SOCIAL SECURITY – Appeal from decision of Administrative Appeals Tribunal – Pension Entitlement for dependent spouse of veteran – alcoholism – whether reasonable hypothesis connecting veteran’s death and service – application of principles relevant to analysis – error of law
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR J HANDLEY, SENIOR MEMBER
BETWEEN:
REPATRIATION COMMISSION Applicant
AND:
KATHLEEN CODD Respondent
JUDGE:
GORDON J
DATE OF ORDER:
15 JUNE 2007
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The decision of the Administrative Appeals Tribunal made on 24 October 2006 is set aside.
3.The matter is remitted to the Administrative Appeals Tribunal to be heard and determined according to law by a differently constituted Tribunal.
4.There is no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 1287 OF 2006
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR J HANDLEY, SENIOR MEMBER
BETWEEN:
REPATRIATION COMMISSION Applicant
AND:
KATHLEEN CODD Respondent
JUDGE:
GORDON J
DATE:
15 JUNE 2007
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION
The Repatriation Commission…
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.
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Details
AGLC
Repatriation Commission v Codd [2007] FCA 877
Case
[2007] FCA 877
Decision Date
CaseChat Overview and Summary
The case of Repatriation Commission v Codd involved Mrs Codd, the widow of Ronald Codd, who sought a war widow’s pension following the death of her husband, a veteran who had served in the Australian Army. The veteran’s death was caused by multiple injuries including brain damage after being struck by a train at a level crossing. Mrs Codd made multiple claims for a war widow’s pension, all of which were initially rejected. Ultimately, the matter was referred to the Administrative Appeals Tribunal (AAT) which found that the veteran's death was war-caused. The Repatriation Commission appealed this decision to the court, arguing that the AAT had erred in its interpretation of the relevant legislation.
The central legal issues in the appeal revolved around the proper construction of sections 120, 120A(3) and 120A(4) of the Veterans' Entitlements Act 1986 (Cth) and, specifically, the meaning of the phrase "kind of death" in section 120A(4). The Commission argued that the AAT misconstrued the legislation by identifying the "kind of death" as a road accident, rather than a war-caused death due to the veteran’s exposure to hazardous conditions during service. The court was tasked with determining whether this construction was legally sound and if the AAT had applied the correct legal principles in reaching its decision.
In its analysis, the court found that the AAT had indeed erred in its interpretation of the statutory language. The court held that the phrase "kind of death" should be construed in the context of the veteran's war service and the circumstances that arose from it, rather than the specific manner of the veteran's death. This misconstruction led to the AAT’s decision being legally flawed. Consequently, the court allowed the appeal and set aside the AAT's decision. The matter was to be remitted to the AAT for reconsideration by a differently constituted tribunal. There was no order regarding costs.
Orders
Orders of the court
1. The appeal is allowed.
2. The decision of the Administrative Appeals Tribunal made on 24 October 2006 is set aside.
3. The matter is remitted to the Administrative Appeals Tribunal to be heard and determined according to law by a differently constituted Tribunal.
4. There is no order as to costs.
Background
Background to the litigation
For the reasons that follow, the appeal should be allowed and the decision of the Tribunal of 24 October 2006 must be set aside. These reasons are structured as follows:(1) Factual background to the appeal: paras [4] to [8];(2) The legislative framework: paras [9] to [24];(3) The Tribunal’s decision: paras [25] to [28];(4) The questions of law: paras [29] to [30];(5) Analysis: paras [31] to [51];(6) Conclusion: paras [52] to [53].FACTUAL BACKGROUND TO THE APPEAL Mrs Codd, the applicant, is the widow of Ronald Codd, the veteran. The veteran served in the Australian Army from 5 October 1942 until 9 August 1946. All of the veteran’s service was operational service. He saw service as a stretcher bearer and was exposed to horrifying events. The veteran’s war-caused diseases were chronic eczema, mild labile hypertension and infected tonsils. On 7 December 1968, the veteran was killed when a truck driven by him was struck by a train at a level crossing in Benalla, Victoria. The post mortem found that the cause of death was “Multiple Injuries including brain damage”. On 12 December 1968, Mrs Codd was unsuccessful in a claim for a war widow’s pension under the Repatriation Act1920 (Cth) (“the Repatriation Act”). On 17 July 1985, Mrs Codd made a second claim for a war widow’s pension under the Repatriation Act. The Veterans’ Review Board (“the VRB”) affirmed the Commission’s decision that the death of the veteran was not war-caused. On 30 March 2001, Mrs Codd made a third claim for a war widow’s pension