Roscoe v Repatriation Commission

Case [2003] FCA 1568

FEDERAL COURT OF AUSTRALIA

Roscoe v Repatriation Commission [2003] FCA 1568

VETERANS’ ENTITLEMENTS – pension – death of veteran – whether war-caused – death from leiomyosarcoma – suggested connection to war service through veteran’s smoking habit, acquired during that service – whether veteran rendered operational service – effect of short voyage outside Australia as part of journey to place of service in Australia – connection between cause of death and war service – whether reasonable hypothesis – application of Statements of Principles – whether Tribunal applied correct standard of satisfaction – Tribunal applied beyond reasonable doubt standard – whether should have applied balance of probabilities standard – whether error affected outcome of case

Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)
Veterans’ Entitlements Act 1986 (Cth) ss 6A, 8, 13, 14, 19, 120, 120A, 120B

Repatriation Commission v Kohn (1989) 87 ALR 511 applied
Repatriation Commission v Deledio (1998) 83 FCR 82 referred to
Proctor v Repatriation Commission [1999] FCA 32 (1999) 54 ALD 343 applied

MARY MURIEL ROSCOE v REPATRIATION COMMISSION
V 571 of 2002

GRAY J
23 DECEMBER 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 571 of 2002

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

MARY MURIEL ROSCOE
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

GRAY J

DATE OF ORDER:

23 DECEMBER 2003

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The applicant pay the respondent’s costs of the proceeding.

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

V 571 of 2002

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

MARY MURIEL ROSCOE
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

GRAY J

DATE:

23 DECEMBER 2003

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The nature of the proceeding

  1. This appeal from the Administrative Appeals Tribunal (‘the Tribunal’) is by a widow, who seeks to establish that the death of her late husband was war-caused. By s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the appeal is limited to a question of law.

  2. On 16 August 1999, the applicant lodged a claim with the respondent, the Repatriation Commission (‘the Commission’), claiming a pension pursuant to the Veterans’ Entitlements Act 1986 (Cth) (‘the VE Act’) as a result of the death of her husband (‘the veteran’) on 6 July 1999. On 20 August 1999, the Commission determined that the death of the veteran was not war-caused. The applicant’s application for review of that decision by the Veterans’ Review Board was unsuccessful. The decision of the Veterans’ Review Board was given on 17 July 2000. The applicant then applied to the Tribunal for merits review of the decision. The Tribunal heard the application on 16 July 2002. On 9 August 2002, the Tribunal published its decision and its reasons for decision. It also rejected the claim and affirmed the decision under review. It is from that decision of the Tribunal that the applicant now…

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AGLC
Roscoe v Repatriation Commission [2003] FCA 1568
Case
[2003] FCA 1568
Decision Date

CaseChat Overview and Summary

In the case of Roscoe v Repatriation Commission, the applicant, a widow, appealed against the decision of the Administrative Appeals Tribunal (the Tribunal) which had dismissed her claim for a pension under the Veterans’ Entitlements Act 1986 (Cth). The widow argued that her husband's death was connected to his war service, specifically through his smoking habit acquired during his service. The Tribunal, however, rejected her claim, finding that there was no reasonable hypothesis connecting her husband's death to his war service.

The primary legal issue was whether the veteran's death was connected to his war service. The Tribunal had to decide if the widow could succeed under the statutory provisions which provide different thresholds for proving the connection depending on whether the service was classified as "operational service" or not. The Tribunal incorrectly applied section 120A of the Act instead of section 120B, which pertains to service rendered on or after 1 June 1994. Despite this error, the Court found that it did not affect the outcome of the case as the veteran's service did not qualify as "operational service" under the Act. The Tribunal's finding that the death was not connected to the war service would have stood regardless of the correct section applied.

The Court concluded that the Tribunal's error, while legally significant, did not alter the outcome. Consequently, the widow's appeal was dismissed, and she was ordered to pay the Commission's costs of the proceeding.

