Repatriation Commission v Green

Case [2008] FCA 1614

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Green [2008] FCA 1614

REPATRIATION COMMISSION v MILAGROS GREEN

VID 620 of 2006

RYAN J
30 OCTOBER 2008
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 620 of 2006
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

REPATRIATION COMMISSION
Applicant

AND:

MILAGROS GREEN
Respondent

JUDGE:

RYAN  J

DATE OF ORDER:

30 OCTOBER 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The decision of the Administrative Appeals Tribunal (“the Tribunal”) of 8 May 2006 be set aside.

3.The respondent’s application for review of the decision of the Veterans’ Review Board of 18 January 2005 be remitted to the Tribunal differently constituted to be heard and determined according to law.

4.There be no order as to the costs of the appeal.

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

620 OF 2006
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

REPATRIATION COMMISSION
Applicant

AND:

MILAGROS GREEN
Respondent

JUDGE:

RYAN  J

DATE:

30 OCTOBER 2008

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. By notice of appeal filed in this Court on 5 June 2006, the applicant (“the Commission”) has appealed from a decision of the Veterans’ Appeals Division of the Administrative Appeals Tribunal (“the Tribunal”) constituted by Mr Egon Fice, given on 8 May 2006 in Melbourne;  see Milagros Green v Repatriation Commission [2006] AATA 397. By its decision, the Tribunal set aside the decision of the Commission, made under the Veterans’ Entitlements Act 1986 (“the VE Act”), and substituted its own decision that the death of Wallace Henry Green (“the Veteran”) had been war-caused. Further, the Tribunal remitted the matter to the Commission for the purpose of calculating the pension payable to Milagros Green, the respondent who is the Veteran’s widow.

  2. The Veteran was born on 20 August 1923.  He enlisted in the Citizens’ Military Force on 23 July 1942, was transferred to the Australian Imperial Force on 12 July 1943, and was discharged on 23 October 1945.  The Veteran’s service in the Citizens’ Military Force and the Australian Imperial Force was operational service. 

  3. On 1 June 1948, the Veteran enlisted in the Royal Australian Air Force (“the RAAF”) and had a further period of operational service in Japan and Korea between 1 March 1953 and 31 May 1954.  The Veteran was an aircraftsman and his craft was that of an engine fitter.  He was discharged from the RAAF on 23 October 1956.

  4. The Veteran did not make an application to the Commission for a disability pension under Part II of the VE Act, and his application for a service age pension in 1983 was not granted as he was, at that time, resident in the Philippines.

  5. On 14 May 1990, the Veteran married the respondent, who is a citizen of the Philippines.  The Veteran died at 5.40am on 19 May 1992, and his death certificate records that the causes of…

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Repatriation Commission v Green [2008] FCA 1614
Case
[2008] FCA 1614
Decision Date

CaseChat Overview and Summary

The case of Repatriation Commission v Green involved a dispute regarding the entitlement of a veteran's surviving spouse to compensation for the war-caused death of the veteran. The matter was heard in the court, which was required to determine whether the veteran's death, which resulted from a self-inflicted wound or suicide, was war-caused within the meaning of the Veterans' Entitlements Act 1986 (VE Act). The Administrative Appeals Tribunal had previously decided that the death was not war-caused, but this decision was challenged by the Repatriation Commission.

The primary legal issue the court had to decide was whether the veteran's suicide could be considered war-caused under the VE Act. The court examined the relevant provisions of the VE Act and the Statement of Principles (SoP) concerning "Suicide or Attempted Suicide." The SoP outlines specific factors that must be present to establish a connection between suicide and relevant service, such as the veteran being a prisoner of war, suffering from mental health conditions, or experiencing traumatic events during their service.

The court found that the veteran's suicide did not meet the criteria set out in the SoP for a war-caused death. The evidence did not establish a sufficient connection between the veteran's service and the suicide, as none of the specified factors were present at the time of the suicide. Consequently, the court held that the veteran's death was not war-caused, and the surviving spouse was not entitled to compensation under the VE Act.

The appeal was allowed, the decision of the Administrative Appeals Tribunal was set aside, and the matter was remitted to the Tribunal for reconsideration. There was no order as to the costs of the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal (“the Tribunal”) of 8 May 2006 be set aside.

3. The respondent’s application for review of the decision of the Veterans’ Review Board of 18 January 2005 be remitted to the Tribunal differently constituted to be heard and determined according to law.

4. There be no order as to the costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

RYAN J

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Ratio Decidendi

Legal Principle Established

Established by: RYAN J

Accordingly, the respondent sought the following orders;‘a.That the appeal be dismissed;b.That the Applicant pay the Respondent’s costs of the appeal.’Consideration The relevant requirements of the VE Act may be stated shortly. A veteran’s surviving spouse is entitled to compensation for the war-caused death of the veteran. So far as is relevant, s 8 of the VE ACT provides:‘(1)Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war caused if:(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;(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; or…(f)the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war caused injury or a war caused disease, as the case may be.’ It is clear that in the present case the death of the Veteran resulted from a self-inflicted wound or suicide. There is in force a relevant the SoP concerning “Suicide or Attempted Suicide”. The SoP contains the following statements;‘Basis for determining the factors3.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that suicide or attempted suicide can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.Factors that must be related to service4.The factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.Factors5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting suicide or attempted suicide or death from suicide or attempted suicide with the circumstances of a person's relevant service are:(a)being a prisoner-of-war before suicide or attempted suicide; or(b)suffering from depression at the time of suicide or attempted suicide; or(c)suffering from post traumatic stress disorder at the time of suicide or attempted suicide; or(d)suffering from psychoactive substance abuse or dependence involving alcohol at the time of suicide or attempted suicide; or(e)suffering from schizophrenia at the time of suicide or attempted suicide; or(f)suffering from borderline personality disorder at the time of suicide or attempted suicide; or(g)having experienced, witnessed, or been confronted with a traumatic event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, within the two years immediately before suicide or attempted suicide; or(h)experiencing a severe psychosocial stressor or stressors within the two years immediately before the suicide or attempted suicide.’