under the Repatriation Act. A delegate of the Commission decided that the veteran’s death was not war-caused. On 10 October 2002, the VRB affirmed the Commission’s decision that the death of the veteran was not war-caused. On 19 December 2002, pursuant to s 175 of the VE Act, Mrs Codd applied to the Tribunal for review of the VRB’s decision of 10 October 2002. On 20 August 2004, the Tribunal decided that the death of the veteran was war-caused. On 30 June 2005, the Federal Court allowed an appeal by the Commission from the decision of the Tribunal, on the basis that material before the Tribunal could not support the Tribunal’s diagnosis of generalised anxiety disorder (“GAD”) and that if the veteran had been suffering from GAD, the Tribunal had failed to consider whether a hypothesis of connection between that disease and the veteran’s operational service was upheld by the relevant Statement of Principles (“SoP”): Repatriation Commission v Codd [2005] FCA 888 at [46]-[47] and [49]. The Court remitted the matter to the Tribunal to be heard and determined according to law. On 24 October 2006, the Tribunal decided again, on different grounds, that the death of the veteran was war-caused. On 20 November 2006, the Commission appealed from the Tribunal’s decision. It is the Tribunal’s decision of 24 October 2006 which is the subject of this appeal.THE LEGISLATIVE FRAMEWORK Section 13(1) of the VE Act renders the Commonwealth liable to pay a pension to the dependents of a veteran whose death was war-caused. Section 8(1) of the VE Act sets out the circumstances in which a veteran’s death is taken to be war-caused. They include if:“(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; …” (Emphasis added.)
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GORDON J
It is the second of these additional steps which is the subject of this appeal. It will be necessary to return to consider the phrase “kind of death met by the [veteran]” in s 120A(4) of the VE Act.THE TRIBUNAL’S DECISION The Tribunal decided that the death of the veteran was war-caused. The hypothesis of connection between the veteran’s death and his operational service was articulated by Dr Epstein in the following terms:“[The veteran’s] drinking habits were probably war caused and there is a reasonable hypothesis pointing to the effects of alcohol impairing his concentration and contributing to the collision.” The hypothesis was summarised “as the late veteran developing a service related alcohol habit the effects of which impaired his concentration and contributed to the fatal collision.” It was that hypothesis the Tribunal accepted as a reasonable hypothesis connecting the veteran’s death with the circumstances of his war-service. The Tribunal declared that the “kind of death” met by the veteran was death by road accident. The Commission contends that on a proper construction of ss 120 and 120A of the VE Act, the Tribunal’s finding that the kind of death met by the veteran was “death by road accident” was not open to the Tribunal. As a result of the Tribunal’s declaration of the “kind of death” as death by road accident, the Tribunal:(1)found that there was no SoP which applied to that kind of death and proceeded on the basis that the application was to be determined by the law prevailing before the introduction of the regime of SoPs; and(2)not being satisfied beyond reasonable doubt that there were sufficient grounds to determine that the death was not war-caused, set aside the decision under review and decided that the death was war-caused.QUESTIONS OF LAW The Commission contends that the Tribunal’s reasons for decision contain two errors of law and therefore, on appeal, raise two questions of law:(1)the proper construction of ss 120, 120A(3) and 120A(4) of the VE Act and, in particular, the meaning of the phrase “kind of death” in s 120A(4) of the VE Act;(2)even if the Tribunal had properly construed ss 120, 120A(3) and 120A(4) of the VE Act and, in particular, the meaning of the phrase “kind of death” in s 120A(4) of the VE Act in finding that the kind of death met by the veteran was “death by road accident”, whether the Tribunal erred in failing to determine the application of pension by applying the reasoning of Goldberg J in Repatriation Commission v McKenna (1998) 28 AAR 7 at 15-16 which was endorsed by the Full Court in McKenna v Repatriation Commission (1999) 86 FCR 144 at [20]. (I will describe this as the “McKenna principle”). The respondent contended that the Tribunal’s finding of the “kind of death” as death by road accident was a finding of fact which was ‘unimpeachable’. That submission should be rejected. For the reasons that follow, it is apparent that in making that finding, the Tribunal erred in the proper construction of ss 120, 120A(3) and 120A(4) of the VE Act and, in particular, the meaning of the phrase “kind of death” in s 120A(4) of the VE Act. That is an error of law: Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 at 394-5.ANALYSIS(1) Proper construction of ss 120, 120A(3) and 120A(4) of the VE Act and, in particular, the meaning of the phrase “kind of death” in s 120A(4) of the VE Act