White, Lenney Vant v Repatriation Commission - [1997] FCA 298

CATCHWORDS

Veterans’ Entitlements - Judicial Review - whether it was open to the Administrative Appeals Tribunal to form the opinion that the material before it did not raise a reasonable hypothesis connecting the death of a veteran with his war service - whether there is evidence supporting a link between cancer and personality

Veterans’ Entitlements Act 1986 s 120

Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Owens (1996) 70 ALJR 904)
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Jenkins unreported, 26 March 1997 (FCA Full Court)
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1966) 185 CLR 259
Jenkins v Repatriation Commission (1996) 137 ALR 729

LENNEY VANT WHITE v REPATRIATION COMMISSION
No. NG 338 of 1996

CORAM: Lehane J
PLACE: Sydney
DATE: 28 April 1997

IN THE FEDERAL COURT OF AUSTRALIA      )
NEW SOUTH WALES DISTRICT REGISTRY     )              No. NG 338 of 1996
GENERAL DIVISION  )

BETWEEN: LENNEY VANT WHITE
Applicant

AND: REPATRIATION COMMISSION
Respondent

CORAM: Lehane J
PLACE: Sydney
DATE: 28 April 1997

MINUTE OF ORDERS

THE COURT ORDERS THAT:

Appeal dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA      )
NEW SOUTH WALES DISTRICT REGISTRY     )              No. NG 338 of 1996
GENERAL DIVISION  )

BETWEEN: LENNEY VANT WHITE
Applicant

AND: REPATRIATION COMMISSION
Respondent

CORAM: Lehane J
PLACE: Sydney

DATE: 28 April 1997

REASONS FOR JUDGMENT

Lehane J:

This appeal from a decision of the Veterans’ Appeals Division of the Administrative Appeals Tribunal raises, once again, the question whether it was open to the Tribunal, on the material before it, to form the opinion (as it did) that that material did not raise a reasonable hypothesis connecting the death of a veteran with the circumstances of the particular service rendered by him. The question arises under s 120 of the Veterans’ Entitlements Act 1986 (the Act) as it continues to apply to claims made before 1 June 1994.

Facts and proceedings to date

John Oswald White was born on 23 November 1913. He married the applicant (Mrs White) on 26 December 1939. He enlisted in the Australian Army on 22 April 1941 and served in the Middle East. That service was “operational service” as defined in s 6 of the Act and accordingly Mr White was a “veteran” for the purposes of the Act. In 1942 he was discharged as medically unfit; he was diagnosed as suffering from “neurasthenia”, a condition which apparently would now be described as a post‑traumatic stress disorder. In 1967 he was granted a disability pension on the footing that he had a condition described as “inadequate personality” which was war‑caused. In 1978 he was diagnosed with prostate cancer; in 1989 he died; his death certificate recorded the direct cause of death as metastatic cancer and that the primary cancer was unknown. It is accepted, however, that…

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 White, Lenney Vant v Repatriation Commission

Details

AGLC: White, Lenney Vant v Repatriation Commission [1997] FCA 298
Case: [1997] FCA 298
Decision Date: 28 APRIL 1997

CaseChat Overview and Summary

The appeal in this case was brought by the widow of a deceased veteran, Lenney Vant White, against the Repatriation Commission. Mrs White sought a war widow's pension under the Veterans' Entitlements Act 1986, which she was denied by the Commission and subsequently the Administrative Appeals Tribunal. The central issue was whether the material before the Tribunal raised a reasonable hypothesis connecting Mr White's death from prostate cancer to his war service. The appeal to the Federal Court hinged on whether the Tribunal correctly applied the legal test for determining if a reasonable hypothesis was raised, as outlined in previous High Court and Federal Court decisions.

The Court found that the Tribunal had not erred in its application of the law. The Tribunal had considered the expert evidence from both sides and concluded that while Mr White's war service resulted in heavy drinking and personality changes, there was insufficient evidence to support a reasonable hypothesis linking these factors to his prostate cancer. The Tribunal found Dr Kidman's hypothesis too tenuous and remote, while Dr Levi's evidence indicated no known association between Mr White's condition and his war service. The Court agreed that it was open to the Tribunal to find, based on the material before it, that no reasonable hypothesis was raised connecting Mr White's death to his war service.

The Court dismissed the appeal, holding that the Tribunal's conclusion was based on a finding of fact which it was entitled to make. The opinion that no reasonable hypothesis was raised was supported by the evidence before the Tribunal and did not misapply the legal test. As such, the decision of the Tribunal to deny the pension was affirmed.

Orders