FEDERAL COURT OF AUSTRALIA
Robertson v Repatriation Commission [2011] FCA 937
Citation: Robertson v Repatriation Commission [2011] FCA 937 Appeal from: Robertson and Repatriation Commission [2011] AATA 80 Parties: CLARA ROBERTSON v REPATRIATION COMMISSION File number: NSD 239 of 2011 Judge: EDMONDS J Date of judgment: 22 August 2011 Catchwords: ADMINISTRATIVE LAW – veteran’s entitlements – widow’s pension – appeal from decision of Tribunal affirming a decision of the respondent that veteran’s death was not ‘war-caused’ – standard of proof under s 120(4) of the Veterans’ Entitlements Act 1986 (Cth) – identification by the Tribunal of the correct test under the Act in determining veteran’s ‘kind of death’ – no error of law, appeal dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Veterans’ Entitlements Act 1986 (Cth) ss 13, 120, 120A, 196BCases cited: Collins v Repatriation Commission (2009) 177 FCR 280 applied
Hayes v Repatriation Commission [2005] FMCA 125 cited
Hill v Repatriation Commission (2009) 177 FCR 434 applied
Re Martyn and Repatriation Commission [2006] AATA 895 cited
Repatriation Commission v Smith (1987) 15 FCR 327 appliedDate of hearing: 1 June 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 30 Counsel for the Applicant: Mr M Vincent Solicitor for the Applicant: Kemp & Co Lawyers Counsel for the Respondent: Miss RM Henderson Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 239 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: CLARA ROBERTSON
Applicant
AND: REPATRIATION COMMISSION
Respondent
JUDGE:
EDMONDS J
DATE OF ORDER:
22 AUGUST 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The applicant pay the respondent’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 239 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: CLARA ROBERTSON
Applicant
AND: REPATRIATION COMMISSION
Respondent
JUDGE:
EDMONDS J
DATE:
22 AUGUST 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
This application is an appeal from a decision of the Administrative Appeals Tribunal (‘Tribunal’) ([2011] AATA 80) in reliance on s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’).
The Tribunal affirmed a decision of the respondent refusing the applicant’s claim for a widow’s pension under the Veterans’ Entitlements Act 1986 (Cth) (‘Act’) in respect of the death of her late husband, Frederick Charles Robertson (‘Mr Robertson’).
According to the applicant, the question of law raised by the notice of appeal is whether the Tribunal misdirected itself in identifying and/or applying the correct test for determining whether the death of Mr Robertson was a ‘war-caused death’; specifically, whether, by using the expression ‘integral part’ in its Reasons (see [13], [14] and [31]), the Tribunal intended to exclude a medical condition even if it makes a contribution to a death. The applicant submitted that such an intention can be gleaned from a…
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CaseChat Overview and Summary
The case of Robertson v Repatriation Commission involved a claim for a pension by the widow of Mr Robertson, who contended that his death was attributable to war-caused arthritis. Mr Robertson had served in the Australian Army during World War II and developed rheumatism and arthritis during his service. The central issue in the case was whether the death of Mr Robertson was a "war-caused death" and if the Tribunal had correctly applied the appropriate test in making its determination.
The Tribunal had concluded that Mr Robertson’s atrial fibrillation did not play an integral part in his death and that there was no evidence to suggest that any other condition in his death certificate was service-related. The applicant contested this conclusion, arguing that the Tribunal had misdirected itself by using the expression "integral part" and thereby excluding a medical condition that contributed to Mr Robertson’s death. The Court was tasked with determining if the Tribunal's use of the term "integral part" was appropriate and if it had applied the correct test in deciding whether Mr Robertson’s death was war-caused.
The Court examined the Tribunal's application of the term "integral part" in its Reasons and noted that the Tribunal had referred to the need for a condition to be more than merely present, but an integral part of the kind of death. The Court found that the Tribunal had indeed used the expression "integral part" to exclude a condition even if it contributed to the death. However, the Court held that the Tribunal's approach was consistent with the applicable legal principles and was not an incorrect or restrictive test. The Court concluded that the Tribunal's decision was not erroneous and upheld the Tribunal's determination that Mr Robertson’s death was not related to his service.
