Whetton, B. v Repatriation Commission - [1991] FCA 147

Re: BELLE WHETTON
And: THE REPATRIATION COMMISSION
No. N G261 of 1990
FED No. 147
Administrative Law
22 ALD 297

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J.(1)

CATCHWORDS

Administrative Law - whether veteran's death war-caused - reasonable hypothesis of connection between exposure to asbestos and malignancy causing death - finding of no hypothesis when evidence of connection uncontested - whether "plausible" hypothesis is reasonable hypothesis - whether case should be remitted to AAT when result appears certain.

Veterans' Entitlements Act 1986 sections 6, 120(1) and (3), 138(1)

Administrative Appeals Tribunal Act 1975 sections 33(1), 44

Minister for Immigration and Ethnic Affairs v Gunger (1982) 4 ALD 57 5

Repatriation Commission v O'Brien (1985) 155 CLR 422

East v Repatriation Commission (1987) 74 ALR 518

Webb v Repatriation Commission (1988) 78 ALR 696

Australian Trade Commission v Richard Shrapnel Consulting Services Pty Ltd (1988-89) 85 ALR 287

Gilbert v Repatriation Commission (1989) 86 ALR 713

Rapatriation Commission v Lowerson (1989) 22 FCR 430

Hamling v Repatriation Commission (1989) 10 AAR 121

Doolette v Repatriation Commission O'Loughlin J., 1 June 1990

Ahrenfeld v Repatriation Commission unreported 29 August 1990

HEARING

SYDNEY

#DATE 5:4:1991

Counsel and solicitor Mr A.T. McInnes QC, Mr A.C. Hill and
for the applicant Mr A.J. Clout instructed by Mr K. Harrison

Counsel and solicitor Ms M. Beazley QC and Ms R. Henderson instructed by for the respondent the Australian Government Solicitor

ORDER

Decision of Administrative Appeals Tribunal of 19 April 1990 set aside.

Claim remitted for final evidentiary resolution in accordance with these reasons for judgment.

Any necessary full rehearing to be conducted by another member of the Tribunal.

Respondent to pay applicant's costs.

NOTE: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.

JUDGE1

The applicant is the widow of Frank Richard Whetton who died on 13 August 1986 from a form of cancer known as non-Hodgkin's lymphoma. He had been significantly exposed to asbestos while earlier serving in the Australian Navy. On 19 April 1990, the Administrative Appeals Tribunal (the Tribunal) affirmed a decision of the Veteran's Review Board on 10 November 1987 that Mr Whetton's death was not war-caused. The Board had earlier affirmed a decision by a delegate of the respondent on 18 November 1986 to the same effect. The late Mr Whetton was a veteran with operational service as defined by section 6 of the Veterans' Entitlements Act 1986 (the Act). The applicant now appeals to this Court from the decision of the Tribunal. The appeal is confined to questions of law by section 44 of the Administrative Appeals Tribunal Act 1975.

The deceased man served in the Navy from 1936 to 1948. He was on operational service from 3 September 1939 to 17 August 1948. His seagoing duties were to maintain and replace asbestos lagging around the pipes in the various ships in which he served. The Tribunal found that for a period in…

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 Whetton, B. v Repatriation Commission

Details

AGLC: Whetton, B. v. Repatriation Commission [1991] FCA 147 (22 ALD 297)
Case: [1991] FCA 147
Decision Date: 05 APRIL 1991

CaseChat Overview and Summary

In the case of Whetton v Repatriation Commission, the deceased veteran's widow, Mrs Whetton, sought to determine whether her husband's death was caused by his exposure to asbestos during his service, thereby qualifying him for a war-caused death pension. The case was heard in the Federal Court of Australia, with the decision resting on whether the connection between the veteran's exposure to asbestos and the malignancy that ultimately caused his death was sufficiently established to warrant a war-caused death pension.

The primary legal issue before the court was whether there existed a reasonable hypothesis that the veteran's death was war-caused. This required an assessment of whether the uncontested evidence of a connection between asbestos exposure and malignancy was sufficient to constitute a reasonable hypothesis. Additionally, the court had to determine if the term "plausible" hypothesis was synonymous with "reasonable" hypothesis and whether, given the certainty of the outcome, the case should be remitted to the Administrative Appeals Tribunal (AAT) for a final evidentiary resolution.

The court found that while the evidence of a connection between the veteran's exposure to asbestos and his subsequent malignancy was uncontested, this alone was insufficient to establish a reasonable hypothesis that the veteran's death was war-caused. The court further clarified that a "plausible" hypothesis was not necessarily equivalent to a "reasonable" hypothesis. Given the certainty of the outcome, the court decided that the matter should be remitted to the AAT for a final evidentiary resolution. To ensure fairness and impartiality, any necessary rehearing was to be conducted by another member of the Tribunal.

The court set aside the decision of the AAT and remitted the claim for a final evidentiary resolution in accordance with the reasons provided. The respondent, Repatriation Commission, was ordered to pay the applicant's costs. The settlement and entry of orders were to be handled in accordance with Order 36 of the Federal Court Rules.

Orders

Orders of the court

Decision of Administrative Appeals Tribunal of 19 April 1990 set aside.

Claim remitted for final evidentiary resolution in accordance with these reasons for judgment.

Any necessary full rehearing to be conducted by another member of the Tribunal.

Respondent to pay applicant's costs.

NOTE: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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