Orders

Orders of the court

1. The appeal be dismissed.

2. The applicant pay the respondent’s costs of the proceeding.

Background

Background to the litigation

On 16 August 1999, the applicant lodged a claim with the respondent, the Repatriation Commission (‘the Commission’), claiming a pension pursuant to the Veterans’ Entitlements Act 1986 (Cth) (‘the VE Act’) as a result of the death of her husband (‘the veteran’) on 6 July 1999. On 20 August 1999, the Commission determined that the death of the veteran was not war-caused. The applicant’s application for review of that decision by the Veterans’ Review Board was unsuccessful. The decision of the Veterans’ Review Board was given on 17 July 2000. The applicant then applied to the Tribunal for merits review of the decision. The Tribunal heard the application on 16 July 2002. On 9 August 2002, the Tribunal published its decision and its reasons for decision. It also rejected the claim and affirmed the decision under review. It is from that decision of the Tribunal that the applicant now appeals.The facts The veteran was born on 10 May 1924. At the age of 18, he joined the Royal Australian Air Force, in which he served from 5 June 1942 to 30 October 1945. Apart from the journey which is in controversy in this proceeding, he did not leave Australia. Between 26 August 1943 and 31 August 1943, he was a passenger on the MV Koolinda, travelling from Fremantle to Broome. The voyage was part of a journey from Perth to Cape Leveque, to which the veteran was heading for the purpose of working at a radar tracking station. He was stationed at Cape Leveque from 11 September 1943 until 31 July 1944, when he was transferred to Cape Naturaliste. There was evidence that the veteran became a smoker during his war service, and that he continued to smoke heavily thereafter. He reduced his consumption in the 1980s, after he began to experience chest pains, and stopped smoking in 1998 or 1999. In due course, the conditions of coronary heart disease, emphysema and generalised anxiety disorder were accepted as service-related. Several other conditions were not accepted as service-related. In June 1999, the veteran was referred to a surgeon after suffering from upper abdominal pain. A liver biopsy revealed a leiomyosarcoma, a malignant tumour of the smooth muscle-type cells. The veteran died in hospital. The cause of death was listed on the death certificate as leiomyosarcoma.The issues The fundamental question before the Tribunal was the question of a connection between the applicant’s husband’s war service and his death. The applicant sought to connect the death of the veteran with his war service through his smoking habit, acquired during that service. Such a connection would depend upon the proposition that the primary cancer was in the lungs, and resulted from smoking. For determining the question whether that proposition should be accepted, the VE Act contains a range of provisions. From the point of view of the applicant, the most beneficial statutory regime came into operation if the veteran had rendered ‘operational service’, as defined in s 6A of the VE Act. If he had, the applicant was entitled to succeed unless the Commission was satisfied beyond reasonable doubt that there was no reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran. If the veteran had not rendered operational service, the Commission was to decide the matter to its reasonable satisfaction, making it less likely that the applicant would succeed. Of course, for present purposes, the Tribunal stood in the place of the Commission, for the purpose of making the decision.

Evidence

Evidence Before The Court

Section 120B provides relevantly:‘(1) This section applies to any of the following claims made on or after1 June 1994:(a) a claim under Part II that relates to the eligible war service(other than operational service) rendered by a veteran;(b) a claim under Part IV that relates to the defence service (otherthan hazardous service) rendered by a member of the Forces....(3) In applying subsection 120(4) to determine a claim, the Commissionis to be reasonably satisfied that an injury suffered by a person, adisease contracted by a person or the death of a person was war-caused or defence-caused only if:(a) the material before the Commission raises a connectionbetween the injury, disease or death of the person and someparticular service rendered by the person; and(b) there is in force:(i) a Statement of Principles determined under subsection196B(3) or (12); or(ii) a determination of the Commission under subsection180A(3);that upholds the contention that the injury, disease or death of theperson is, on the balance of probabilities, connected with that service.’The evidence There was evidence from both the applicant and the veteran’s sister that the veteran had begun to smoke during his war service. According to the applicant, he had told her that his smoking increased while he was stationed at Cape Leveque, because he was afraid that the Japanese troops could land anywhere. As to the nature of the voyage and the veteran’s service at the two locations in Western Australia, the bulk of the evidence as to whether they constituted operational service was given by Associate Professor John McCarthy, a war historian from the Australian Defence Force Academy. The substance of his evidence was as follows. The Koolinda was a standard commercial passenger and cargo vessel, equipped with defensive weapons. As a coastal ship, it would not have gone far out to sea. It was most unlikely that a military passenger in transit would have been assigned to duty on a gun station. Special training was necessary to perform this duty, which would normally be performed by the crew of the ship. There was no record of enemy submarines in the area. If there had been such a threatening event, it would have been recorded in the Operations Record Book of the veteran’s unit. No such event was recorded during the relevant period. German, Japanese and Italian submarines operated in the Indian Ocean during 1943, but mainly off the South African coast, some 5000 air miles from the Western Australian coast. The closest sinking of a ship to the Western Australian coast was more than 1000 miles from that coast. There was no evidence of Italian submarines, which were cargo carriers and not attack craft, near the Western Australian coast. The German submarines were based at Penang and it was most unlikely that they would have approached the Western Australian coast. The Japanese submarines operated largely off Sri Lanka (then known as Ceylon) and there was no evidence that they ventured into Western Australian waters. The Koolinda was not threatened by attack from submarines during the relevant period.

