Norton and Repatriation Commission
[2011] AATA 195
•24 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 195
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3016
VETERANS’ APPEALS DIVISION ) Re Lorraine Norton Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal J W Constance, Deputy President Date24 March 2011
PlaceMelbourne
Decision The decision of the Veterans’ Review Board made 9 June 2010 is affirmed.
.....(Sgd. J. W. Constance)............
Deputy President
VETERANS’ ENTITLEMENTS ACT 1986 – war widow’s pension – whether death was war caused – Deledio test – primary hepatocellular (liver) adenocarcinoma with bony metastases – issue previously decided by Administrative Appeals Tribunal – decision affirmed.
Administrative Appeals Tribunal Act (Cth) 1975 ss 25(4A) and 2A
Veterans’ Entitlements Act 1986 (Cth) s 8, 13(1), and 120Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374
Re Norton v Repatriation Commission (2010) 115 ALD 187
Repatriation Commission v Deledio (1998) 49 ALD 193
REASONS FOR DECISION
24 March 2011 J W Constance, Deputy President INTRODUCTION
1. Mrs Norton is the widow of the late Mr Goodwin who served in Vietnam as a member of the Australian Army between April 1969 and March 1970
2. Mrs Norton has applied for a war widow’s pension under the Veterans’ Entitlements Act 1986 (Cth). Her application was refused by the Repatriation Commission and this refusal has been affirmed by the Veterans’ Review Board. Mrs Norton now seeks a review of the Board’s decision by this Tribunal.
3. I have decided to affirm the decision under review on the basis that the issue before the Tribunal in this application has been determined previously by the Tribunal and should not be re-agitated. My reasons for this conclusion follow.
THE ISSUE IN DISPUTE
4. By agreement of the parties, on 28 January 2011 the Tribunal made the following direction:
Pursuant to s 25(4A) of the Administrative Appeals Tribunal Act 1975 the review of the decision under review is limited to a consideration of the issue of whether the death of the late Mr Perrin J Goodwin was war caused within Veterans’ Entitlements Act 1986…
FACTS
5. The parties agreed that the relevant facts are contained in a number of documents which are set out in a second direction made by the Tribunal on 28 January 2011. I make the following findings of fact based on those documents. I am satisfied of the facts found on the balance of probabilities.
6. The late Mr Goodwin was a member of the Australian Army from 1 May 1968 and 30 April 1970. He served in Vietnam from 2 April 1969 until 4 March 1970.
7. Mr Goodwin died on 30 November 2006. On 22 December 2006 Mrs Norton, as executor of the estate of the late Mr Goodwin, applied to this Tribunal for a review of a decision of the Veterans’ Review Board which affirmed a decision of the Repatriation Commission rejecting his claim for acceptance of malignant neoplasm of the liver.
8. On 2 January 2008 the Tribunal affirmed the decision of the Commission. On 5 August 2008 the Tribunal’s decision was set aside by the Federal Court and the matter remitted to the Tribunal to be re-heard. After re-hearing the application the Tribunal decided again to affirm the Board’s decision, “…save that the description of liver cancer, namely, malignant neoplasm of the liver is amended and should, having regard to the evidence heard in these proceedings be recorded as primary hepatocellular (liver) adenocarcinoma with bony metastases.”[1] This decision was made on 27 April 2010 and I will refer to it as “the first decision”.
[1] Re Norton v Repatriation Commission (2010) 115 ALD 187.
9. On 19 July 2010 Mrs Norton applied to the Tribunal for a review of another decision of the Veterans’ Review Board. On this occasion she sought a review of a decision affirming the rejection of her claim for a widow’s pension consequent upon the death of the late Mr Goodwin. It was this application which came on for hearing before me on 4 February 2011 and which is the subject of this decision.
10. At the hearing of this application the parties agreed that the cause of Mr Goodwin’s death was primary hepatocellular (liver) adenocarcinoma with bony metastases, being precisely the cause of death determined by the Tribunal in the first decision.
