Veterans' Affairs New Zealand v Estate of Tā Harawira Gardiner
[2025] NZHC 2479
•28 August 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-772
[2025] NZHC 2479
UNDER the Veterans’ Support Act 2014, s 239 BETWEEN
VETERANS’ AFFAIRS NEW ZEALAND
Appellant
AND
ESTATE OF TĀ HARAWIRA GARDINER
Respondent
Hearing: 5 May 2025 Counsel:
A B Goosen and T Lamb for Appellant
R L Roff and S W H Fletcher, Counsel Assisting the Court
Judgment:
28 August 2025
JUDGMENT OF GRAU J
Introduction and summary of result
[1] The late Sir Harawira Gardiner (Tā Harawira) was a soldier and later a public servant who served Aotearoa New Zealand throughout his life. As a soldier in the New Zealand Army, Tā Harawira served as an infantry officer in the Vietnam War where he was exposed to the chemical herbicide, Agent Orange. In July 2021, Tā Harawira was diagnosed with glioblastoma, a rare type of brain tumour, and he passed away on 17 March 2022.
[2] In September 2021, two months after his diagnosis, Tā Harawira applied to Veterans Affairs New Zealand (VANZ) for a disablement pension on the basis that his condition was related to his service. His whānau continued the claim after his passing. The claim was not brought for any financial gain. Rather, and in accordance with
VETERANS’ AFFAIRS NEW ZEALAND v ESTATE OF TĀ HARAWIRA GARDINER [2025] NZHC 2479
[28 August 2025]
Tā Harawira’s dying wish, it was brought to vindicate the rights of his comrades in the Vietnam veteran community.
[3] Glioblastoma (malignant neoplasm of the brain) is a condition that other Vietnam veterans have experienced. It is also a condition that other Vietnam veterans have successfully claimed compensation for, both here and overseas. Under the Veterans’ Support Act 2014 (the Act) that governs compensation for veterans in New Zealand there is a list of conditions for Vietnam War veterans that the Act conclusively presumes to have been caused by their service. However, glioblastoma is not one of those conditions. Pursuant to the Act, there is also a “Statement of Principles” (SOP) about glioblastoma under which glioblastoma will presumptively be considered as being service-related if one of three factors exist. However, those factors do not include exposure to Agent Orange.
[4] Tā Harawira’s application for a disablement pension has nevertheless twice been successful before the Veterans’ Entitlements Appeal Board (Appeal Board), on the basis that his glioblastoma is a service-related condition pursuant to the Act.
[5] After the first decision by the Appeal Board in 2022 that (by majority) upheld Tā Harawira’s claim,1 the General Manager of VANZ appealed to this Court on questions of law.2 The High Court did not accept VANZ’s interpretation of the Act. The Court concluded that, as a matter of law, it was open in principle for the Appeal Board to have upheld Tā Harawira’s claim, but the Court expressed concerns about the Board’s reasoning. The result of the appeal was that the Court directed the Appeal Board to reconsider the claim in accordance with the Court’s conclusions about how claims were to be determined under the Act.3 VANZ did not seek to appeal the High Court’s decision. The Appeal Board reconsidered the claim as the High Court had directed, and after hearing evidence from expert witnesses, it determined that Tā Harawira’s glioblastoma must be treated as service-related under the Act and allowed his appeal.4
1 Decision of the Veterans’ Entitlement Appeal Board, 14 July 2022.
2 An appeal against a determination of the Appeal Board may be made to the High Court on a question of law, pursuant to s 239 of the Act.
3 The General Manager of Veterans’ Affairs New Zealand v The Estate of Lieutenant Colonel Tā Harawira Gardiner KNZM [2023] NZHC 1897 [McQueen J’s Decision].
4 Decision of the Veterans’ Entitlement Appeal Board, 20 October 2024.
[6] VANZ now appeals to this Court against the Appeal Board’s 2024 decision. VANZ contends that the Appeal Board (bound by the High Court) erred because the High Court’s interpretation of the law was wrong. VANZ again asks this Court to accept its interpretation of the Act that this Court has previously rejected.
