Margaret Aspinall and Repatriation Commission - [2014] AATA 305

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2013/4226

Veterans' Appeals Division )
Re: Margaret Aspinall

Applicant
And: Repatriation Commission
Respondent
CORRIGENDUM
TRIBUNAL:             Dr P McDermott RFD, Senior Member
DATE:   30 May 2014
PLACE:                  Brisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
The date ‘7 June 2012’ where it appears in the decision on page 1; and at paragraph 48 on page 16 should instead read ‘21 July 2012’.

...........................Sgd..............................
Senior Member
[2014] AATA 305

Division Veterans' Appeals Division

File Number

2013/4226

Re

Margaret Aspinall

APPLICANT

And

Repatriation Commission

RESPONDENT

Decision

Tribunal
Dr P McDermott RFD, Senior Member

Date 16 May 2014

Place Brisbane
I set aside the decision under review and substitute a decision that the death of the veteran was war-caused and that Margaret Aspinall is entitled to a widow's pension; the date of effect of my decision is 7 June 2012.

..............................Sgd.....................................
Dr P McDermott RFD, Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Pensions and benefits – Widow's pension – Death of veteran – Death by cardiomyopathy – Operational service – Statement of Principles concerning Cardiomyopathy – Reasonable hypothesis connecting death with circumstances of service – Not satisfied beyond reasonable doubt that death was not war caused – Decision under review set aside and substituted
LEGISLATION
Veterans' Entitlement Act 1986 (Cth) ss 5E, 6B, 7, 8, 11, 13, 14, 120, 120A, 196A, 196B
CASES
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
Collins v Repatriation Commission (2009) 258 ALR 204
East v Repatriation Commission (1987) 16 FCR 517
Forrester v Repatriation Commission [2013] FCA 898
Gilbert v Repatriation Commission (1989) 86 ALR 713
Knight v Repatriation Commission [2010] FCA 1134
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Law (1980) 147 CLR 635
Repatriation Commission v Stares (1996) 41 ALD 212
SECONDARY MATERIALS
Statement of Principles concerning Cardiomyopathy (Instrument No 27 of 2003)
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
16 May 2014
INTRODUCTION

Margaret Aspinall (the applicant) was a dependent of the late Ernest John Lawrence Aspinall (the veteran) who served as an Australian mariner in World War II.

The applicant has applied for a war widow’s pension. I have to decide whether the death of the late veteran was related to his service.
BACKGROUND
On 7 September 2012 the applicant made her claim for a war widow’s pension.

On 2 October 2012 a delegate of the Repatriation Commission rejected the claim.

On 22 July 2013 the Veterans’ Review Board (VRB) affirmed the decision. The applicant seeks review of the decision by this Tribunal.
SERVICE
As an Australian mariner, the veteran rendered “eligible war service” in the form

of operational…

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.

Keep reading for free

Create a free CaseChat account to read Margaret Aspinall and Repatriation Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] AATA 305
Decision Date

CaseChat Overview and Summary

Margaret Aspinall, the widow of the late Ernest John Lawrence Aspinall, sought a war widow’s pension following the veteran’s death. The Repatriation Commission had initially rejected the claim, and this decision was later affirmed by the Veterans’ Review Board. The applicant challenged this decision, and the matter was brought before the Tribunal to determine whether the veteran's death was related to his service. The legal issue before the court was whether the veteran's death, which was certified as idiopathic dilated cardiomyopathy, was attributable to his war service under the Veterans’ Entitlements Act 1986 (Cth).

The court applied the Deledio four-step process to assess whether there was a reasonable hypothesis connecting the veteran's death to his service, whether a Statement of Principles (SoP) was in force, if the hypothesis was reasonable under the SoP, and whether the Commission was satisfied beyond reasonable doubt that the death was not war-caused. The respondent conceded that it could not satisfy the Tribunal beyond reasonable doubt that the death was not war-caused, as the veteran's death was attributed to cardiomyopathy, which falls under the definition of cardiomyopathy in the SoP. Given this, the Tribunal found that the veteran's death was war-caused, and the applicant was entitled to a widow’s pension.

