McCarthy and Repatriation Commission - [2000] AATA 897

DECISION AND REASONS FOR DECISION [2000] AATA 897

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1737

VETERANS' APPEALS DIVISION )

Re Joyce Lillian McCARTHY
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr P D Lynch, Member

Date13 October 2000
PlaceSydney

Decision The Tribunal sets aside the decision under review, being the decision of the Repatriation Commission dated 15 February 1996. In substitution therefor the Tribunal decides that the death of Leslie McCarthy was war caused, and that war widow's pension is payable to his widow, Joyce Lillian McCarthy, with effect on and from 6 August 1995.

..............................................
M T Lewis,
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – war-widow's pension - whether cause of death was suicide – whether veteran suffered from depressive illness – whether veteran suffered from PTSD

Veterans' Entitlement Act 1986 ss 120(1), 120(3), 120A
Statement of Principles, Instrument No. 3 of 1994; Instrument No.15 of 1994; Instrument No.225 of 1995; Instrument No. 71 of 1996; Instrument No 177 of 1996; Instrument No. 58 of 1998

Repatriation Commission v Keeley (2000) 31 AAR 150
Thompson v Repatriation Commission [2000] FCA 939 (19 July 2000)
Repatriation Commission v Cooke (1998) 160 ALR 17
Repatriation Commission v Deledio (1998) 83 FCR 82
McKenna v Repatriation Commission (1999) 86 FCR 144

REASONS FOR DECISION

13 October 2000 Mrs M T Lewis, Senior Member Dr P D Lynch, Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 15 February 1996 that determined that the death of Leslie McCarthy ("the Veteran") was not related to his service. The Veterans' Review Board affirmed that decision on 17 September 1998. On 2 December 1998 Joyce Lillian McCarthy ("the Applicant") lodged an application for review by this Tribunal. All applications for review are in time, and therefore the earliest effective date is 6 August 1995, being not more than three months before the Applicant lodged her claim for war widows' pension.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal 1975. The following documents were lodged on behalf of the Applicant –

Statement of Joyce McCarthy dated 28 May 1999 (exhibit A)
Statement of Fred Menneke dated 9 June 1999 (exhibit B)
Statement of Dr Ben Haneman, MB, BS, FRACP, undated (exhibit C)
Report of Dr Michael D McGrath, psychiatrist, dated 28 October (exhibit D)

A report from Dr Maxine Walden, psychiatrist, dated 27 October 1999 (exhibit 1) was tendered as evidence on behalf of the Respondent. Dr Walden also gave oral evidence at the hearing. The Applicant, Dr Haneman and Mr Menneke on behalf of the Applicant gave oral evidence.
background
The Veteran was born on 2 January 1923. He served in the Australian Army from 5 February 1942 to 29 November 1945, including operational service in New Guinea.
After discharge from the Army the Veteran worked as a production manager in a plastics factory. It was the Applicant's evidence…

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 McCarthy and Repatriation Commission

Details

AGLC: McCarthy and Repatriation Commission [2000] AATA 897
Case: [2000] AATA 897
Decision Date: 13 October 2000

CaseChat Overview and Summary

The case before the Administrative Appeals Tribunal (AAT) involves an application for review of a decision by the Repatriation Commission (Respondent) concerning the entitlement of the Applicant, the widow of the deceased Veteran, to a war-widow's pension. The Veteran had served in the Australian Army during World War II, and his death in October 1952 under circumstances that may have involved suicide raises questions about whether his death was caused by his war service. The Applicant contends that the Veteran's death was war-caused and that she is entitled to a war-widow's pension under the Veterans' Entitlements Act 1986.

The primary legal issue for the AAT to decide is whether the Veteran's death was caused by his war service, such that the Applicant is entitled to a war-widow's pension. This requires the AAT to consider whether there is a reasonable hypothesis that the Veteran's death was connected to his war service and whether such a hypothesis is supported by a Statement of Principles in force at the relevant time. The AAT must also consider the evidence presented regarding the Veteran's state of mind and behaviour in the period leading up to his death, as well as the medical evidence provided.

The AAT considered the evidence from the Applicant, including her account of the Veteran's behaviour and state of mind before his death, as well as the medical evidence from Dr Haneman and Mr Menneke. The Tribunal noted the absence of alcohol in the Veteran's blood at the time of his death and the evidence of a marked personality change in the Veteran in the years leading up to his death. The AAT also considered the relevant legislative provisions and Statements of Principles, noting that the first Statement of Principles concerning suicide was issued after the Respondent made its initial decision. The AAT concluded that the evidence supported a reasonable hypothesis that the Veteran's death was connected to his war service, and that the Applicant is therefore entitled to a war-widow's pension. The AAT further found that the Respondent's decision was not in accordance with the law, as it failed to properly consider the evidence and the applicable legislative provisions.

The AAT set aside the Respondent's decision and remitted the matter to the Respondent for reconsideration in light of the AAT's findings. The AAT directed the Respondent to determine whether the Applicant is entitled to a war-widow's pension under the Veterans' Entitlements Act 1986, having regard to the evidence and the applicable legal principles.