[7] Ms Roff was appointed as counsel assisting the Court (as she was in the previous High Court appeal) to act as a contradictor to the arguments of VANZ. Ms Roff asks the Court to dismiss the appeal because this Court has already answered the very same questions in its prior decision and VANZ’s disagreement with that judgment is not a reason to revisit it two years later. Ms Roff considers that VANZ’s appeal is a direct challenge to McQueen J’s decision, and it meets the criteria for an issue estoppel. As such it contravenes the principle of finality in litigation. In any case, Ms Roff submits that McQueen J’s decision was correct.
[8] I agree with counsel assisting that VANZ is attempting to relitigate exactly the same matters that this Court has already determined and for the most part I disagree with the reasons VANZ has advanced in support of it position that this Court should consider those same matters again. Rather, the interests of justice point strongly towards Tā Harawira’s whānau not being vexed by further litigation on the exact same issues. However, despite that I agree issue estoppel is engaged, I have decided to address the merits of the appeal, given Tā Harawira’s express wish for his case to assist his comrades. Dismissing the appeal without considering its merits would not achieve his aim; rather it would only result in the next claimant in the same position being similarly vexed.
[9] After consideration of the merits, I can find no error in the previous High Court decision. Rather, I entirely agree with it. It follows that I can find no error in the Appeal Board’s decision which applied it and the appeal must be dismissed.
The Veterans’ Support Act 2014
Purpose
[10]The Act’s purpose is to provide for:5
(a)the rehabilitation of and support for veterans who, as a result of being placed in harm’s way in the service of New Zealand, have been injured or become ill; and
(b)entitlements for eligible veterans who suffer service-related injuries or illnesses; and
(c)entitlements and support for eligible spouses, partners, children, and dependants of veterans with service-related injuries or illnesses and for other persons who provide non-professional support to those veterans.
[11] In 2014, the Act replaced the War Pensions Act 1954, which had been designed primarily to meet the needs of veterans of the Second World War and did not reflect modern understandings of psychological and environmental trauma. Nor had it been amended to reflect the introduction of the Accident Compensation Scheme in 1974. Despite that it was outdated, however, its principles and decision-making presumptions were to be continued under the new Act.6 The new Act was also intended to give effect to the Te Aka Matua o te Ture o Aotearoa | Law Commission (Law Commission) recommendations in its report A New Support Scheme for Veterans: A Report on the Review of the War Pensions Act 1954. 7
Principles
[12] The Law Commission’s report set out the following foundational principles that should underpin the new legislation:8
Community responsibility – Veterans put themselves in harm's way during service on behalf of the nation. The community therefore has a reciprocal responsibility to look after veterans and their families if they are injured or killed. This is an enduring obligation.
5 The Act, s 3.
6 Veterans’ Support Bill 2013 (158-1) (explanatory note) and (22 October 2013) 694 NZPD 14102.
7 Te Aka Matua o te Ture o Aotearoa | Law Commission A New Support Scheme for Veterans: A Report on the Review of the War Pensions Act 1954 (NZLC R115, 2010) [The Law Commission Report].
8 At [1.3].
Fair entitlements – A fair entitlement scheme should provide for greater entitlements than are available to other New Zealanders, and include:
• Compensatory payments for the effects on a veteran's quality of life caused by injury or disease attributable to service;
• Income support or replacement where a veteran's injury or disease affects his or her ability to earn money by working;
• Rehabilitation services, including medical support and services and support based on a veteran's needs; and
• Compensation and income support payments to eligible family members upon the death or serious impairment of a veteran.
Equality – There should be equal treatment of equal claims. Decision-making criteria should be clear.
Benevolent approach to claims – In considering veterans' claims for entitlements, beneficial evidential provisions should be applied to veterans.
Administrative efficiency – The scheme should be as simple as possible and should aim to minimise delays. It should not replicate existing structures.
