Murfey v Repatriation Commission
[2004] FMCA 601
•16 September 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MURFEY v REPATRIATION COMMISSION | [2004] FMCA 601 |
| ADMINISTRATIVE LAW – Review of Administrative Appeals Tribunal (AAT) decision – Veterans’ Entitlements Act 1986 (Cth), ss.6, 7(1)(a), 8, 13(1), 119(1)(g), 120(1), 120(3), 120A(3), 196B – claim for war widow pension – causal nexus between war service and veteran’s death – whether reasonable hypothesis connecting death with service was raised on the material before the AAT – whether AAT provided adequate reasons – Administrative Appeals Tribunal Act 1975 (Cth), ss.43(2), 43(2B), 44(1) – no error of law disclosed – application dismissed with costs. |
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Hill (2002) 69 ALD 581
Connors v Repatriation Commission (2000) 59 ALD 61
Deledio v Repatriation Commission (1997) 25 AAR 396
Repatriation Commission v Hancock (2003) 37 AAR 383
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Budworth [2001] FCA 1421
Comcare v Lees (1997) 151 ALR 647
Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132
Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No.1) (1987) 77 ALR 577
Telescourt v Commonwealth (1991) 29 FCR 227
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; 136 ALR 481
Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 98 ALR 180
McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609
Grundman v Repatriation Commission [2001] FCA 892
| Applicant: | NANCY MAY MURFEY |
| Respondent: | REPATRIATION COMMISSION |
| File No: | MZ 1395 of 2003 |
| Delivered on: | 16 September 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 18 August 2004 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Demarchi |
| Solicitors for the Applicant: | De Marchi & Associates |
| Counsel for the Respondent: | Ms McMahon |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDER
The application is dismissed.
The applicant pay the respondent’s costs in such sum as shall be determined by this Court.
The determination of the quantum of costs to be fixed is adjourned to a telephone mention before Hartnett FM at 9:00am on Friday 17 September 2004.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1395 of 2003
| NANCY MAY MURFEY |
Applicant
And
| REPATRIATION COMMISSION |
Respondent
REASONS FOR JUDGMENT
Background
On 12 November 2003 and in the Federal Court of Australia the applicant filed a notice of appeal from a decision of the Administrative Appeals Tribunal (AAT) given on 15 October 2003. The applicant appeals pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The grounds of appeal are as set out in paragraph 4 of the notice of appeal.
On 5 December 2003 the proceedings were transferred to this Court by order of Justice Sundberg.
The AAT affirmed the decision under review made by the respondent on 16 February 2000 and affirmed by the Veterans’ Review Board on 27 August 2001.
The decision dated 16 February 2000 refused the applicant’s claim made on 22 December 1999 for a war-widow pension pursuant to s.13(1) of the Veterans’ Entitlements Act 1986 (Cth) (VE Act). The claim was refused as the death of the veteran (Reginald Allan Murfey) on 23 February 1994 was found to be not related to service. The AAT concluded that the material before it did not point to a hypothesis connecting Mr Murfey’s death with the circumstances of his service.
Legislative framework: Veterans’ Entitlements Act 1986
Section 13(1) of the VE Act renders the Commonwealth liable to pay a pension to the widow where the death of a veteran was war-caused.
Section 8 of the VE Act prescribes the circumstances in which a veteran’s death shall be taken to be war-caused, including:
a)Section 8(1)(a) – where death resulted from an occurrence that happened while the veteran was rendering operational service.
b)Section 8(1)(b) – the applicable section – where the death of the veteran arose out of, or was attributable to, any eligible service rendered by the veteran. That is, that war service should have made some contribution, of whatever degree, to the death of the veteran.
Section 6 of the VE Act defines `operational service’. Section 7(1)(a) defines `eligible war service’ to include operational service.
The applicant claimed that the veteran’s death was connected to the operational service rendered by the veteran. The veteran rendered operational service in accordance with s 6 of the VE Act between
5 January 1942 and 24 June 1946.
Where the claim arises from operational service rendered by the veteran, ss.120(1) and (3) of the VE Act set out the standard of proof to be applied in determining whether the death, in this case, was war caused. The application of these sections was explained by the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571:
a)the decision-maker first applies s.120(3) – does the whole of the material give rise to a reasonable hypothesis connecting the veteran’s death (in this case) with the service rendered by the veteran; and
b)if a reasonable hypothesis is raised by the material, then s 120(1) is applied.
When a claim is made, as this was, on or after 1 June 1994 under Part II of the VE Act for a pension that relates to operational service rendered by the veteran, the operation of ss.120(1) and (3) `is affected’ by s.120A of the VE Act.
