable doubt or that the material before the tribunal did not raise a reasonable hypothesis as required under the statute.” [emphasis added]
34. Subsection 119(1)(h) of the VE Act has application for determining whether, on the material before the Tribunal, the hypothesis raised was a reasonable one. Specifically, whether there was a connection between operational service and the cause of death of the late veteran.
35. Subsection 119(1)(h) makes allowance for any difficulties that might lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to the effect of the passage of time, or the absence of, or a deficiency in relation official records.
36. However, subsection 119(1)(h) may not be used to invent evidence which may serve to establish the necessary connection between an injury and war service: Mason v Repatriation Commission [2000] FCA 1409 per Weinberg J.
37. Nor does subsection 119(1)(h)) authorise or require a decision-maker to ignore the evidence before it and decide the case on the basis of quite different evidence: per Weinberg J in Mason v Repatriation Commission.
38. The function of s 119(1) is set out in Repatriation Commission v Bey(1997) 79 FCR 364 where four judges of a five-judge Court said at 373-4:
‘…in order for the hypothesis advanced … to be reasonable, there must be material pointing to a connection between [the] disease and war service. The material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119(1)(g). …Paragraph (h) of s 119(1) is a provision of the same character as paragraph (g)…par (g), it does not authorise the Tribunal to depart from the meaning of provisions of the Act as expounded by judicial decisions.’
39. The decision of LJ Wright in Caswell v. Powell Duffryn Associated Collieries (1939) All ER 722 at 733 is particularly relevant with respect to understanding the common law evidentiary requirements that apply to “inferences”: -
"There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish… But if there are no positive proved facts, from which any inference can be made, the method of inference fails and what is left is mere speculation or conjecture."
40. In relation to the standard of proof in Repatriation Commission v Gosewinckel (1999) 59 ALD 690, the Court held:
“The standard of proof for determining whether a veteran was suffering a morbid condition was the reasonable satisfaction standard in s 120(4) and not the reasonable hypothesis standard in s 120(1) and (3). The reasonable hypothesis standard was to be used to decide whether an injury, disease or death of a veteran was war caused. All other matters were to be dealt with to the reasonable satisfaction standard in s 120(4).” [Emphasis added]
41. The requirements for proof in accordance with the standard in subsection 120(4) – the reasonable satisfaction of the Tribunal – have been considered in a number of cases. As Tamberlin J noted in Jackman v Repatriation Commission [1997] FCA 564:
“The AAT had to determine, to its reasonable satisfaction… Burchett J in Cavell stated that this determination is not to be made upon ‘ nice philosophical distinctions’, equally it is not to be made upon complex calculation of the probability that an intervening event may have occurred. The approach is to be guided by commonsense with an ‘eye to reality’.
Consideration of the Issues
42. We have taken into account all of the oral and documentary evidence, the legislation and case law in exercising our decision-making powers. Furthermore, we have adopted the sequential stages in Deledio’s case in resolving the factual issues in dispute.
Stage I: Whether the Material before the Tribunal points to an Hypothesis that connects the Death of the Veteran with the Circumstances of Services
43. Based on the oral and documentary evidence before us, the general hypothesis than can be constructed is that the late veteran had a drinking habit arising out of his operational service which contributed to his cerebrovascular accident; that the late veteran drank regularly in the post-service period in order to deal with stressful situations encountered during operational service.
44. Applying the principles in East, Stares, Horne and Byrnes, we conclude that the essential elements of the hypothesis are pointed to by the material before us and so raises an hypothesis connecting the death of Mr Lonergan with the circumstances of service. We recognise the hypothesis to be “a supposition made as a starting point for further investigation from known facts and no more than a conjectural explanation of an ultimate fact”.
Stage II: Whether a Statement of Principles is in Force
45. The following Statements of Principles (“SoP”) is applicable: “Cerebrovascular Accident”(Instrument No 51 of 2006). However, the SoP applicable at the date of the original decision was No 52 of 1999. In practice, there is no difference between the SoPs in the factor contended by the applicant.
Stage III: Whether the Hypothesis is a Reasonable One
46. In relation to the hypothesis identified in paragraph 43, and pursuant to subsection 120(3) of the Act, the following factors are contained within the SoP and are consistent with the template or fact:
“Factors that must be related to service
5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to any relevant service rendered by the person.
Factors
6.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cerebrovascular accident or death from cerebrovascular accident with the circumstances of a person’s relevant service are:
…
(c) drinking at least 250 kilograms of alcohol within a 25 year period within the 40 years immediately before the clinical onset of cerebrovascular accident;…”
47. A difficulty that arises in this application for review in the materials before us, is to raise facts that point to a connection between the late veteran’s operational service and the continuation of alcohol consumption in the post-operational service period. The outcome, in these circumstances, turns on the sufficiency of materials to establish the requisite connection: Critch v Repatriation Commission (1006) 43 ALD 574.
48. That is, the question subsection 120(3) requires to be asked is whether all, or some, of the facts raised by the material gives rise to a reasonable hypothesis connecting the veteran’s disease with war service: see Byrnes’ case.
49. Accordingly, the assumed fact in this application for review – the inference that the late Mr Lonergan’s alcohol consumption was caused by operational service must be considered in the light of all of the other material, and not raised by the assumed fact in isolation. The material before us points to the fact that the late veteran drank during operational service because of stress and that he continued drinking when he returned after the war, following his discharge from the Army. Other material points to the fact that he continued to consume alcohol over a very long period of time following operational service.
50. The important issue is whether the assumed fact – the inference between the circumstances of the late veteran’s service leading to alcohol consumption and the continuation of consuming alcohol in the post-war period, is raised by the material, rather than in the abstract: see Critch’s case.