Affordability – The scheme should be affordable in terms of the community's expectations and priorities. This concept should encompass sustainability and resource efficiency.
[13] Those principles were carried through into the Act under the heading of “General Principles” in s 10 which prescribes mandatory duties on persons performing or exercising any power under the Act.
10Functions to be performed and powers to be exercised in accordance with certain principles
Every person who performs any function or exercises any power under this Act must do so—
(a)in acknowledgement, on behalf of the community, of the responsibility for the injury, illness, or death of veterans as a result of them being placed in harm’s way in the service of New Zealand; and
(b)in accordance with the following principles:
(i)the principle of providing fair entitlements to veterans and other claimants:
(ii)the principle of promoting equal treatment of equal claims:
(iii)the principle of taking a benevolent approach to claims:
(iv)the principle of determining claims—
(A)in accordance with substantial justice and the merits of the claim; and
(B)not in accordance with any technicalities, legal forms, or legal rules of evidence.
[14] The general principles in s 10 are followed by specific duties imposed on VANZ:
(a)the first relates to the provision of information to veterans or other claimants. It requires VANZ to keep veterans or other claimants up to date on the progress of their claims and to notify decisions as soon as practicable after they are made, including written reasons and advice about rights of review and appeal.9
(b)The second relates to the performance of functions and exercise of powers by VANZ, and requires as follows:10
12 Performance of functions and exercise of powers
(1)VANZ must perform its functions and exercise its powers—
(a)on reasonable grounds; and
(b)in a timely manner.
(2)In complying with subsection (1), VANZ must have regard to the following:
(a)the requirements of this Act:
(b)the nature of the function or power:
(c)all the circumstances.
(3)Without limiting subsection (1)(b), VANZ must ensure that a decision on a claim for an entitlement under this Act is made as soon as practicable after receiving the claim.
9 The Act, s 11.
10 Section 12.
The claims process
[15] The principles are immediately followed by the process for deciding claims which is at the heart of this case.
[16] Section 14 sets out sequential steps to be taken to decide whether a claim under the Act is accepted.
(a)The first step is to consider all the relevant available material and decide whether the material is consistent with a hypothesis that the injury, illness, or death was service-related.
(b)If that material is consistent with such a hypothesis, the second step is to decide whether there is a statement of principles that applies.
(c)If there is no statement of principles that applies, then s 15 applies.
(d)If there is a statement of principles that applies, the third step is to decide whether the hypothesis is consistent with the statement of principles.
(e)If the hypothesis is consistent with the statement of principles, the fourth step is to accept the claim, unless there are reasonable grounds for believing the injury, illness or death was not service-related.
[17] Under s 14(7) “statement of principles” in ss 14 and 15 is defined as meaning a “a statement of principles that, under section 22(6) and regulations made under section 265, applies for the purposes of this Act”.
[18] Where there is no applicable statement of principles, s 15 provides that the decision-making process then involves deciding whether the claim is consistent with a hypothesis that is reasonable. If it is, the claim must be accepted, unless there are reasonable grounds for believing that the veteran’s injury, illness, or death was not service-related. Section 15 also defines a “hypothesis that is reasonable” as being:
(a)more than a possibility; and
(b)consistent with the known facts; and
(c)not inconsistent with proved or known scientific facts.
[19] Section 16 goes on to provide that the process in ss 14 and 15 applies to the extent it is not modified or overtaken by the presumptions in ss 17-21, or the provisions of s 28. Of relevance is s 21 which empowers the making of regulations that may specify injuries, illnesses and conditions that must be treated as service- related, if a veteran was exposed to specific events, served in a specific place, or served in a particular time period, during qualifying operational service. Thus, s 21 makes provision for conclusive presumptions that certain conditions are service-related, which would remove the need for any further enquiry by way of the process in ss 14 and 15. Tā Harawira’s condition was not covered by such a presumption.