The Court's decision affirmed the Tribunal's conclusion that Mrs Robertson's claim for a pension must fail as there was no evidence to support that any other condition in Mr Robertson's death certificate was service-related. The Court found that the Tribunal had correctly applied the relevant legal standards in making its determination and did not err in its approach to identifying the kind of death.
The final orders of the Court were to dismiss the appeal, uphold the Tribunal's decision, and affirm that the claim for a pension on the grounds of Mr Robertson’s war-caused death must fail.
The Tribunal had concluded that Mr Robertson’s atrial fibrillation did not play an integral part in his death and that there was no evidence to suggest that any other condition in his death certificate was service-related. The applicant contested this conclusion, arguing that the Tribunal had misdirected itself by using the expression "integral part" and thereby excluding a medical condition that contributed to Mr Robertson’s death. The Court was tasked with determining if the Tribunal's use of the term "integral part" was appropriate and if it had applied the correct test in deciding whether Mr Robertson’s death was war-caused.
The Court examined the Tribunal's application of the term "integral part" in its Reasons and noted that the Tribunal had referred to the need for a condition to be more than merely present, but an integral part of the kind of death. The Court found that the Tribunal had indeed used the expression "integral part" to exclude a condition even if it contributed to the death. However, the Court held that the Tribunal's approach was consistent with the applicable legal principles and was not an incorrect or restrictive test. The Court concluded that the Tribunal's decision was not erroneous and upheld the Tribunal's determination that Mr Robertson’s death was not related to his service.
The Court's decision affirmed the Tribunal's conclusion that Mrs Robertson's claim for a pension must fail as there was no evidence to support that any other condition in Mr Robertson's death certificate was service-related. The Court found that the Tribunal had correctly applied the relevant legal standards in making its determination and did not err in its approach to identifying the kind of death.
The final orders of the Court were to dismiss the appeal, uphold the Tribunal's decision, and affirm that the claim for a pension on the grounds of Mr Robertson’s war-caused death must fail.
Orders
Orders of the court
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Background
Background to the litigation
According to the applicant, the question of law raised by the notice of appeal is whether the Tribunal misdirected itself in identifying and/or applying the correct test for determining whether the death of Mr Robertson was a ‘war-caused death’; specifically, whether, by using the expression ‘integral part’ in its Reasons (see [13], [14] and [31]), the Tribunal intended to exclude a medical condition even if it makes a contribution to a death. The applicant submitted that such an intention can be gleaned from a number of matters and that the Tribunal therefore used ‘a wrong, restrictive test’.FACTUAL BACKGROUND Mr Robertson enlisted in the Australian Army on 3 August 1940, and served in Darwin from 9 April 1942 to 17 March 1943. As a result, the whole of his service in the Army (from 1 October 1941 to 19 March 1946) during World War II is ‘operational service’ for the purposes of the Act: s 6A of the Act. Mr Robertson was admitted to Maitland Hospital on 7 May 2005 and died there on 20 May 2005. The cause of his death and duration of his last illness, according to his death certificate was:I (a) Septicaemia, days (b) Pneumonia, days (c) Cholecystitis, days (d) Cellulitis limb, daysII Atrial fibrillation, days/weeks Part I is explained by reference to the Medical Certificate of Cause of Death:‘Part 1Line (a) Disease orcondition directlyleading to deathLines (b) to (e)Antecedent Causes(morbid conditions, if any, givingrise to the abovementioned cause,stating the underlying condition last’ Part II is explained in the same certificate:‘Part 2Other significantconditions contributing to the death, but not relatedto the disease or condition causing it’ On 27 October 2006, the applicant claimed a pension on the ground that her husband’s death was attributable to war-caused arthritis. Mr Roberson had developed rheumatism and arthritis during service. A delegate of the Commission determined on 27 January 2007 that Mr Robertson’s death was not related to service. The