FEDERAL COURT OF AUSTRALIA
Onorato v Repatriation Commission [2011] FCA 1507
Citation: Onorato v Repatriation Commission [2011] FCA 1507 Appeal from: Onorato v Repatriation Commission [2011] AATA 535 Parties: CARMEL ONORATO v REPATRIATION COMMISSION File number(s): NSD 1432 of 2011 Judge: KATZMANN J Date of judgment: 23 December 2011 Catchwords: DEFENCE AND WAR – Veterans’ entitlements – claim for pension by widow of veteran with operational service – whether death of veteran was war-caused – existence of war-caused disease – standard of proof – whether standard of “reasonable satisfaction” or “beyond reasonable doubt” applies – s 120(4) or s 120(3) of the Veterans’ Entitlements Act 1986 (Cth) Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44
Veterans’ Entitlements Act 1986 (Cth) ss 6–6F, 7 8, 9, 13(1)(c), 120(1), (3) and (4), 120A(3), 196BCases cited: Benjamin v Repatriation Commission (2001) 70 ALD 622
Collins v Repatriation Commission (2007) 163 FCR 35
Knight v Repatriation Commission [2010] FCA 1134
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Green [2008] FCA 1614
Roncevich v Repatriation Commission (2005) 222 CLR 115Date of hearing: 27 October 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 46 Counsel for the Applicant: Mr M Vincent Solicitor for the Applicant: Kemp & Co Lawyers Counsel for the Respondent: Ms R M Henderson Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1432 OF 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: CARMEL ONORATO
ApplicantAND: REPATRIATION COMMISSION
Respondent
JUDGE:
KATZMANN J
DATE OF ORDER:
23 DECEMBER 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
3.The respondent pay the applicant’s costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1432 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: CARMEL ONORATO
ApplicantAND: REPATRIATION COMMISSION
Respondent
JUDGE:
KATZMANN J
DATE:
23 DECEMBER 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Joseph Onorato died of ischaemic heart disease at the age of 90 on 2 August 2008. Mr Onorato was a member of the Australian Defence Forces during World War II and served this country as an anti-aircraft gunner. This means that, if his death were war-caused, his dependant widow, Carmel, would be entitled to a pension under Part II of the Veterans’ Entitlements Act1986 (Cth) (“the Act”), s 13(1)(c).
Mrs Onorato applied for the pension but a delegate of the Repatriation Commission refused her claim. She then applied to the Veterans’ Review Board, for a review of that decision but the Board affirmed the delegate’s decision. At that point she sought a review in the Administrative…
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- AGLC
- Onorato v Repatriation Commission [2011] FCA 1507
- Case
- [2011] FCA 1507
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CaseChat Overview and Summary
In the case of Onorato v Repatriation Commission, the central issue revolved around whether the death of the veteran, Mr Onorato, was caused by his war service, thereby warranting a pension for his widow. The dispute was adjudicated by the Federal Court of Australia. Mrs Onorato contended that her late husband's death from ischaemic heart disease was connected to an anxiety disorder and hypertension, both of which she claimed stemmed from his war service. The tribunal had found that Mr Onorato indeed suffered from ischaemic heart disease and hypertension but rejected the claim that he had an anxiety disorder, a finding that Mrs Onorato appealed against.
The legal issues before the court involved the interpretation of sections 9 and 120 of the Veterans’ Entitlements Act 1986 (Cth). Specifically, the court had to determine the standard of proof required to establish that a disease or condition was war-caused, whether this standard was “reasonable satisfaction” or “beyond reasonable doubt,” and the relevance of section 9 in assessing claims for war-caused death. Additionally, the court needed to clarify the extent to which a decision-maker could make factual findings prior to determining whether a veteran's death was connected to their service.
The court ruled that the tribunal's approach to determining whether Mr Onorato's conditions were war-caused was flawed. It held that the tribunal was entitled to make factual findings about the existence of war-caused conditions before assessing the connection to service. Furthermore, the court found that section 9 was relevant to claims for war-caused death. The court allowed the appeal, remitted the matter back to the Administrative Appeals Tribunal for reconsideration in light of these findings, and ordered the respondent to pay the applicant's costs.
The legal issues before the court involved the interpretation of sections 9 and 120 of the Veterans’ Entitlements Act 1986 (Cth). Specifically, the court had to determine the standard of proof required to establish that a disease or condition was war-caused, whether this standard was “reasonable satisfaction” or “beyond reasonable doubt,” and the relevance of section 9 in assessing claims for war-caused death. Additionally, the court needed to clarify the extent to which a decision-maker could make factual findings prior to determining whether a veteran's death was connected to their service.
The court ruled that the tribunal's approach to determining whether Mr Onorato's conditions were war-caused was flawed. It held that the tribunal was entitled to make factual findings about the existence of war-caused conditions before assessing the connection to service. Furthermore, the court found that section 9 was relevant to claims for war-caused death. The court allowed the appeal, remitted the matter back to the Administrative Appeals Tribunal for reconsideration in light of these findings, and ordered the respondent to pay the applicant's costs.
Orders
Orders of the court
1. The appeal be allowed.
2. The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
3. The respondent pay the applicant’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
SoPs are made in respect of particular kinds of injury, disease or death. In the present case it was agreed (and the tribunal found) that the kind of death was death from ischaemic heart disease.The tribunal’s decision Before the tribunal Mrs Onorato contended that her late husband suffered not only from ischaemic heart disease but also from hypertension and an anxiety disorder. Her case was based on the hypothesis that her late husband suffered an anxiety disorder resulting from his war service, and the anxiety disorder caused the hypertension which, in turn, caused the ischaemic heart disease that caused his death. She tendered medical evidence to the effect that he suffered from a “generalised anxiety disorder” or an “anxiety disorder not otherwise specified” according to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). There was no dispute that Mr Onorato died from ischaemic heart disease or as to his hypertension, and the tribunal found he had had both diseases, but the tribunal rejected Mrs Onorato’s claim that her husband had also had an anxiety disorder, however described. The tribunal did not refer to s 8, but to s 9. It stated that the issue of whether a condition is war-caused is determined pursuant to s 9, which it then cited as follows:9 War-caused injuries or diseases(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;but not otherwise.… The tribunal said that, before considering whether any condition Mr Onorato suffered was related to his war service, it had to decide whether he suffered a diagnosable anxiety disorder. It said that that decision was to be made by applying the standard of reasonable satisfaction pursuant to s 120(4) of the Act. Only then would it be required to consider any relevant SoP and apply the standard of proof in s 120(1) and (3). It summarised its decision in the following way:In applying section 120(4) of the Act, and considering the medical evidence before us, we were not satisfied that Mr Onorato suffered from a diagnosable anxiety disorder. Accordingly we were not able to take the matter further, and the application failed.The appeal Appeals to the Court from the tribunal are confined to questions of law: Administrative Appeals Tribunal Act 1975 (Cth), s 44. Two questions of law are particularised in the notice of appeal:(1)Whether, for the purposes of s 120(3) of the Act, and either prior to or in the course of considering whether the material before a decision-maker raises a reasonable hypothesis connecting the death with the service, the decision-maker is entitled to make any factual finding as to the existence of a fact that has been claimed as connecting a veteran’s death with the circumstances of operational service; and(2)Whether s 9 of the Act is relevant to determining a claim for war-caused death.
Ratio Decidendi
Legal Principle Established
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