Statements of Principle
[20] Statements of Principle (SOPs), as above, are used in the decision-making process prescribed by ss 14 and 15. The Act drew on SOPs that were made by the Australian Repatriation Medical Authority (ARMA). The scheme of ss 22–24 of the Act is a preference that New Zealand adopts, through ministerial regulation, the approach taken by the ARMA. Regulation 15 of the Veterans’ Support Regulations 2014 sets out that the SOPs in sch 1 of the Regulations apply for the purposes of the Act. Pursuant to reg 15(2) the version of a SOP referred to in the column headed “reasonable hypothesis” is to be applied if a veteran’s service-related injury, illness condition, whole-person impairment or death relates to qualifying operational service.
[21] The Law Commission considered that decision-making instruments, such as SOPs, were an important part of the answer to the serious issues that existed with consideration of evidence in veterans’ disablement claims.11 It recommended that the new legislation should include beneficial evidential provisions together with decision- making instruments, as it considered that would achieve the same level of benevolence towards veterans’ claims as was in the War Pensions Act. Beneficial evidence provisions were said to be appropriate as an acknowledgement of veterans being placed in harm’s way in the service of New Zealand. They would assist veteran claims
11 The Law Commission Report, above n 7, at [5.51].
because veterans would not have to produce proof of a relationship between a medical condition and service to the usual standard. Instead, the law fills in some of the gaps in proof.12
[22] The Law Commission noted concern in the veteran community about the use of SOPs, but it said their use did not require the removal of the current beneficial evidential standard, as decision-making instruments like SOPs are themselves founded on beneficial evidential standards.13
[23] In recommending the introduction of SOPs, the Law Commission said they should be “exhaustive”, in that they would provide a complete list of service factors that link a condition with service. If not, it would defeat their purpose. However, if a claim was made for a condition for which there is no SOP, the claim would be determined as usual under the beneficial evidential provisions. That would require research of medical and scientific information to determine the claim.14
[24] Accordingly, in my view, what SOPs do is to establish that a hypothesis (that a veteran’s illness is linked to their service) is a reasonable one for the purpose of determining a claim. Thus it is another form of presumption the Act provides. It is less conclusive than the presumptions in s 21, but, if met, it means a claimant does not have to establish a reasonable hypothesis. That is because the SOP does it for them. Therefore, absent reasonable grounds for believing the injury, illness or death was not service-related, their claim will be accepted.
The relevant statement of principle in this case
[25] The relevant SOP in this case is SOP 85/2016 “Statement of Principles concerning Malignant Neoplasm of the Brain (Reasonable Hypothesis)”.
7Kind of injury, disease or death to which this Statement of Principles relates
(1)This Statement of Principles is about malignant neoplasm of the brain and death from malignant neoplasm of the brain.
12 At [5.52].
13 At [5.88].
14 At [5.98].
Meaning of malignant neoplasm of the brain
(2)For the purposes of this Statement of Principles, malignant neoplasm of the brain means:
(a)a primary malignant neoplasm arising from the cells of the brain; and
(b)includes malignant neuroepithelial tumour and germ cell tumour; and
(c)excludes nerve sheath tumour, soft tissue sarcoma, Hodgkin’s lymphoma, non-Hodgkin’s lymphoma, carcinoid tumour, neoplasm of the pituitary gland and cerebral meningioma.
Note: neuroepithelial tumour is defined in Schedule 1 – Dictionary.
…
8Basis for determining the factors
The Repatriation Medical Authority is of the view that there is sound medical- scientific evidence that indicates that malignant neoplasm of the brain and death from malignant neoplasm of the brain can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces under the VEA, or members under the MRCA.
Note: relevant service is defined in the Schedule 1 – Dictionary.
9Factors that must exist
At least one of the following factors must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the brain or death from malignant neoplasm of the brain with the circumstances of a person's relevant service:
(1)having received a cumulative equivalent dose of at least 0.1 sievert of ionising radiation to the brain at least two years before the clinical onset of malignant neoplasm of the brain;
Note: cumulative equivalent dose is defined in the Schedule 1 – Dictionary.
