Repatriation Commission v Hill

Case [2009] FCA 270

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Hill [2009] FCA 270

ADMINISTRATIVE LAW – Veteran’s Entitlements – widow’s pension – appeal from Administrative Appeals Tribunal – whether Tribunal correctly determined the ‘kind of death’ – whether there was an applicable Statement of Principles to the ‘kind of death’ – whether the Court should remit the matter to the Tribunal or make a finding of fact itself

PRACTICE AND PROCEDURE – Costs Certificate – costs of unsuccessful respondent – circumstances in which certificate should be given

Administrative Appeals Tribunal Act 1975 (Cth) s 44
Federal Proceedings (Costs) Act 1981 (Cth) s 6
Veterans’ Entitlements Act 1986 (Cth) ss 8(1), 13(1), 14, 120(1), 120(3), 120A(2) 120A(3), 120A(4), 196B(1), 196B(2)

Bull v Repatriation Commission (2001) 188 ALR 756 cited

Bullock and Others v Federated Furnishing Trades Society of Australasia and Others (No. 2) (1985) 5 FCR 476 cited

Bushell v Repatriation Commission (1992) 175 CLR 408 referred to
Byrne v Repatriation Commission (2007) 242 ALR 620 referred to
Byrnes v Repatriation Commission (1993) 177 CLR 564 cited
Collector of Customs v Pozzolanic Enterprises Pty Ltd; Collector of Customs v Pressure Tankers Pty Ltd (1993) 43 FCR 280 followed
Comcare v Etheridge and Others (2006) 149 FCR 522 referred to
Lees v Repatriation Commission (2002) 125 FCR 331 cited
Repatriation Commission v Codd [2005] FCA 910 cited
Repatriation Commission v Codd (2007) 95 ALD 619 referred to
Repatriation Commission v Cornelius (2002) 35 AAR 345 distinguished
Repatriation Commission v Deledio (1998) 83 FCR 82 referred to
Repatriation Commission v Gorton (2001) 110 FCR 321 referred to
Repatriation Commission v Hancock (2003) 37 AAR 383 referred to
Repatriation Commission v Hill (2002) 69 ALD 581 referred to
Repatriation Commission v McKenna (1998) 52 ALD 72 referred to
Repatriation Commission v Milenz [2007] FCA 50 followed
Repatriation Commission v Smith (1987) 15 FCR 327 referred to
TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (1988) 82 ALR 175 cited
Woodwood v Repatriation Commission (2003) 131 FCR 473 cited

REPATRIATION COMMISSION v MAUREEN HILL

NSD 143 of 2008

COWDROY J
30 MARCH 2009
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 143 of 2008
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MRS JOSEPHINE KELLY AND DR MEC THORPE
BETWEEN:

REPATRIATION COMMISSION
Applicant
AND:

MAUREEN HILL
Respondent

JUDGE:

COWDROY J

DATE OF ORDER:

30 MARCH 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The proceedings be referred to the Administrative Appeals Tribunal, differently constituted, for determination according to law.

3.The Respondent pay the costs of Applicant.

THE COURT CERTIFIES THAT:

1.In the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the Respondent in respect of:

a)    the costs incurred by the Respondent in the appeal from the Administrative Appeals Tribunal which was allowed by order 1 above; and

b)    the costs incurred by the Applicant in relation to the…

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AGLC
Repatriation Commission v Hill [2009] FCA 270
Case
[2009] FCA 270
Decision Date

CaseChat Overview and Summary

In the matter of Repatriation Commission v Hill, the applicant, the Repatriation Commission, appealed a decision of the Veteran’s Affairs Division of the Administrative Appeals Tribunal. The Tribunal had set aside a decision of the Veterans’ Review Board and substituted a decision that the death of Dr John Walker was ‘war-caused’. The respondent, the widow of Dr Walker, had applied for a war widow’s pension under the Veterans’ Entitlements Act 1986 (Cth). The application was initially refused by the Repatriation Commission delegate who found that the veteran’s death was not related to his war service. The Tribunal, however, found that Dr Walker’s death was ‘war-caused’.