11. The only evidence before me on the hearing which was not before the Tribunal when it made the first decision was an undated statement by Mr Graeme Goodwin,[2] apparently made shortly before 4 November 2010. This statement reads:
To Whom it May Concern
My late brother, Perrin James Goodwin, was in a steady relationship with a girl in Birchip before he was called up for National Service training. During his training prior to going to Vietnam, he travelled home to Birchip as often as he could to see his girlfriend. It was while he was serving in Vietnam that she broke off their friendship. I make this statement in the clear understanding that the utterance of false statements is ethically and morally wrong.
[2] Exhibit A2.
THE COMMISSION’S ARGUMENT
12. The Commission argued that the Tribunal “should exercise its discretion to decline to revisit the question of whether the “primary hepatocellular (liver) adenocarcinoma with bony metastases” was “war-caused” for the purposes of section 8 of the Veteran’s Entitlement Act 1986 [sic] … in circumstances where:
ithat question has already been considered and determined by the Tribunal in Norton v Repatriation Commission [2010] AATA 298 (the 2010 decision);
iithere is no new evidence, no change in circumstances, no relevant change in the law or the manner in which it is understood and applied by the courts and the Tribunal. [3]
[3] Respondent’s Submissions 4.02.2011 page 3.
MRS NORTON’S ARGUMENT
13. It was argued on behalf of Mrs Norton that if the Tribunal had such discretion it should not be exercised in these circumstances. It was put that the statement of Mr Graeme Goodwin was new evidence which should be considered as part of the review of the Commission’s decision in this application.
THE LEGISLATION
14.Section 13(1) of the Act provides:
(1)Where:
(a) the death of a veteran was war-caused; or
(b) a veteran is incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or
(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
15. This is the section of the Act under which Mr Goodwin claimed to be eligible for a pension, on the basis that he was incapacitated from a war-caused disease. Under the same section Mrs Norton claims to be entitled to a pension on the basis that Mr Goodwin’s death was war-caused. It is clear that the issue in each application was whether the hepatocellular (liver) adenocarcinoma with bony metastases suffered by Mr Goodwin was “war-caused”. There is no dispute between the parties that the cause of Mr Goodwin’s death was the hepatocellular adenocarcinoma.
16. In accordance with section 120 of the Act the standard of proof required in the first decision and in this application (should it proceed to the requisite stage) is the same. Further, in both matters the Tribunal was, or would be, (as the case may be) required to consider whether there was/is a reasonable hypothesis connecting the disease/death of the veteran to his operational war service.
REASONING
17. It is clear that in considering both a claim for a pension by a veteran and a claim by a widow for a pension consequent upon the death of the veteran, the Tribunal must determine whether the material before it in each application “…points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.”[4] If it does the Tribunal must then determine whether the hypothesis is a reasonable one. The Tribunal does this by deciding whether the hypothesis fits within the template set out in the applicable Statement of Principles (if any).
[4] Repatriation Commission v Deledio (1998) 49 ALD 193.
18. If it is decided that the hypothesis is reasonable the Tribunal must consider whether it is satisfied beyond a reasonable doubt that the incapacity or death in respect of which the claim is made was not war-caused.
19. One of the 4 hypotheses considered by the Tribunal in the first decision was described by the Tribunal as follows:
“… service -> alcohol ->malignant neoplasm of the liver.”[5]
[5] Re Norton 115 ALD 187 at 190 at [9].
20. The hypothesis put to the Tribunal on behalf of Mrs Norton in this application was that the late Mr Goodwin was a reluctant soldier who commenced to consume alcohol on a regular basis to relieve the tensions of service and that his excessive consumption of alcohol caused him to suffer malignant neoplasm of the liver.
21. I am satisfied that these 2 hypotheses are the same. Counsel for Mrs Norton did not argue to the contrary.
22. In the first decision the Tribunal was satisfied “…beyond reasonable doubt (refer 4th stage of Deledio analysis) that the deceased did not suffer incapacity by war caused injury or disease.”[6] If I was to decide in this application that the first 3 steps of the Deledio analysis were satisfied I would then be required to decide exactly the same question as has already been decided by the Tribunal in the first decision, except that the question would relate to the death of the late Mr Goodwin rather that to the disease which caused his death. This distinction is irrelevant for the purposes of this application.