Section 120A(3)(a) – and subject to s.120A(4) of the VE Act, provides that for the purposes of s.120(3), a hypothesis connecting the death of the veteran with the circumstances of the veteran’s particular war service is reasonable only if there is in force a Statement of Principles (SoP) that upholds the hypothesis.
The Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 95 set out the method by which ss.120(1), 120(3) and 120A(3) of the VE Act are to be applied to a claim:
a)the Tribunal must first consider all of the material before it and determine whether the material raises, or points to, a hypothesis connecting death (in this case) with the circumstances of the particular service rendered by the veteran. It is not a question of fact-finding at this stage. If no such hypothesis arises, the application must fail. It was at this point the AAT determined the application before it must therefore fail.
b)if the material does raise a hypothesis the Tribunal must then ascertain whether there is in force an applicable SoP in respect of the claimed injury or disease that in this case caused the death.
c)if there is in force an SoP in respect of the claimed injury or disease, the hypothesis will be reasonable if it fits, that is, it is consistent with the template to be found in the SoP, that is –
i)a reasonable hypothesis requires more than a mere possibility consistent with the known facts. ‘It is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities: It is not sufficient if the material leaves open a hypothesis of connection’ – East v Repatriation Commission (1987) 16 FCR 517 at 530-531; Repatriation Commission v Bey (1997) 79 FCR 364 at 372-373.
ii)`…there must be more than a hypothesis of connection that is consistent with the relevant SoP…the material must `raise’ or `point to’ such a hypothesis and this hypothesis, as raised or pointed to by the material, must fit the relevant SoP’ – Repatriation Commission v Hill (2002) 69 ALD 581 at [53], [54] and [55].
iii)`If an essential element of a hypothesis is not raised (or pointed to) by the material before the decision-maker, then the hypothesis is not raised by the material – Connors v Repatriation Commission (2000) 59 ALD 61 at 68.
d)if the hypothesis fails to fit the template, it cannot be said to be “reasonable” and the claim will fail.
e)if the hypothesis is found to be a reasonable hypothesis then the Tribunal will apply s 120(1) to determine if it is satisfied beyond reasonable doubt that the death did not arise from war-caused injury or disease. It is only at this stage 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.
SoPs are made by the Repatriation Medical Authority (the RMA) under s.196B of the VE Act in respect of particular kinds of injury, disease or death. The function of a SoP made under s.196B(2) of the VE Act is, according to that sub-section, to prescribe those factors that must exist and which of those factors must be related to service before it can be said that a reasonable hypothesis has been raised connecting a disease or death with the circumstances of operational service. As Heerey J said in Deledio v Repatriation Commission (1997) 25 AAR 396 at 412 (endorsed by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 96) the SoP is a statute backed declaration of what is proved or known scientific fact. It prescribes a medical scientific template, which the claim must fit, and, where the claim is one that relates to operational service, the SoP defines the connection between death and war-service that must be raised by the hypothesis said to connect the disease with the relevant service.
The AAT’s reasoning
The AAT found that the preconditions to a grant of a widow’s pension, other than the causation issue, were satisfied namely that Reginald Allan Murfey was a veteran, the applicant was his widow and the veteran had died – Repatriation Commission v Hancock (2003) 37 AAR 383 at 385 [9].
The next question for the AAT to determine was the cause of death of the veteran. In order to ascertain whether a SoP applied the AAT had to identify the `kind of death’ suffered by the veteran – Repatriation Commission v Hancock (2003) 37 AAR 383 at 385-386, [9]-[10].
In Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634-635, [54] and [55] the Full Court said:
Section 120(1) of the Act assumes the existence of a relevant injury or disease and provides a standard of proof for the determination of whether that injury or disease was war caused. When the Commission, or the Tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s.120(4) of the Act – see Repatriation Commission v Budworth [2001] FCA 1421 paragraph [15].
The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in
s.120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s.120(1). The standard of proof laid down by s.120(1) has no application to the former question.The death certificate recorded the cause of death as due to the effects of cholangiocarcinoma (cancer of the bile duct) 7 months, Septicaemia
2 weeks, pulmonary embolism 2 weeks.
The AAT accepted the evidence of Dr Collins and Professor Cade that cholangiocarcinoma was the primary cause of death.
The AAT identified the relevant SoPs: Malignant Neoplasm of the Bile duct No.34 of 1999 (in force at the date of the Commission’s decision dated 16 February 2000) and SoP No.17 of 2000 (gazetted on 17 July 2000 and in force at the time of the AAT’s decision), Pulmonary Thromboembolism No.3 of 2001 and Chronic Bronchitis and Emphysema No.73 of 1997.