The primary legal issue before the court was whether the Tribunal erred in finding that Dr Walker’s death was ‘war-caused’. This involved determining if there was a reasonable hypothesis connecting Dr Walker’s death with his war service, particularly focusing on whether Dr Walker’s heart disease, which the Tribunal found to be unrelated to his death, could be attributed to his war service. The court had to consider the evidence presented and whether the Tribunal correctly applied the statutory provisions, including the standard of proof required under the Veterans’ Entitlements Act 1986.

The court found that the Tribunal had erred in its reasoning by incorrectly identifying the ‘kind of death’ and misapplying the relevant statutory provisions. The court held that the Tribunal should have considered the specific Statement of Principles concerning mesangial IgA glomerulonephritis, which was applicable to Dr Walker’s case. Given that the Tribunal did not consider the relevant SoP and instead relied on the absence of a SoP for heart failure and dementia, the court concluded that the Tribunal’s decision was flawed. The court found that the Tribunal’s failure to consider the applicable SoP led to an incorrect determination that Dr Walker’s death was ‘war-caused’.

The appeal was allowed, the proceedings were referred back to the Administrative Appeals Tribunal for reconsideration, and the respondent was ordered to pay the costs of the applicant. The court also certified that it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the respondent for costs incurred in the appeal to the Tribunal and the costs of the applicant’s appeal to the court.

Orders

Orders of the court

1. The appeal be allowed.

2. The proceedings be referred to the Administrative Appeals Tribunal, differently constituted, for determination according to law.

3. The Respondent pay the costs of Applicant.

THE COURT CERTIFIES THAT:

1. In the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the Respondent in respect of:

a) the costs incurred by the Respondent in the appeal from the Administrative Appeals Tribunal which was allowed by order 1 above; and

b) the costs incurred by the Applicant in relation to the appeal which are required to be paid by the Respondent to the Applicant in pursuance of the above order 3 of the Court.

Note:

Background

Background to the litigation

The applicant (‘the Commission’) appeals from a decision of the Veteran’s Affairs Division of the Administrative Appeals Tribunal (‘the Tribunal’) delivered on 8 January 2008 in which the Tribunal set aside a decision of the Veterans’ Review Board dated 13 April 2006 and substituted a decision that the death of Dr John Walker (‘the veteran’) was ‘war-caused’.FACTS The veteran was born on 10 August 1923. He enlisted in the Royal Australian Air Force and served with the Defence Forces between 9 October 1942 and 11 April 1945. He subsequently qualified as a medical practitioner. He died at The Hills Private Hospital, Baulkham Hills, on 21 June 2003. The veteran was survived by his widow, the respondent. The death certificate issued by the Registry of Births, Deaths and Marriages in Sydney on 30 March 2004 records the cause of death as follows:(I) a) Delirium secondary to acute on chronic renal failure – end stage, 1 yearb) Heart failure, 2 weeks(II) Progressive dementia, 2 years The respondent applied to the Commission for a war widow’s pension pursuant to s 14 of Veterans’ Entitlements Act 1986 (Cth) (‘the VE Act’). The respondent’s application was refused on 20 January 2005 by the Repatriation Commission delegate who determined that the death of the veteran was not related to his war service. The respondent then applied to the Veterans’ Review Board for a review of the delegate’s decision. On 13 April 2006 the Veterans’ Review Board affirmed the decision under review. By Application for Review of Decision dated 7 May 2006 the respondent applied to the Tribunal for a review of the decision of the Veterans’ Review Board. Before the Tribunal, the respondent claimed that the veteran developed a heavy cigarette smoking habit during and as a result of his war service which caused Ischaemic Heart Disease (‘IHD’) (inadequate supply of blood to the heart muscle) which in turn contributed to his death. The Tribunal upheld the respondent’s application, finding that the veteran’s death was ‘war-caused’.STATUTORY FRAMEWORK Section 13(1) of the VE Act provides that the Commonwealth is liable to pay a pension to the dependents of a veteran whose death was ‘war-caused’. Section 8(1) of the VE Act describes the circumstances in which a veteran’s death is to be taken as ‘war-caused’ and includes the circumstances where the ‘death of the veteran arose out of, or was attributable to, any eligible war service’: see s 8(1)(b). The standard of proof to be applied to determine whether a veteran’s death is ‘war-caused’ is stipulated in s 120(1) and (3) of the VE Act which relevantly provides:(1)Where a claim under Part II for a pension in respect of…the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine…the death of the veteran was war‑caused…unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.…(3)In applying subsection (1) or (2)…in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: …(c) that the death was war‑caused……if the Commission, after consideration of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the…death with the circumstances of the particular services rendered by the personNote: This section is affected by section 120A.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

