O'Connor and Repatriation Commission - [2001] AATA 11

DECISION AND REASONS FOR DECISION [2001] AATA 11

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1999/390

VETERANS' APPEALS DIVISION       )
           Re      Maria Isabel O'CONNOR
  Applicant
           And    REPATRIATION COMMISSON
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date11 January 2001
PlaceSydney

Decision        The decision under review is affirmed.
  ..............................................
  M T Lewis,
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – war widows' pension – whether death of Veteran war-caused – Veteran died from ischaemic heart disease – Statement of Principles applied – smoking relevant factor in Statement of Principles – whether Veteran's smoking habit causally related to service

Veterans' Entitlements Act 1986 – ss 120(1), 120(3), 120A
Statements of Principles – Instrument No. 140 of 1996 and No. 38 of 1999

Keeley v Repatriation Commission (1999) 30 AAR 48
Repatriation Commission v Keeley (2000) 98 FCR 108
Dixon v Repatriation Commission (1999) 29 AAR 235
Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

11 January 2001 Mrs M T Lewis, Senior Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 6 January 1998 that the death of James Rochford O'Connor ("the Veteran") was not due to war service. Marie Isabel O'Connor ("the Applicant") sought review by the Veterans' Review Board ("the VRB"), and on 15 January 1999 the VRB affirmed the decision of the Respondent. The Applicant then lodged an application for review by this Tribunal on 16 March 1999.
At the hearing the Tribunal had before it the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The Applicant gave oral evidence at the hearing and her daughter, Mrs Lorraine Quinn, gave oral evidence by conference telephone.
background
The Veteran was born on 12 June 1908. He served in the Australian Army from 7 September 1940 to 1 March 1946, including overseas service. He died on 12 March 1982 of a myocardial infarction and ischaemic heart disease. The Applicant lodged a claim for war widow's pension in 1982 that was refused by a Repatriation Board. The Applicant lodged a second claim for war widow's pension on 8 December 1997, and it is that claim that is now the subject of this review.
legislation and issues
The Veteran had operational service, and therefore this application falls to be determined pursuant to ss120(1) and (3) of the Veterans' Entitlements Act 1986 ("the Act"). Those subsections provide:
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying…

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 O'Connor and Repatriation Commission

Details

AGLC: O'Connor and Repatriation Commission [2001] AATA 11
Case: [2001] AATA 11
Decision Date: 11 January 2001

CaseChat Overview and Summary

The case of O'Connor and Repatriation Commission involved a dispute regarding the eligibility of a war widow's pension. The central issue was whether the death of the veteran, who died from ischaemic heart disease, was caused by his military service. This determination hinged on the application of relevant Statements of Principles and the causal relationship between the veteran's smoking habit and his military service. The relevant legislation included sections 120(1), 120(3), and 120A of the Veterans' Entitlements Act 1986, as well as Statements of Principles No. 140 of 1996 and No. 38 of 1999. The case drew on precedents such as Keeley v Repatriation Commission, Repatriation Commission v Keeley, and Dixon v Repatriation Commission.

The court had to determine if a reasonable hypothesis connecting the veteran's death to his service could be formed, considering the evidence and inconsistencies presented. The process involved several steps as outlined in Repatriation Commission v Deledio. Initially, the court examined whether the evidence presented a hypothesis linking the veteran's death to his service. If such a hypothesis existed, the court then checked if a relevant Statement of Principles was in force. Next, the court assessed whether the hypothesis was reasonable, fitting within the template of the applicable Statement of Principles. Finally, the court had to determine if it was satisfied beyond reasonable doubt that the veteran's death was not war-caused.

In reaching its decision, the court highlighted that it was the responsibility of the Tribunal to ascertain whether the hypothesis was reasonable, which involved checking if it fit within the framework provided by the relevant Statement of Principles. The court also stressed the importance of deferring factual determinations until the final step of the process, where the Tribunal must be satisfied beyond reasonable doubt that the death was not war-caused. The evidence of the veteran's smoking habit was noted as a relevant factor, and the court had to weigh this against the overall hypothesis.

The court ultimately concluded that the hypothesis connecting the veteran's death to his service was reasonable, and it was not satisfied beyond reasonable doubt that the death was not war-caused. Therefore, the claim for the war widow's pension was upheld. The court's decision emphasised the structured approach to determining the eligibility of war-related benefits, ensuring that all relevant factors, including those outlined in Statements of Principles, were considered appropriately.

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

The Respondent submitted that there is not a lot of evidence in this case but there are a lot of inconsistencies. On that basis the Respondent submitted that a reasonable hypothesis had not been made. The Respondent submitted that there were some credibility problems with both witnesses. consideration of evidence and findings of fact In Dixon v Repatriation Commission (1999) 29 AAR 235, Wilcox J held that it was erroneous for the Tribunal to consider the integrity of the Applicant's evidence at the stage of addressing the reasonableness of a hypothesis, since this should be left to the final stage of its reasoning process in deciding it was satisfied beyond reasonable doubt that a claim which fitted the factors in a relevant Statement of Principles was without justification pursuant to s120(1) of the Act in accordance with the following test established in Repatriation Commission v Deledio (1998) 83 FCR 82, (at 97, 98) –1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3. If a SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail. 4. The Tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process 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. Wilcox J in Dixon stated that in determining step 2 of the Deledio test, the decision maker is not concerned with the accuracy of the material giving rise to the hypothesis, as the decision maker is still operating under s120(3); it is only at step 4 of the test that it is necessary to find facts from the material before it and that the truth of claims is a step to be carried out in the obligation imposed at that stage by s120(1) to decide whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Veteran's death was war-caused.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.