Re: REPATRIATION COMMISSION And: BELLE WHETTON No. N G193 of 1991 FED No. 611 Veterans' Affairs (1991) 31 FCR 513, (1991) 14 AAR 289, (1991) 24 ALD 33
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION Beaumont(1), Burchett(1) and Lee(1) JJ.
CATCHWORDS
Veterans' Affairs - death of veteran - widow's pension - connection between physical condition and war service - meaning of reasonable hypothesis in s.120(3) - whether facts raised a reasonable hypothesis - "plausible" hypothesis - meaning of "plausible" in this context.
Veterans' Entitlement Act 1986, s.120(1) and (3).
HEARING
SYDNEY
#DATE 14:10:1991
Counsel for the Appellant: Miss M.J. Beazley QC with
Miss R.M. Henderson
Solicitors for the Appellant: Australian Government Solicitor
Counsel for the Respondent: Mr A.T. McInnes QC
with Mr A.L. Hill
Solicitors for the Respondent: Messrs Kenneth Harrison
ORDER
The orders made by Einfeld J. on 5 April 1991 be varied by setting aside orders 2 and 3 and by ordering in lieu thereof that the respondent's claim be granted. Otherwise, the appeal is dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The late Frank Richard Whetton, who died on 13 August 1986, had served in the Royal Australian Navy from 13 July 1936, throughout World War II, and until 17 August 1948. On 9 August 1942, he received multiple wounds in the sinking of HMAS Canberra in the battle of Guadalcanal. After his death, his widow Isabel Lena Whetton (the respondent, referred to in the Administrative Appeals Tribunal, and consequently in these proceedings, as Belle Whetton) made a claim for a pension which fell to be determined in accordance with the provisions of s. 120 of the Veterans' Entitlements Act 1986. The claim was rejected. Following its further rejection by a decision of a senior member of the Administrative Appeals Tribunal, the question whether that decision involved an error of law came before a judge of this court, who upheld Mrs Whetton's appeal. From the decision of the judge, the Repatriation Commission now appeals to this full court.
Section 120 is well known, but it is convenient to set out here subss. (1) and (3) of the section, as follows:
"120. (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.
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the 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. Whetton, B. [1991] FCA 611 ((1991) 31 FCR 513; (1991) 14 AAR 289; (1991) 24 ALD 33)
Case
[1991] FCA 611
Decision Date
CaseChat Overview and Summary
The case of Repatriation Commission v Whetton involved a dispute between the Repatriation Commission and a veteran's widow over a pension claim. The widow sought a pension following her husband's death, asserting that his death was connected to his war service. The case was heard in the Federal Court of Australia.
The central legal issue in this case was the interpretation of section 120(3) of the relevant legislation, specifically concerning the meaning of "reasonable hypothesis" and the threshold for establishing a connection between the veteran's physical condition and his war service. The court had to determine whether the facts presented by the widow raised a reasonable hypothesis that her husband's death was connected to his war service, and if so, whether this hypothesis was plausible.
The Federal Court held that the widow had established a reasonable hypothesis that her husband's death was connected to his war service. The court found that the facts presented were sufficient to raise such a hypothesis and that this hypothesis was plausible. The court concluded that the widow was entitled to the pension she sought. The decision emphasised the importance of considering the overall circumstances and evidence presented to determine the plausibility of the hypothesis.
The court varied the orders made by Einfeld J. by setting aside orders 2 and 3 and ordering in lieu thereof that the respondent's claim be granted. The appeal was otherwise dismissed with costs. The final orders reflected the court's determination that the widow was entitled to the pension and that the Repatriation Commission's appeal should be dismissed.
Orders
Orders of the court
The orders made by Einfeld J. on 5 April 1991 be varied by setting aside orders 2 and 3 and by ordering in lieu thereof that the respondent's claim be granted. Otherwise, the appeal is dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.