The Tribunal concluded that there was a reasonable hypothesis connecting the veteran's death to his service, and since the SoP concerning Cardiomyopathy was in force, the hypothesis was deemed reasonable. As the respondent could not prove beyond reasonable doubt that the veteran's death was not war-caused, the Tribunal substituted the decision of the Veterans’ Review Board. The final orders were that the decision under review was set aside, and a new decision was made that the veteran's death was war-caused, entitling Margaret Aspinall to a widow’s pension effective from 7 June 2012.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Margaret Aspinall (the applicant) was a dependent of the late Ernest John Lawrence Aspinall (the veteran) who served as an Australian mariner in World War II. The applicant has applied for a war widow’s pension. I have to decide whether the death of the late veteran was related to his service.BACKGROUND On 7 September 2012 the applicant made her claim for a war widow’s pension. On 2 October 2012 a delegate of the Repatriation Commission rejected the claim.On 22 July 2013 the Veterans’ Review Board (VRB) affirmed the decision. The applicant seeks review of the decision by this Tribunal.SERVICE As an Australian mariner, the veteran rendered “eligible war service” in the form of operational service from 25 October 1943 to 17 October 1944 and from 1 November 1944 to 11 October 1945 which included service outside Australia.[1] The veteran was awarded the 1939-45 Star and the Pacific Star for his service to his country.[2][1] As defined by ss 6B and 7 of the Act. [2] Exhibit P, p 2.LEGISLATIVE FRAMEWORK Section 8 of the Veterans’ Entitlement Act 1986 (Cth) (the Act) provides for when the death of a veteran is taken to be war-caused. This provision applies where, relevantly under s 8(1)(b), “the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”. Section 13(1) of the Act provides, relevantly, that where a veteran’s death is war-caused, the Commonwealth is liable to pay a pension by way of compensation to the veteran’s dependants. Subsection 14(1) of the Act provides for a dependant of a deceased veteran to make a claim for a pension. Section 11 provides for a dependant to include a “widow”. Section 5E of the Act defines a “widow” to be a woman who was the partner of a veteran immediately before his death. It is not in contention that the applicant was a dependant of the veteran. As the veteran has performed operational service, the determination of whether his death was war-caused is to be made by applying ss 120(1) and 120(3) of the Act. Section 120(1) of the Act provides that where a claim for a pension:in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) of the Act also provides thatIn applying [section 120(1)] 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 the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:(a)that the injury was a war-caused injury or a defence-caused injury;(b)that the disease was a war-caused disease or a defence-caused disease; or(c)that the death was war-caused or defence-caused;as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.STATEMENT OF PRINCIPLES

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The respondent in its facts and contentions dated 5 May 2014 has properly conceded at paragraph 4 that it cannot satisfy this Tribunal beyond a reasonable doubt that the death of the veteran was not war-caused.DECISION I set aside the decision under review and substitute a decision that the death of the veteran was war-caused and that Margaret Aspinall is entitled to a widow’s pension; the date of effect of my decision is 7 June 2012.

Ratio Decidendi

Legal Principle Established

Because one of the veteran's “cause[s] of death” was certified as being idiopathic dilated cardiomyopathy (which comes within the definition of cardiomyopathy in cl 3(b) of the Statement of Principles concerning Cardiomyopathy (Instrument No 23 of 2007) (the SoP)), it is accepted (and I find) that the veteran’s kind of death was cardiomyopathy. It has been held that there may be more than one cause of death.[5] [5] Repatriation Commission v Law (1980) 147 CLR 635 at 648; Collins v Repatriation Commission (2009) 258 ALR 204 at [51].CONSIDERATION As I have found that the veteran suffered from cardiomyopathy, I am required to consider the applicant’s claim in accordance with the Repatriation Commission v Deledio[6] (“Deledio”) four-step process.[7] [6] (1998) 83 FCR 82 at 82-83.[7] Repatriation Commission v Bawden [2012] FCAFC 176 at [40]. In Deledio, the Full Court of the Federal Court of Australia provided guidance on the four steps which I must consider:(i) 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.(ii) If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a [Statement of Principles (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. (iii) 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 ss 196B(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. (iv) 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.[8][8] Deledio at 82-83. [10] (2007) 163 FCR 35 at [31].In Forrester v Repatriation Commission,[9] Mortimer J observed that in Collins v Administrative Appeals Tribunal,[10] Allsop J pointed out that the second sentence in the second paragraph is not correct and that otherwise these four steps have been consistently endorsed and applied to the operation of ss 120 and 120A of the Act.[9] [2013] FCA 898.Step 1 of Deledio

Division	Veterans' Appeals Division
File Number	2013/4226
Re	Margaret Aspinall
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Dr P McDermott RFD, Senior Member
Date	16 May 2014
Place	Brisbane