Hypothesis
The hypotheses raised by the applicant in the Statement of Facts and Contentions dated 10 September 2002 were:
a)The veteran suffered ulcerative colitis before the clinical onset of malignant neoplasm of the bile duct and the ulcerative colitis was related to service because the veteran had bowel problems since service.
b)The veteran suffered cholelithiasis (gall stones). No hypothesis connecting cholelithiasis to service was suggested.
The applicant referred to Dr Yoga, Department Medical Officer, who provided a report. The applicant referred to the following extract:
Pulmonary embolism is a sequelae of cholangiocarcinoma. The cause in this case is irritation due to gallstones. The cause of gallstones – cholecystitis SoPs would apply.
c)Septicaemia contributed to the death of the veteran and the infection that caused Septicaemia came from his gut. The veteran had gut problems during and subsequent to service.
The applicant relied on the report of Professor Cade dated
19 June 2002. The applicant referred to the following extract:
…septicaemia as contributing to the veteran’s death. The Septicaemia was shown to be due to bloodstream infection with Enterococcus faecium (21 January) and Enterobacter cloacae (9 February). These two organisms are both enteric (i.e. gut) bacteria…it is almost certain they came from the gut.
On 8 November 2002 the applicant filed an amended Statement of Facts and Contentions. The hypotheses raised were:
a)The veteran’s war-caused smoking habit and chronic airways disease predisposed the veteran to acute chest infection. The applicant relied on the report of Dr Byron Collins in which it was said:
the development of an acute chest infection because of service related smoking habit played a terminal role in the late veteran’s death. …A chest infection…could have provided a source of organism which entered the blood stream, producing septicaemia.
b)The applicant also referred to factor 5(d) of Instrument No.3 of 2001 for pulmonary Thromboembolism and asserted it was met. Factor 5(d) provides:
smoking at least 15 cigarettes per day or the equivalent thereof in other tobacco products, for a period of at least 90 days before the clinical onset of pulmonary thromboembolism, and where smoking has ceased the clinical onset has occurred within 90 days of cessation.
At the hearing the applicant’s representative conceded before the matter commenced that `there is nothing that I can see, no coherent strand that I can see, regrettably, in the statement of facts and contentions which on their face would make a case for this lady’.
The AAT acknowledged that, at the commencement of the hearing, there was no material that pointed to a hypothesis connecting the veteran’s death with service.
The application proceeded with respect to the hypothesis that the veteran had developed an acute chest infection which was the source of the organism which entered the blood stream and produced Septicaemia which contributed to the veteran’s death. The link suggested was between the veteran’s war-caused smoking habit and chronic airways disease predisposing the veteran to acute chest infection. However, the material and evidence before the AAT was as follows:
a)The applicant gave evidence mostly relating to the veteran’s bowel habits;
b)
The AAT had before it medical reports from Dr Collins dated
28 February 2002 and Professor Cade dated 19 June 2002. Professor Cade and Dr Collins attended to give concurrent evidence before the AAT. The doctors indicated to the AAT they wished to view the original hospital notes particularly in respect of the veteran’s terminal admission to determine whether he was suffering a chest infection;
c)
After viewing the hospital records relating to the veteran’s terminal admission the doctors provided further reports dated
11 June 2003 (Professor Cade) and 17 June 2003 (Dr Collins). Both doctors agreed that there was `no robust evidence, either clinical or on x-ray/pathological investigation, to support a hypothesis that an acute chest infection had developed during this admission and had therefore played a role in his demise’;
d)Dr Collins and Professor Cade were both provided with a copy of the applicant’s evidence given at the AAT, but neither doctor referred to that evidence as raising any hypothesis connecting the veteran’s death from cholangiocarcinoma with the circumstances of his service.
Thereafter, the hearing did not reconvene at the request of both parties and written submissions were filed at the request of both parties and in accordance with the direction of the AAT made 20 June 2003.
The AAT considered all of the material before it to determine whether the material raised, or pointed to, a hypothesis connecting the veteran’s death with the circumstances of his service. The AAT held that the applicant’s claim failed as the material did not point to a hypothesis connecting his death with the circumstances of his service. The AAT found:
a)there was no evidence the veteran suffered ulcerative colitis;
b)there was no material raising, or pointing to, a hypothesis connecting cholelithiasis with the circumstances of service rendered by the veteran. That was conceded by the applicant;
c)there was no evidence the veteran had developed an acute chest infection which provided the source of the organism which entered the bloodstream producing septicaemia;
d)the respondent conceded at the hearing the veteran’s smoking habit was service related. The veteran had ceased to smoke in 1980 or 1982. There was no material pointing to the veteran’s smoking being relating to pulmonary embolism that developed in February 1994 some 12-14 years later. The medical evidence pointed to a connection between cholangiocarcinoma and pulmonary embolism;
e)in the written Statement of Facts and Contentions filed by the applicant prior to the commencement of the hearing, and during the course of the hearing, no other hypothesis was suggested by the applicant connecting pulmonary embolism with the circumstances of the veteran’s service.