(2)being infected with human immunodeficiency virus before the clinical onset of malignant neoplasm of the brain;
(3)inability to obtain appropriate clinical management for malignant neoplasm of the brain.
[26] As can be seen at least one of three factors must apply for the SOP to establish a reasonable hypothesis connecting glioblastoma with the circumstances of a person’s relevant service. Tā Harawira could not establish such a reasonable hypothesis via the
SOP that related to his condition, when his claim was that Agent Orange exposure in Vietnam caused, or contributed to, his glioblastoma.
When there is no applicable Statement of Principle
[27] As above, where there is no applicable SOP, s 15 requires the decision-maker to determine whether the claim is consistent with a reasonable hypothesis, which necessarily involves the claimant establishing a hypothesis that is reasonable. If the claim is consistent with a hypothesis that is reasonable, the claim must be accepted (again absent reasonable grounds for believing the injury, illness or death was not service related).
The claims process is a progressive one
[28] Accordingly, each of these ways of establishing a claim progressively requires a claimant to do more.
(a)When a s 21 presumptive condition applies, nothing more is required from a claimant other than establishing their condition and their service; or
(b)Under s 14, if there is an SOP that applies to a claimant’s condition and the claimant has one of the factors required to establish a reasonable hypothesis, a presumption of a reasonable hypothesis linking the condition to the service arises. Acceptance of the claim would normally follow; or
(c)If there is no applicable SOP, s 15 requires the claimant to establish such a reasonable hypothesis.
The issues in this appeal
[29] The question at the heart of this case is whether the existence of an SOP that applies to a claimant’s condition (but does not presumptively link the condition to the service) is a bar to the claimant advancing a claim under s 15. In other words, is it the case, as VANZ contends, that if an SOP applies to the condition but not to the claimant,
that is the end of the enquiry and the claim cannot be advanced? Or, as McQueen J found, in such a scenario, should that SOP be treated as inapplicable, such that a claim can still be advanced under s 15?
[30] The other issue raised in this appeal is the requirement under s 10 of the Act that persons performing any function or exercising any power under the Act do so in accordance with the principle of promoting equal treatment of equal claims. VANZ argues that equal treatment of equal claims only relates to different claims under the current Act that are decided under the same test. It says equal treatment does not extend to claims that have been decided under the predecessor 1954 Act (or elsewhere). However, McQueen J determined that there could be no hard and fast rule. This aspect of the appeal relates to a decision of the War Pensions Appeal Board under the War Pensions Act 1954; Kenyon. In that decision in 2013, the Appeal Board accepted a claim by a Vietnam veteran, William Kenyon, that his glioblastoma was attributable to or aggravated by his service, which included exposure to Agent Orange.15
Background to the current appeal
Agent Orange
[31] Agent Orange was a herbicide used in the Vietnam War to clear vegetation. One of the chemical ingredients in Agent Orange was dioxin, or 2,3,7,8-tetrachloro- dibenzo-para-dioxin (TCDD). Some studies have suggested that dioxin is a potent agonist16 that binds to Aryl hydrocarbon receptor (AHR) proteins in cells, which regulate the transcription of genes. Interference with the AHR receptor has a dual effect, in suppressing the body’s immune response to cancerous cells and also stimulating the growth of such cells.
The application
[32] As above, on 3 September 2021, Tā Harawira applied for a disablement pension pursuant to s 47(1) of the Act, which provides that a veteran who suffers
15 Kenyon War Appeal 7, 19 December 2013.
16 An agonist is a substance that mimics the actions of a neurotransmitter or hormone to produce a response when it binds to a specific receptor in the brain.
disablement as a consequence of a service-related injury or illness is entitled to a disablement pension. A service-related injury is defined as “an injury, an illness, or a whole-person impairment caused by, contributed to by, or aggravated by qualifying service”.17 On 20 September 2021, VANZ, through its Decision Officer, declined to accept the claim for glioblastoma as a service-related condition. On 5 January 2022, Tā Harawira sought a review of that decision.