Decision

Reasons for decision

GRAY J
It is therefore apparent that the error of the Tribunal in applying s 120A of the VE Act, rather than s 120B, could not have affected the outcome of the proceeding adversely to the applicant. Although it was an error of law, it could not be said that the decision might have been different if the error had not occurred. The error did not affect the outcome of the case. Conclusion For these reasons, the applicant’s appeal must be dismissed. The usual order that costs follow the event should apply and the applicant should be ordered to pay the Commission’s costs of the proceeding.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

Section 6A of the VE Act provides, so far as relevant to the present case:‘(1) Subject to subsection (3), a person referred to in column 2 of an itemin the following table is taken to have been rendering operationalservice during any period during which the person was renderingcontinuous full-time service of a kind referred to in column 3 of thatitem.Operational serviceItem Person Nature of service1A member of the Defence (a) continuous full-time service outsideForce Australia during a war to which thisAct applies...(c) continuous full-time service during awar to which this Act applies rendered within Australiaimmediately before, or immediatelyafter, a period of continuous full-timeservice of the kind referred to inparagraph (a) or (b)(d) continuous full-time service renderedwithin Australia during World War 2in such circumstances that the serviceshould, in the opinion of theCommission, be treated as service inactual combat against the enemy’. The relevant provisions of s 8 are:‘(1) Subject to this section, for the purposes of this Act, the death of aveteran shall be taken to have been war-caused if:(a) the death of the veteran resulted from an occurrence thathappened while the veteran was rendering operationalservice;(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran’. By s 13(1)(a) and (c), where the death of a veteran was war-caused, the Commonwealth is, subject to the VE Act, liable to pay pensions by way of compensation to the dependants of that veteran in accordance with the VE Act. A claim for a pension is to be made in accordance with s 14. Under s 19, the Commission has the primary responsibility for determining a claim. Section 120 contains the following relevant provisions governing the process of making decisions about the connection between war service and injury, disease or death:‘(1) Where a claim under Part II for a pension in respect of the incapacityfrom injury or disease of a veteran, or of the death of a veteran,relates to the operational service rendered by the veteran, theCommission shall determine that the injury was a war-caused injury,that the disease was a war-caused disease or that the death of theveteran was war-caused, as the case may be, unless it is satisfied,beyond reasonable doubt, that there is no sufficient ground for makingthat determination....(3) In applying subsection (1) or (2) in respect of the incapacity of aperson from injury or disease, or in respect of the death of a person,related to service rendered by the person, the Commission shall besatisfied, beyond reasonable doubt, that there is no sufficient groundfor determining:(a) that the injury was a war-caused injury or a defence-causedinjury;(b) that the disease was a war-caused disease or a defence-causeddisease; or(c) that the death was war-caused or defence-caused;as the case may be, if the Commission, after consideration of the wholeof the material before it, is of the opinion that the material before itdoes not raise a reasonable hypothesis connecting the injury, diseaseor death with the circumstances of the particular service renderedby the person.(4) Except in making a determination to which subsection (1) or (2)applies, the Commission shall, in making any determination ordecision in respect of a matter arising under this Act or theregulations, including the assessment or re-assessment of the rate ofa pension granted under Part II or Part IV, decide the matter to itsreasonable satisfaction....(6) Nothing in the provisions of this section, or in any other provision ofthis Act, shall be taken to impose on:(a) a claimant or applicant for a pension or increased pension, orfor an allowance or other benefit, under this Act; or(b) the Commonwealth, the Department or any other person inrelation to such a claim or application;any onus of proving any matter that is, or might be, relevant to thedetermination of the claim or application.’