[6] Re Norton 115 ALD 187 at 218 at [161].
23. As a general rule when the Tribunal decides an issue between two parties then, subject to an appeal, this should normally be the end of the matter in the Tribunal. The Administrative Appeals Tribunal Act 1975 (Cth) provides for such an appeal process. This should be the means of challenging a decision of the Tribunal. In most situations it is not appropriate to endeavour to challenge a decision by seeking a re-hearing of the same issue before the Tribunal, whether or not the Tribunal is differently constituted. To permit Mrs Norton to have the issue I have referred to once again determined would be to undermine the principle of certainty in administrative decision-making. It would be also contrary to the requirements of s.2A of the Act that the Tribunal “…pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”
24. It was argued on behalf of Mrs Norton that I should reconsider the issue of whether the late Mr Goodwin’s death was war-caused because there is new evidence available to me that was not available to the Tribunal which made the first decision.
25. The only new evidence is contained in the statement of Mr Graeme Goodwin, which I have set out in full earlier in these reasons. However not all of his evidence is new. In the first decision the Tribunal considered the argument that the late Mr Goodwin had suffered stress by reason of his girlfriend ending their relationship about one month after he arrived in Vietnam. Mr Goodwin recorded this fact in a letter of 24 September 2003. The Tribunal decided that “[i}t is impossible to discern from that description whether there was any reaction by the deceased to the contents of the letter and if so, what it was.”[7]
[7] Re Norton 115 ALD 187 at 217 at [155].
26. The evidence that may not have been before the Tribunal previously was that during his training prior to going to Vietnam the late Mr Goodwin would travel to his home town as often as he could to see his girlfriend. It was put to me that this provided some evidence to suggest that the late Mr Goodwin did not increase his rate of consumption of alcohol until after he arrived in Vietnam.
27. I agree that the existence of new evidence may be a reason to have an issue determined by the Tribunal for a second time. However the new evidence should be such as to raise a reasonable possibility that the later Tribunal could reach a different decision. In this case the additional evidence does not address the question of the effect of the cessation of the relationship on the late Mr Goodwin.
28. I find support for the conclusion I have reached in the judgement of the Full Court of the Federal Court in Morales v Minister for Immigration and Multicultural Affairs:[8]
The procedural flexibility that the ATT Act gives to the Tribunal has been seen as a source of power not to allow a matter finally determined before it to be relitigated (see Comcare Australia v Grimes at 67; 592 per Wilcox J and Re Quinn and Australian Postal Corporation at 525-526), and it has been suggested that s 33 provides a series of bases on which the Tribunal can decline to revisit previously determined matters or, as the situation demands, reconsider the totality of the matter or some aspect of it.
…
In our view, the essentially administrative nature of the Tribunal’s function and the nature of its task in looking to the correct or preferable decision, in circumstances where it is to have regard amongst other things to the dictates of fairness, point to the conclusion that the Tribunal may, in appropriate circumstances, conclude that a previous decision should be applied again as the correct and preferable decision when it is sought to revisit the earlier decision at some later time.
[8] (1998) 82 FCR 374 at 390.
29. For these reasons I have decided that this is not a matter in which it is appropriate to have the issue of whether the disease which caused the death of the late Mr Goodwin was war-caused determined for a second time by this Tribunal. Rather it is a proper case in which to apply the determination of the Tribunal made in the first application.
DECISION
30.The decision of the Veterans’ Review Board made 9 June 2010 is affirmed.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of
J W Constance, Deputy President
Signed: .......(Sgd K Peterson)..................
K. Peterson, AssociateDate of Hearing 4 February 2011
Date of Decision 24 March 2011
For the Applicant Mr J Horan
Counsel for the Respondent Ms C Dowsett
Solicitor for the Respondent Ms C Madden, Australian Government Solicitor
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