McDonald and Repatriation Commission (Veterans' entitlements) - [2017] AATA 1636

McDonald and Repatriation Commission (Veterans' entitlements) [2017] AATA 1636 (6 October 2017)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/3871
Re:Suzanne McDonald
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Dr Graham Maynard, Member

Date:6 October 2017
Place:Brisbane

We affirm the decision under review.
........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS - veteran deceased – cause of death prostate cancer – claim for pension by widow – relevant Statement of Principles – standard of proof ss 120(1), 120(3) and 120A of the Act – whether death related to operational service – whether there is a reasonable hypothesis supported by the relevant SoP – Deledio steps – factors of the SoP that as a minimum must exist are not satisfied – reasonable hypothesis not raised connecting the death of veteran with his service – widow not entitled to pension - decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 5E, 6C, 7, 8, 11, 13, 14, 120, 120A, 196
CASES
Repatriation Commission v Deledio (1998) 49 ALD 193
Kattenberg v Repatriation Commission [2002] FCA 412
SECONDARY MATERIALS
Statement of Principles concerning Malignant Neoplasm of the Prostate No. 53 0f 2014
Statement of Principles concerning Malignant Neoplasm of the Prostate No. 54 0f 2014
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
6 October 2017
BACKGROUND

This is an application to review the decision of the Veteran’s Review Board (“VRB”) to affirm the original decision to deny the applicant a war widow’s pension upon the death of her husband, Wayne Andrew McDonald.
The applicant claims that her husband Mr McDonald passed away on 23 April 2014 aged 70 years due to metastatic prostate cancer which was related to his war service.
SERVICE
Mr McDonald served as an “Assistant Instructor Physical Training” in the Australian Army from 4 September 1961 to 3 September 1967.
Mr McDonald’s records of service show that he had operational service on the HMAS Sydney from 22 April 1966 to 18 May 1966, a period of 27 days.
The voyages of HMAS Sydney for April and May 1966 are recorded in the Report of Proceedings. HMAS Sydney had a journey of 27 days departing Sydney on 22 April 1966 and returning to Sydney on 18 May 1966.[1]
[1] See attachments to the Respondent’s Statement of Facts, Issues and Contentions
LEGAL FRAMEWORK
Section 6C(1) of the Veterans’ Entitlements Act 1986 (“the Act”) provides that a member, or a member of a unit, of the Defence Force, allotted for duty in an operational area, who has rendered full-time continuous service in that operational area is taken to have rendered operational service. The terms “operational area” and “allotted for duty” are defined in section 5B of the Act and are determined according to Schedule 2 of the Act in conjunction with a relevant written instrument issued under section 5B(2) of the Act[2].
[2] Instrument of Allotment of Persons under the Veteran’s Entitlements Act 1986 dated 10 December 2010, commencing on…

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.

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Details

Case: [2017] AATA 1636
Decision Date: 6 October 2017

CaseChat Overview and Summary

This matter concerned an appeal by a widow regarding her eligibility for a pension following the death of her husband, Mr. McDonald, from prostate cancer. The core dispute revolved around whether Mr. McDonald's death was related to his operational service, specifically his time on the HMAS Sydney between Australia and South Vietnam in 1966. The Repatriation Commission had denied the claim, and the appeal was heard by Deputy President McDermott.

The legal issues before the court were whether the material before it raised a reasonable hypothesis connecting Mr. McDonald's death from prostate cancer to his operational service, and whether this hypothesis was supported by the relevant Statement of Principles (SoP). This required the court to apply the four-step test established in *Repatriation Commission v Deledio*. The court specifically considered whether the veteran met the minimum exposure requirements stipulated in the SoP concerning malignant neoplasm of the prostate.

The court acknowledged that the material did point to a hypothesis connecting Mr. McDonald's condition to his service, particularly his time on the HMAS Sydney, which included a familiarisation period. However, when assessing the third *Deledio* step, the court found that the material did not satisfy the minimum 30-day exposure requirement under clause 6(b) of the relevant SoP, which pertains to exposure to potable water. Furthermore, the material did not satisfy the factors in clause 6 of the SoP relating to defence service.

Consequently, the court concluded that a reasonable hypothesis connecting Mr. McDonald's death to his operational service, as supported by the relevant SoP, was not raised. The decision under review, which affirmed the Repatriation Commission's denial of the pension, was therefore affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As a matter of completeness, we should mention that the ‘material’, to use the terminology employed in Deledio, does not raise a hypothesis in respect to other factors in clause 6 of the SoP. Nor does the material satisfy on the balance of probabilities the factors in clause 6 of the Statement of Principles concerning Malignant Neoplasm of the Prostate, Instrument Number 54 of 2014, which relates to defence service.CONCLUSION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

There is a statement from Dr Roderick Bain OAM[7] who is a medical advisor to the RSL National Board. While the statement of Dr Bain does not provide evidence reflecting directly on Mr McDonald’s circumstances in his 1966 voyage between Australia and South Vietnam, Dr Bain gave his opinion that army personnel needed to undergo ‘familiarisation’ prior to a ship’s departure. He also offers the opinion that time would be required on the ship after an official posting. [7] T-documents, T8 at pp. 50-51CONSIDERATION The applicant is eligible for a pension if it can be shown that Mr McDonald’s death was related to his operational service, by way of a reasonable hypothesis supported by the relevant SoP.[8] This requires consideration of the four steps outlined in the case of Repatriation Commission v Deledio (1998) 49 ALD 193 at 206 (“Deledio”).First Deledio step[8] See Veteran’s Entitlement Act 1986, section 120A We must consider firstly all the material which is before us and determine whether this material points to a hypothesis connecting the death of Mr McDonald with the operational service rendered by him. The applicant submits that the hypothesis is that Mr McDonald’s service led to the development of his prostate cancer because he spent at least 30 days on the HMAS Sydney, including a familiarisation period prior to departure from Sydney. We consider that the material points to a hypothesis connecting Mr McDonald’s condition to his relevant service. Second Deledio step We must then consider whether there is a relevant SoP in force. In assessing whether a certain SoP applies, the Tribunal must be satisfied as to the ‘kind of death’ met by the veteran: see section 120A(4)(c) of the Act. The death certificate for Mr McDonald outlines that the cause of death was metastatic prostate cancer.[9] Therefore it is apparent that the ‘kind of death’ relevant for the applicant is malignant neoplasm of the prostate. [9] T-documents, T5.2 at p. 38 It follows, and the parties agree, that the relevant SoP is the Statement of Principles concerning Malignant Neoplasm of the Prostate No. 53 0f 2014 (“the relevant SoP”).Third Deledio Step The third requirement in the Deledio process is an assessment of whether the hypothesis is reasonable by way of being supported by the relevant SoP. Clause 6(b) of the SoP sets out the minimum 30 day exposure requirement in order for a veteran’s death from malignant neoplasm of the prostate to be connected to their consumption of potable water. We must determine whether the material supports a reasonable hypothesis. The applicant submits that the veteran meets the minimum 30 day requirement of the relevant SoP because the “contaminated water was carried in the ship for the whole time” (from port to port between Sydney and Vietnam) and that while the veteran’s service records indicate the voyage was 27 days, the veteran would have been subject to a familiarisation period on the HMAS Sydney of at least 3 days, which therefore increases his service period on the HMAS Sydney to at least 30 days.