applicant’s request to the Veterans’ Review Board for a review of the delegate’s decision was received on 5 March 2007. She contended before the Board that atrial fibrillation contributed to her husband’s death, and that the atrial fibrillation was war-caused because service caused him to develop an alcohol habit which in turn caused his atrial fibrillation. The Board affirmed the delegate’s decision on 9 July 2008. The applicant applied to the Tribunal for a review on 21 August 2008. On 1 and 2 February 2011 the Tribunal heard evidence from the applicant, Mr Frederick Robertson (the applicant’s son), Dr Anthony Dinnen (consultant psychiatrist), Associate Professor Richard Haber (consultant physician), Dr John Roberts (psychiatrist) and Professor Michael O’Rourke (cardiologist). Associate Professor Haber considered that there was ‘no evidence in the notes to confirm that [the veteran] had a significant infection, in particular septicaemia’. He characterised the veteran’s cholecystitis as ‘an incidental ultrasound finding … not contributing significantly to the cause of his death’.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Professor O’Rourke attributed the veteran’s death to septicaemia, probably affected by cholecystitis, and opined that the veteran’s atrial fibrillation, which had first been diagnosed in 2002 ‘appears not to have been a factor in his deterioration and death’.THE TRIBUNAL DECISION The Tribunal preferred the evidence of Professor O’Rourke to that of Associate Professor Haber, commenting that:‘29.We found Professor O’Rourke particularly thorough and careful in his evidence. He had clearly reviewed and analysed the clinical notes in detail. He has extensive experience in cardiology and could explain the absence of signs considered significant by Dr Haber, and point to others which positively supported the death certificate. For these reasons, we prefer his evidence to that of Dr Haber.’ It expressed its conclusion in the following terms:‘30.Considering all of the evidence, we have on one hand the death certificate supported by clinical notes with no evidence to suggest they do not properly reflect Mr Robertson’s conditions and treatment, and Professor O’Rourke’s evidence. On the other hand is the evidence of Dr Haber.31.In our view, the weight of the evidence supports the conclusion that Mr Robertson’s atrial fibrillation did not play an integral part in his death. As there is no evidence before the Tribunal to indicate any condition other than those in the death certificate led to his death, and as it is not contended that any other condition in his death certificate was service-related, it follows that Mrs Robertson’s claim must fail.’LEGISLATION Section 13 of the Act imposes a liability on the Commonwealth to pay a pension to a veteran’s dependants ‘[w]here … the death of a veteran was war-caused’. Since 1994, the expression ‘kind of death’ has appeared in the Act (see s 120A and s 196B); it refers to ‘the medical cause or causes of death’: Collins v Repatriation Commission (2009) 177 FCR 280 at [47] per Mansfield and Stone JJ; Edmonds J agreeing: [92]. Section 120 prescribes the standard of proof that is to be applied when making various determinations under the Act. When determining a veteran’s ‘kind of death’ the relevant standard is that prescribed by s 120(4), namely, ‘reasonable satisfaction’ – the civil standard: Repatriation Commission v Smith (1987) 15 FCR 327 at 335 per Beaumont J; Northrop and Spender JJ agreeing.THE APPLICANT’S CASE As indicated in [3] above, the applicant’s complaint relates to the Tribunal’s use of the expression ‘integral part’ when approaching the task of determining the kind of death suffered by Mr Robertson. This occurs at [13], [14] and [31] of the Tribunal’s Reasons:‘13.Where multiple medical conditions contribute to a veteran’s death, it is sufficient if one of those conditions is related to service … However, a condition must be more than merely present: it must be an integral part of the kind of death: Hayes v Repatriation Commission [2005] FMCA 125 and see Martyn and Repatriation Commission [2006] AATA 895.14.… [M]edical evidence may support a finding that underlying or contributing causes not cited in the [death] certificate in fact played an integral part in a person’s death: Hill v Repatriation Commission [2009] FCAFC 91 at para 61.…31.In our view, the weight of evidence supports the conclusion that Mr Robertson’s atrial fibrillation did not play an integral part in his death.’
Ratio Decidendi
Legal Principle Established
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