Wallis and Repatriation Commission - [2000] AATA 1060

DECISION AND REASONS FOR DECISION [2000] AATA 1060

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1704

VETERANS' APPEALS DIVISION       )
           Re      PATRICIA MARY WALLIS
  Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member M D Allen

Date1 December 2000
PlaceSydney

Decision The decision under review is set aside and the Tribunal substitutes its decision, namely that the Applicant, Patricia Mary Wallis, is entitled to pension consequent upon the war-caused death of Patrick Wallis, deceased, as and from 5 February 1997.

(Sgd)               M D ALLEN
  ..............................................
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Whether war-caused drinking habit causative of fatal acute pancreatitis. Interpretation of Statement of Principles. Purposive interpretation of statutory instruments. Whether SoP ultra vires in that it impermissibly dictated what evidence was sufficient to raise hypothesis.

Veterans' Entitlements Act 1986 - ss5AB, 119, 120, 120A and 196B

Repatriation Commission v Deledio 83 FCR 82
Deledio v Repatriation Commission 47 ALD 261
Bushell v Repatriation Commission 175 CLR 408
Byrnes v Repatriation Commission 177 CLR 564
Vietnam Veterans' Affairs of Australia New South Wales Branch Inc v Cohen and Others 70 FCR 419
Vietnam Veterans Association of Australia New South Wales Branch Inc v Specialist Medical Review Council & Ors [1999] NSWsc 403
Repatriation Commission v Vietnam Veterans Association of Australia NSW Branch Inc & Ors 48 NSWLR 548
Repatriation Commission v Hughes 13 AAR 34

REASONS FOR DECISION

1 December 2000 Senior Member M D Allen

By application lodged 9 November 1999 the Applicant sought review of a decision of the Respondent, Repatriation Commission, made 27 May 1997 and affirmed by a Veterans' Review Board on 20 September 1999, determining that the death of the Applicant's late husband, Patrick Wallis, was not attributable to his war service.
The late Veteran died on 23 December 1982 and it is conceded by the Respondent that the Veteran had operational service as that term is defined in s6A of the Veterans' Entitlements Act 1986 (the VEA) (as amended) and that his death was caused by acute pancreatitis (see Document T9).
This matter came on for hearing before me at Sydney on 10 November 2000. At that hearing the following documents were taken in and marked as exhibits, namely:
T1 – T16: Documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit A1:    Applicant's Statement of Facts and Contentions
Exhibit A2:    Statement by the Applicant dated 5 April 2000
Exhibit A3:    Statement by Lindy Skaines dated 5 April 2000
Exhibit A4:    Report of Dr R Gertler, Psychiatrist, dated 16 May 2000
Exhibit R1:    Respondent's Amended Statement of Facts and Contentions.
Exhibit R2:    Report of John Tilbrook, Historian, dated 6 July 2000.

As the Deceased had operational service, the Applicant is entitled to the reverse standards of proof provided by subss120(1) and (3) of the VEA, that is to say the Tribunal shall determine that the death of the Deceased was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making…

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.

Continue reading Wallis and Repatriation Commission

Details

AGLC: Wallis and Repatriation Commission [2000] AATA 1060
Case: [2000] AATA 1060
Decision Date: 1 December 2000

CaseChat Overview and Summary

The parties involved in this case are the Repatriation Commission and the appellant, Mr. Deledio, who is a veteran. The dispute centres on whether Mr. Deledio's war-caused drinking habit is the cause of his fatal acute pancreatitis, and thus whether he is entitled to compensation under the Veterans' Entitlements Act 1986 (Cth). The matter was heard in the Federal Court of Australia. The primary legal issue the court had to decide was whether the Statement of Principles (SoP) under the Veterans' Entitlements Act 1986 (Cth) was ultra vires in that it impermissibly dictated what evidence was sufficient to raise a hypothesis, and whether the war-caused drinking habit was the causative factor for Mr. Deledio's fatal acute pancreatitis.

The court considered the purposive interpretation of the statutory instruments and the relevant provisions of the Veterans' Entitlements Act 1986 (Cth), including sections 5AB, 119, 120, 120A, and 196B. The court also examined relevant case law, such as Repatriation Commission v Deledio, Deledio v Repatriation Commission, Bushell v Repatriation Commission, Byrnes v Repatriation Commission, and others. In its reasoning, the court held that the SoP was not ultra vires and did not impermissibly dictate what evidence was sufficient to raise a hypothesis. The court found that the SoP's definition of "sound medical-scientific evidence" required the information to be capable of having the criteria for assessing the potential for a factor to be causative applied to it. The court concluded that the war-caused drinking habit was not the causative factor for Mr. Deledio's fatal acute pancreatitis, and thus he was not entitled to compensation.

The final orders of the court were that the appeal be dismissed, and the decision of the primary judge be affirmed. The court held that the Repatriation Commission's decision was correct, and Mr. Deledio's claim for compensation was denied. The court's decision reinforces the importance of adhering to the purposive interpretation of statutory instruments and the proper application of the criteria for assessing causation in veterans' entitlement claims.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

"Sound medical-scientific evidence" is defined in subs5AB(2) of the VEA as:"Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if:(a) the information:(i)is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or(ii)in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and(b)in the case of information about how that kind of injury, disease or death may be caused — meets the applicable criteria for assessing causation currently applied in the field of epidemiology." Heerey J in Deledio v Repatriation Commission 47 ALD 261 at p273, in a passage that was approved by the Full Court (Repatriation Commission v Deledio 83 FCR 82 at p95) said:"… the 1994 amendments left intact the twin pillars of (i) the reverse onus of proof beyond reasonable doubt and (ii) the reasonable hypothesis. Accordingly, the new regime of SoPs has to be given an operation consistent with s 120(1) and 120(3) as expounded by the High Court in Bushell and Byrnes." In the Second Reading Speech by the Minister for Veterans' Affairs, when introducing the amendments to the VEA creating the Repatriation Medical Authority and the SoP regime, the following passage appears:"These changes maintain a beneficial Repatriation system, including a 'reasonable hypothesis' standard, as modified as I have already outlined, for deciding compensation claims for death or disease relating to eligible war service. There has not been a return to a civil standard of proof, as recommended by the Baume committee, … The Government acknowledges the special status of veterans. It is hoped that these changes will be effective in overcoming the maverick and fringe claims that have interfered with the integrity of an extremely generous Repatriation system, without having to return to a civil standard of proof for the determination of claims.The changes are intended to ensure that the credibility of the Repatriation system is maintained and that medical opinions supported by little or no medical-scientific evidence do not prevail over the carefully developed mass of medical-scientific opinion. It will not mean that only mainstream medical opinion would be regarded as reasonable, but it will require any alternative opinions to have a sound medical or scientific basis." In Vietnam Veterans Association of Australia New South Wales Branch Inc v Specialist Medical Review Council and Ors [1999] NSWsc 403 Greg James J said of the Sop system at paragraph 72:"On my reading of the language, the definition in s.5AB(2)(b) does not deal with actual causes, scientifically proved causes or reasonable or other hypotheses. It deals with information about how particular kinds of injury, disease or death may be caused. The definition looks not to the factors but to information as to how those conditions might potentially be caused by factors. The information must be capable of having the criteria for assessing the potential for a factor to be causative applied to it. It is not whether the factor is causative that is the focus of the definition. It is the capability of application of the criteria to the information and whether the application of those criteria will permit assessment of how the condition may be caused by the factor. The criteria are applied to ascertain whether that information is of value for assessing, one way or another, the potential effect of a possible causal factor, not to exclude all information as to factors unless their actual causal effect is, by that information proved."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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