51. Professor McCarthy’s report discusses general stressors that may have placed the late veteran under stress and pressure because of conditions of service experienced by members of the BCOF in post-war Japan. When the late veteran arrived in Japan, his company was located at Hiroshima – a city upon which an atomic bomb had been released on 6 August 1945. However, whilst Professor McCarthy describes things that the late veteran may have seen in Hiroshima, as well as identifying possible stressors, he concludes his report with the following statement:
“You ask if any specific stressors may have been personally experienced by the late Veteran. The absence of records make this question impossible to answer. The general stressors outlined in this report could scarcely have been avoided…
It is regretted that given the absence of hard evidence in parts it is more speculative than considered desirable…”
52. The applicant’s case relies on the establishment of an inference and the application of ss 119(h) of the VE Act that the late veteran’s exposure to stressors in post-war Japan was the trigger for the commencement of his alcohol habits that continued following his discharge from the BCOF. Accordingly, the question becomes whether there are sufficient objective facts to support the inference.
53. In this regard, the report prepared by Professor McCarthy discusses some general stressors that the late veteran could not have avoided – but that it was impossible to say what specific stressors would have been personally experienced by the late veteran. Furthermore, Professor McCarthy acknowledges that the absence of “hard evidence” made his report “more speculative than desirable”. Unfortunately, there is no real evidence before us, at this time, to verify that the late veteran was exposed to the specific stressors raised by Professor McCarthy. Accordingly, we conclude that there are not sufficient objective facts to support an inference that the late veteran was exposed to specific stressors that triggered off his alcohol habit whilst on operational service in post-war Japan. We are reasonably satisfied that any such inference, on the available evidence before us is speculative: Caswell’s case. Section 119(h) of the VE Act, has no application in these circumstances.
54. The sole stressor that was raised in Mrs Lonergan’s evidence was that the operational service of the late veteran as a military provost in post-war Japan arose because of negative attitudes amongst Australian forces to military provosts. Professor McCarthy’s opinion was that such a stressor would be “highly possible”. However, a reasonable hypothesis requires the material before us to support, and not merely leave open a possibility for the hypothesis : Bey’s case.
55. We are reasonably satisfied, having considered all of the available evidence and materials, that there is no sufficient factual material before us that points to a reasonable hypothesis connecting the consumption of alcohol with operational service.
56. We reach the same conclusion in relation to the final aspect of the hypothesis: that the reliance upon alcohol would not have occurred but for the operational service. There is, we consider, no evidence to support such an inference.
57. We conclude the hypothesis, that the late veteran’s drinking habits, over time, were brought about by stressors associated with operational service in post-war Japan, is not tenable and too remote or too tenuous to be a reasonable hypothesis.
58. Given this finding, there is no need for us to consider the fourth and final step of “Deledio”.
59. For all of the above reasons, we conclude that there is no statutory basis for Mrs Lonergan’s application for review to succeed under the VE Act.
60. Whilst this outcome may seem harsh, it would be more appropriate to describe the outcome as unfortunate. The legislation gives us no other option than to make such a finding. There is no discretion in the legislation for us to make any other decision based on the proved facts, as a matter of law.
61. However, we do raise for consideration by Mrs Lonergan’s legal representatives, the Departmental Policy Guideline “Act of Grace Payments” (Part 3, Chapter 9) as the application of the legislation may have produced a result which is unintended, anomalous, inequitable or otherwise unacceptable - given the difficulty of evidentiary proof of specific stressors for the late veteran’s operational service in post-war Japan that connect service to death.
62. The Departmental Policy Guideline states as follows:
“Section 3 Act of Grace Payments
What is an Act of Grace payment
An Act of Grace payment may be made where a person has suffered a loss. Although there is no legal liability on the Commonwealth to meet the loss, it is considered that the Commonwealth bears some responsibility for the loss…
Eligibility for an Act of Grace payment
Eligibility for an Act of Grace payment depends on the claimant’s circumstances and a wide range of matters may be taken into account to determine eligibility although there is no set eligibility criteria for an Act of Grace payment, claims may be considered where:
§a person received incorrect advice leading to detriment, but where there is no legal liability
§a matter is covered by legislation, but its application produces a result which is unintended, anomalous, inequitable or otherwise unacceptable
§it is considered desirable to apply the benefits of proposed legislation, or
§there are other special circumstances where there may be a moral obligation to make a payment
Request for an Act of Grace payment
Requests for ‘Act of Grace payments’ can arise from almost any aspect of Commonwealth administration …
Claims for Act of Grace payments
A claim for an Act of Grace payment should first be considered under the criteria for ‘compensation for detriment caused by administrative error’. If a claim satisfies that criteria it will be determined under the compensation for detriment provisions. Claims that do not satisfy the compensation criteria may be determined under the Act of Grace provisions.”
63. We emphasise that we have no power whatsoever to order that an Act of Grace Payment be made to Mrs Lonergan. The process for such a payment is for Mrs Lonergan firstly to consider whether any of the eligibility criteria may be satisfied to justify making a claim for an Act of Grace payment. The next step would be for Mrs Lonergan to make a claim to the Department for an Act of Grace payment and to request that his claim be assessed under the specified eligibility criteria. The final authority to grant an Act of Grace payment does not rest with the Tribunal, but the Minister for Finance or their appointee.
64. The decision under review is affirmed.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member and Dr B Morley
Signed: .....................................................................................
B. Hitchcock, Personal AssistantDate/s of Hearing 17 November 2006, 13 March 2007
Date of Decision 5 November 2007
Counsel for the Applicant Mr Nathan Jarro
Solicitor for the Applicant Sciacca & Associates
Respondent Mr J Stoner, Departmental Advocate
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