Orders

Orders of the court

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Background

Background to the litigation

A report from Dr Maxine Walden, psychiatrist, dated 27 October 1999 (exhibit 1) was tendered as evidence on behalf of the Respondent. Dr Walden also gave oral evidence at the hearing. The Applicant, Dr Haneman and Mr Menneke on behalf of the Applicant gave oral evidence.background The Veteran was born on 2 January 1923. He served in the Australian Army from 5 February 1942 to 29 November 1945, including operational service in New Guinea. After discharge from the Army the Veteran worked as a production manager in a plastics factory. It was the Applicant's evidence that for about two years before his death in October 1952 the Veteran experienced a marked personality change. The Applicant said that the Veteran became increasingly concerned about events of the Korean War, which was under way during the months before he died. He exhibited fear and apprehension that he might be required to serve in the Army. Following his death he was found on the railway line, having apparently been run over by a train.the legislation and statements of principles This application falls for consideration pursuant to s120(1) and (3) and s120A of the Veterans' Entitlements Act 1986 ("the Act"). Sub-sections 120(1) and (3) require the Tribunal to determine that the Veteran's death was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Veteran's death was war-caused, if after consideration of the whole of the material, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting his death with the circumstances of his service. Section 120A provides that where a claim is made on or after 1 June 1994, for the purposes of s120(3) a hypothesis connecting the Veteran's death with his war service is reasonable only if there is in force a Statement of Principles that upholds the hypothesis. Pursuant to s120A(2), if the Repatriation Medical Authority ("the RMA") has given notice under s196G that it intends to carry out an investigation in respect of a particular injury, disease or death, the claim must not be determined unless the Statement of Principles has been determined or the RMA has declared that it does not propose to make such a Statement of Principles. The Tribunal notes that at the time the Respondent made its primary decision on 15 February 1996 there was no Statement of Principles for suicide. The first, Instrument 71 of 1996, was dated 21 May 1996. At the hearing on 21 January 2000 submissions were made on the basis of the decision of the Federal Court of Heerey J in Keeley v Repatriation Commission (1999) 30 AAR 48. On 28 April 2000 the Full Federal Court determined that matter on appeal in Repatriation Commission v Keeley 31 AAR 150. Subsequently, the Federal Court in Thompson v Repatriation Commission [2000] FCA 939 determined a related issue in a decision on 19 July 2000 which is now on appeal to the Full Court. The majority (Lee and Cooper JJ) of the Full Court held in Keeley at 165 –Unless a contrary intention is clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued. With regard to beneficial legislation such as the Act, it may be assumed that a construction of substantive provisions least likely to work or cause unfairness in result is to be preferred. It may be concluded that Parliament intended that the review of a decision on a claim made pursuant to a Statement more beneficial to a claimant than the terms of a Statement that replaced the former Statement after the decision had been made, is to be conducted as if the former Statement had not been revoked. Unless the Act provided otherwise, a proceeding initiated under the Act to review a decision made by the Commission was to be carried out by determining if the respondent's claim to a pension had been wrongly refused, the decision of the Commission to be replaced by the decision that should have been made by the Commission had it properly applied the law as it stood: see Esber at 440-441; 255-256 per Mason CJ, Deane, Toohey, Gaudron JJ.

Evidence

Evidence Before The Court

The Tribunal notes that chemical analysis of the Veteran's blood after his death showed that he had no alcohol in his blood. The Applicant's evidence The Applicant said in her written statement (exhibit A) that at the time of the Veteran's death they were managing quite well financially. After he returned from the war he returned to his old employment, and subsequently he was promoted to a managerial position. He was earning a good salary and they had been able to pay extra on the mortgage on their home. She said "when he wasn't in one of his moods, my husband was a loving husband and father". She said -My husband had come home from work on the Thursday prior to his death complaining of severe headache. He was vague and withdrawn – not taking any notice of the children and wandering about the house seeming very agitated. At one time he closed all the windows and doors saying "they" were out there trying to get in. I assured him that there was no one there but he was still concerned. I was worried about his odd behaviour, but as I had a one month old baby and other children to attend to my attention was distracted. He made a token effort to eat his dinner and then retired to bed. On the following day, my husband said that he wasn't well enough to go to work, and I rang his assistant at work to inform them that he wasn't coming in. My husband often complained of headaches and he had a dependency on Bex headache powders. My mother came to visit later and my husband again retired to bed. Because of our concern for my husband's wellbeing my father came to visit on Sunday. On the night of his death, my husband asked me to read the 23rd Psalm. I was surprised at this request because he was not interested in religion and I did not think that he was familiar with the Psalm.To my knowledge, he never took off his wedding ring, which he removed on the night of his death. His behaviour over the weekend seemed to be fatalistic, as though he thought that he was going to die or had to die. When I kissed him "goodnight" expressing the hope that he would be better the next day, he said, "Ah Joycie, what have I done to you and the kids". I tried to reassure him but apparently failed.After my husband's death, that night after being hit by a train, I remember quite clearly the police sergeant saying to my mother in law and me that they will "fix things up". This was done I believe at the time to protect me and our children and avoid problems with any stigma associated with suicide.Mr Arthur Bruce, my husband's work colleague and witness who identified his body, told me after my husband's death that he had had to remonstrate with my husband about his drinking habits. Mr Arthur Bruce died in the 1970's. …. The Applicant also made a written statement in support of her claim (T5). In it she noted that the Veteran served in an advance supply depot in Port Moresby, Buna, Kokoda and Lae. She noted that his letters contained terms such as "they were over again today" which she assumed to be a reference to enemy planes overhead. She noted that although the Veteran did not drink on discharge, he soon developed a dependency on alcohol. It was not until after his death that she was told by a workmate about the hours the men spent at the pub whereas the Applicant thought he was working overtime. She noted that he often worked on Saturdays and went to the pub afterwards. She noted that at times "we all walked warily so as not to upset him and cause an outburst of temper". She said that he was not physically violent but he was verbally aggressive which distressed the family and caused her family and friends to visit only when he was not at home.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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