COWDROY J
At the date of the Tribunal’s decision the Authority had also determined a SoP entitled ‘Determination of Statement of Principles Concerning Mesangial IgA Glomerulonephritis’ being Instrument No. 63 of 2001 as amended by No. 75 of 2002 (‘the GN SoP’). Glomerulonephritis is a renal disease characterised by inflammation of the glomeruli, or small blood vessels in the kidneys.THE TRIBUNAL’S DECISION The Tribunal, in setting aside the decision of the Veterans’ Review Board dated 13 April 2006, found that the veteran’s death was ‘war-caused’ as defined in s 8(1) of the VE Act. The Tribunal considered the ‘particular kind of…death’ (see s 196B(2)) suffered by the veteran as referred to in s 120A(2) of the VE Act. It referred to the medical evidence, which was not in dispute, that the veteran developed acute focal necrotising glomerulonephritis, a kidney disease, in 1993 and almost simultaneously developed hypertension in consequence of such condition. In February 1996 the veteran’s renal function was mildly impaired and in November 2000 there was moderate renal dysfunction which deteriorated markedly in 2002. The veteran also suffered a myocardial infarct in 1999. An angiogram revealed triple vessel disease necessitating coronary artery bypass surgery. The veteran suffered cardiac failure in June 2002 associated with a chest infection and deterioration of renal function. The veteran encountered difficulties with his memory from approximately 2000 and by August 2002 he was diagnosed as suffering from a type of Alzheimer’s dementia. Professor O’Rourke, a cardiologist, attributed the veteran’s heart failure at the time of death to glomerulonephritis which caused the veteran’s hypertension and renal failure and maintained that there was no evidence of IHD being a factor in his death. Professor O’Rourke believed that following the veteran’s successful by-pass surgery in 1999 the veteran had made a complete recovery from IHD. Dr Butler, a consultant physician, opined that the effects of the previous myocardial infarct had contributed to heart failure and that there was a likelihood of approximately twenty per cent that the veteran had IHD at the time of his death. The Tribunal made the following finding (at [39]):On the evidence, including that of Professor O’Rourke and Dr Butler, we find that there were two kinds of death: heart failure and kidney failure. We do not consider that either dementia or IHD was a “kind of death”. There is no SoP for either of the kinds of death we have found. Believing that there was no applicable SoP, the Tribunal then considered whether there was a reasonable hypothesis connecting the veteran’s death with his service (at [40]):As there is no SoP, we therefore proceed according to the principles outlined in Bushell and Byrne. Section 120 (3) of the Act provides, inter alia, that, for there to be no sufficient ground for determining Dr Walker’s death was war caused, the material before us must not raise a reasonable hypothesis connecting the injury, disease or death with the service rendered by Dr Walker…

Ratio Decidendi

Legal Principle Established

Established by: COWDROY J

Full text does not contain this section.