McKenzie v Repatriation Commission (No 2)

Case [2014] FCA 1007

FEDERAL COURT OF AUSTRALIA

McKenzie v Repatriation Commission (No 2) [2014] FCA 1007

Citation: McKenzie v Repatriation Commission (No 2) [2014] FCA 1007
Appeal from: McKenzie v Repatriation Commission [2013] AATA 216
Parties: DAWN WILKIE MCKENZIE v REPATRIATION COMMISSION
File number: VID 348 of 2013
Judge: MURPHY J
Date of judgment: 16 September 2014
Catchwords: ADMINISTRATIVE LAW – appeal from the Administrative Appeals Tribunal – veteran’s entitlements – widow’s pension claim – whether to remit the matter to the Tribunal – whether sufficient evidence before the Court to make factual finding that Statement of Principle supports the asserted hypothesis – whether appropriate to make factual finding under s 44(7) of the Administrative Appeals Act 1975 – whether evidence points to or supports the asserted hypothesis as reasonable – whether only one result is reasonably open
Legislation: Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Cases cited: Byrne v Repatriation Commission (2007) 97 ALD 359
Collins v Administrative Appeals Tribunal and Another (2007) 163 FCR 35
Comcare v Etheridge (2006) 149 FCR 522
Dixon v Repatriation Commission (1999) 59 ALD 315
Hall v Repatriation Commission [2007] FCA 2109
McKenzie v Repatriation Commission [2014] FCA 777
Repatriation Commission v Butcher (2007) 94 ALD 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Date of hearing: 2 April 2014
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 40
Counsel for the Applicant: Ms F Ryan
Solicitor for the Applicant: Williams Winter
Counsel for the Respondent: Ms E James
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 348 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

DAWN WILKIE MCKENZIE
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

MURPHY J

DATE OF ORDER:

16 SEPTEMBER 2014

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The decision of the Administrative Appeals Tribunal made on 11 April 2013 be set aside and in lieu thereof:

(a)it be declared that the veteran’s death was war-caused within the meaning of s 8 of the Veterans’ Entitlements Act 1986 (Cth); and

(b)it be ordered that the Respondent pay the Applicant a widow’s pension pursuant to the Act with effect from 7 July 2009.

3.The Applicant’s costs of the appeal, including reserved costs, be paid by the Respondent.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 348 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

DAWN WILKIE MCKENZIE
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

MURPHY J

DATE:

16 SEPTEMBER 2014

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

A.       INTRODUCTION

  1. This judgment concerns the question of relief in a claim made by the applicant, Dawn McKenzie, for a widow’s pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The respondent, the Repatriation Commission (“Commission”), opposes Mrs McKenzie’s application.

  2. I handed down reasons for judgment on 25 July 2014 (“the earlier reasons”) in…

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AGLC
McKenzie v Repatriation Commission (No 2) [2014] FCA 1007
Case
[2014] FCA 1007
Decision Date

CaseChat Overview and Summary

McKenzie v Repatriation Commission (No 2) is a case involving a widow's pension claim by Mrs McKenzie, following the death of her husband, Mr McKenzie, a veteran. The dispute arose from a decision by the Administrative Appeals Tribunal (AAT) that dismissed Mrs McKenzie's claim, finding that there was insufficient evidence to support the hypothesis that Mr McKenzie had smoked the requisite amount of cigarettes to qualify for the pension under the relevant Statement of Principle. Mrs McKenzie appealed this decision to the Federal Court of Australia.

The legal issues the court was required to decide centred around the scope of factual findings the Federal Court could make under section 44(7) of the Administrative Appeals Act 1975. Specifically, the court had to determine whether sufficient evidence was before it to make a factual finding that the Statement of Principle supported the asserted hypothesis, and whether it was appropriate to make such a finding under the given circumstances. The court also had to assess whether the evidence presented pointed to or supported the asserted hypothesis as reasonable, and whether only one result was reasonably open.

The court reasoned that the Federal Court has the authority to make factual findings under section 44(7) if it is convenient to do so, considering the expeditious and efficient resolution of the matter and the relative expense and delay to the parties. The court held that it was not necessary for the whole of the material that was before the AAT to be before the Federal Court to make a factual finding. Based on the evidence provided, the court found that there was material pointing to Mr McKenzie having smoked five pack years of cigarettes or other tobacco products, which is the minimum requirement provided by the Statement of Principle. Consequently, the court set aside the AAT's decision and declared that the veteran's death was war-caused, ordering the Repatriation Commission to pay Mrs McKenzie a widow’s pension.

The final orders of the court were to allow the appeal, set aside the AAT's decision, declare that the veteran’s death was war-caused, order the payment of a widow’s pension to Mrs McKenzie, and direct that the Repatriation Commission pay Mrs McKenzie’s costs of the appeal, including reserved costs.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal made on 11 April 2013 be set aside and in lieu thereof:

(a) it be declared that the veteran’s death was war-caused within the meaning of s 8 of the Veterans’ Entitlements Act 1986 (Cth); and

(b) it be ordered that the Respondent pay the Applicant a widow’s pension pursuant to the Act with effect from 7 July 2009.