Consideration
The applicant submitted that the AAT failed to provide “procedural fairness”. I reject this submission. I accept the submissions of counsel for the respondent that the AAT did consider all the material advanced by the applicant. The applicant submitted that the AAT did not, in that material was advanced for the first time in her written reply connecting pulmonary thromboembolism with service. No material was advanced. The applicant merely referred to Factor 5(b) of SoP No.3 of 2001 in paragraph 3 of her reply. No hypothesis connecting venous thrombosis, if it even existed, or how it was related to service was provided. No oral or written medical material was provided to support a diagnosis of venous thrombosis. The AAT determined, quite properly, that a new hypothesis without any evidentiary basis could not be raised in a written submission received by it after the respondent’s final written submission.
The applicant also asserted that SoP No.5 of 2001 for Deep Vein Thrombosis Factor 5(g) applied. There was no material pointing to the veteran suffering deep vein thrombosis. It was not found to be a cause of death – pulmonary embolism was. There was no material connecting deep vein thrombosis with service.
Pulmonary embolism was listed on the death certificate as contributing to death. Any hypothesis was required to connect death from pulmonary thromboembolism with the circumstances of service rendered by the veteran. There was no material raising, or pointing to, a reasonable hypothesis connecting pulmonary thromboembolism with the circumstances of service.
The applicant in the amended Statement of Facts and Contentions stated that Factor 5(d) of SoP No.3 of 2001 for Pulmonary Thromboembolism was met. Factor 5(d) refers to smoking at least 15 cigarettes per day for a period of at least 90 days before the clinical onset of pulmonary thromboembolism. Clinical onset of pulmonary embolism was 2 weeks prior to the onset of the veteran’s death on
23 February 1994. The veteran ceased to smoke in 1980 or 1982. Where smoking has ceased the clinical onset of pulmonary thromboembolism must occur within 90 days of cessation of smoking. The veteran had ceased to smoke 12-14 years before clinical onset of pulmonary thromboembolism. The evidence was the pulmonary thromboembolism was related to cholangiocarcinoma not smoking. No hypothesis was raised by the applicant connecting death from pulmonary thromboembolism with service.
The applicant argued that the cause of death was not covered by a SoP. This ground of appeal has no merit and is addressed accurately in the respondent’s submissions. It is not a ground relied upon in the Notice of Appeal.
Section 43(2) of the AAT Act imposes an obligation on the AAT to give reasons for its decision either orally or in writing. Where the AAT gives its reasons for decision in writing it is required to `include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based – s.43(2B).
In Comcare v Lees (1997) 151 ALR 647 at 655 to 659 Finkelstein J set out a number of principles in determining whether the AAT has complied with s.43(2B) of the AAT Act (at 656):
First as Shepard J said in Bisley Investment Corp Ltd v Australian Broadcasting Tribunal (1982) 40 ALR 233; 59 FLR 132 at 157 no standard of perfection is required in their preparation. What is required is that the reasons should be expressed in a clear language so they are capable of being understood: Ansett Transport [Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500] at 507. The reasons need not deal with every detail of the evidence but must set out those parts of the evidence which are important for the conclusions arrived at: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No.1) (1987) 77 ALR 577. The reasons must disclose the reasoning processes of the tribunal: Telescourt v Commonwealth (1991) 29 FCR 227. Finally, in determining whether the reasons are adequate they must be considered fairly and not combed through “with a fine appellate toothcomb to find error”: Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at 291; 136 ALR 481; Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 98 ALR 180 at 187.
The AAT did make findings on material questions of fact and referred to the evidence on which those findings were based. In so doing, it sufficiently indicated the process of reasoning and its findings on material questions of fact in support of its decision (cf McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609). The conclusion reached by it was reasonably open to it.
The AAT has committed no error in finding that the material before it did not raise or point to the requisite hypothesis. Section 119(1)(g) of the VE Act, requiring the Repatriation Commission to act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities, does not require the AAT to take a more benevolent view of the applicant’s case than it otherwise would have done (Grundman v Repatriation Commission [2001] FCA 892 per Gray J at [33]). The AAT determined there was no reasonable hypothesis. That was a decision for the AAT and not for this Court.
I acknowledge the contentions of the respondent which set out succinctly and accurately the legislation, applicable law and history of proceedings in this matter and as adopted in part by me.
No error of law has been disclosed in the reasoning of the AAT and accordingly the application shall be dismissed with costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 16 September 2004
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