3. The Applicant’s costs of the appeal, including reserved costs, be paid by the Respondent.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

However, as I will explain, I consider the Court should make a factual finding under s 44(7) for reasons that include those which underpinned my conclusions at [71]-[72] of the earlier reasons.Whether sufficient evidence is presently before the Court to allow it to make the necessary factual assessment or finding? The Commission contends, and I accept, that s 120(3) of the Act mandates consideration of the “whole of the material” before the decision-maker. It argues that a decision based on less than the whole of the material would fail to meet this legislative requirement. It contends that there were 39 items of evidence before the Tribunal and says that Part C of the Appeal Book contains only a small subset of that material. The Commission submits that “the whole of the material” and “the unique qualities of [the] evidence in a viva voce context” including “the demeanour of [Mrs McKenzie] and the flow of cross-examination and examination in chief” are not before the Court. The thrust of the Commission’s contention is that, unless the whole of the material that was before the Tribunal is before the Court, the Court will fall into error if it makes a factual finding under s 44(7). I do not accept this contention. Firstly, the Commission advances no authority in support of it. Subsections 44(7) and (8) of the AAT Act provide: Federal Court may make findings of fact(7)If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if: (a)the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and (b)it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to: (i)the extent (if any) to which it is necessary for facts to be found; and (ii) the means by which those facts might be established; and (iii)the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and (iv)the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and (v)the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and (vi)whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and (vii) such other matters (if any) as the Court considers relevant.(8)For the purposes of making findings of fact under subsection (7), the Federal Court of Australia may: (a)have regard to the evidence given in the proceeding before the Tribunal; and (b) receive further evidence. As Branson J said in Comcare v Etheridge (2006) 149 FCR 522 at [17] the power is:…available to be exercised after the Court has given consideration to the questions of law which constitute the subject matter of the appeal. If the answers to those questions, or any of them, lead to relief being granted to the applicant, the limited power to find facts which is vested in the Court by s 44(7) may be exercised, where it is convenient to do so having regard to the factors identified in the subsection, to avoid the need for the matter to be remitted to the Tribunal for further consideration.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

I directed the parties to provide further submissions as to relief and in particular to provide submissions on the following questions:(a)What if any factual assessment or finding is necessary before the Court (or the Tribunal) may now form an opinion on whether SoP No 41 upholds the asserted hypothesis?(a)Whether sufficient evidence is presently before the Court to allow it to make the necessary factual assessment or finding?(b)Whether the Court should order that some of the evidence before the Tribunal, and if so what parts of it, be placed before the Court?(c)What is the precise scope of the remaining necessary factual enquiry?(d)Given the Tribunal’s statement at [63], if step 3 of the decision-making process described by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”) at 97-98 (“the Deledio process”) is decided in favour of Mrs McKenzie are there any other matters necessary to be decided before the claim can be finalised?CONSIDERATION I will address the issues by reference to the parties’ submissions on these questions.What if any factual assessment or finding is necessary before the Court (or the Tribunal) may now form an opinion on whether SoP No 41 upholds the asserted hypothesis? At [71]-[72] of the earlier reasons, in addressing whether the Tribunal had misapplied s 120(3) of the Act, I said:[71] … In my view:(a)Mrs McKenzie’s evidence that Mr McKenzie told her that he smoked 10-15 cigarettes per day which commenced while he was on operational service and continued until about 1952;(b)Janene McKenzie’s evidence that Mr McKenzie told her that he was a “keen smoker”, that he smoked anything that he could get his hands on, that on his return from service he smoked at work to the point that it was inconvenient, and that he smoked “a lot”; and(c)the evidence in Mr McKenzie’s letters home of his consumption of cigarettes and other tobacco products while he was on service; clearly points to or raises that Mr McKenzie consumed five pack years of cigarettes or other tobacco products which is the minimum provided by SoP No. 41. In my view the Tribunal’s decision that the material before it did not point to that conclusion was made on the facts as found by it and not on the facts as raised by the evidence.[72]Further, in my view the Tribunal’s conclusion that there was “no material” was plainly wrong. Although the Tribunal ascribed little value to it, there was evidence by Mrs McKenzie, supported by the evidence of Janene McKenzie and Mr McKenzie’s letters, which pointed to his having smoked five pack years of cigarettes or other tobacco products. Taking into account all of the evidence before the Tribunal the conclusion that there was no material pointing to his having done so was not reasonably open to it: see Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 451 per Gleeson CJ, Gummow and Callinan JJ. Mrs McKenzie points to these paragraphs and submits that no further factual finding by the Tribunal could displace my conclusion that there is material pointing to Mr McKenzie having consumed five pack years of cigarettes or other tobacco products, which is the minimum provided by SoP No 41. She argues that, given these conclusions, no further factual finding or assessment is necessary.