[33] On 4 February 2022, the VANZ Review Officer upheld the decision of the Decision Officer and declined to accept glioblastoma as a service-related condition on the grounds that:
(a)Tā Harawira was not diagnosed during his operational service;
(b)glioblastoma is not a presumptive condition for Vietnam; and
(c)no factor in the relevant Statement of Principles “Malignant Neoplasm of the Brain (Reasonable Hypothesis) No. 85 of 2016” (SOP 85/2016)” was met.
[34] The estate of Tā Harawira appealed against that decision. On 27 April 2022, the Appeal Board found the Review Officer lacked the jurisdiction to make the review decision and, therefore, the Review Officer’s decision was a nullity. The Appeal Board revoked the decision of the Review Officer and directed an appeal to be set down for a substantive hearing. On 14 July 2022, the Appeal Board (by majority) upheld Tā Harawira’s claim that his glioblastoma should be treated as service-related. Given that decision has now been overtaken, I set out the Appeal Board’s reasoning only in brief as follows:
(a)One member did not accept an argument that Tā Harawira’s claim was required to receive equal treatment to claims made under the War Pensions Act in accordance with s 10(b)(ii) of the Act. Nor did she consider it appropriate to “step around s 14” and undertake a broader assessment. She accepted there was an applicable SOP but the
17 The Act, s 8.
hypothesis that Tā Harawira’s glioblastoma was service-related was not consistent when he did not meet any of the factors listed. She considered s 15 did not apply because there was a relevant SOP, thus it was not open to find the glioblastoma was service-related.
(b)The second member found s 10(b)(iv), read together with s 229(5), obliged the Appeal Board to decide the claim in accordance with the substantive justice and merits, based on his view that the Governor- General had a duty to include glioblastoma in the relevant presumptive list. Although the Appeal Board was required to comply with regulations made under the Act, it was not required to give effect to an omission from the Regulations that contravened s 10(b) or any other provision. On that basis, the claim must be treated as a service-related condition under the Act.
(c)The third member agreed that the requirement to exercise benevolence required the claim to be treated as a service-related condition.
VANZ’s appeal to the High Court
[35] VANZ appealed the Appeal Board’s decision to the High Court, pursuant to s 239 of the Act. As McQueen J set out, the principal ground of appeal was that the majority of the Appeal Board erred in law by not deciding the claim under the prescriptive process set out in s 14 of the Act.18 Relevantly, the specific errors of law alleged were in the Board’s treatment of s 10(b) as overriding s 14, and in finding that the principle of promoting equal treatment of equal claims in s 10(b)(ii) does not confine the enquiry to claims made under the Act.
[36] As McQueen J described it, the contest was between a “straightforward interpretation of the plain words of s 14”, and an interpretation reached after “a broader consideration of the Act and its legislative history”.19
18 McQueen J’s Decision, above n 3, at [57].
19 At [68].
[37] Her Honour then conducted a detailed review of how ss 10 and 14 of the Act had evolved, observing:
(a)the provisions were introduced at the Select Committee stage as necessary to make the claim decision process and establishment of entitlements as clear as possible, both for VANZ as decision-makers, and veterans;20
(b)the Departmental Report on the Bill included comment that the Bill was intended largely to remove decision-making discretion as well as a recommendation that the SOPs would be the primary tool to apply;21
(c)the statement of the then responsible Minister accompanying the introduction of the Bill into Parliament that “there was very broad support for the use of the Australian statements of principle as the main reference point for deciding claims”;22 and
(d)the explanatory note to the Bill described the introduction and use of the SOPs as greatly benefiting the decision-making process by reducing the amount of discretion available to the decision-maker.23
[38] Her Honour concluded from her review that the Law Commission may have recommended SOPs to be exhaustive, but it did not appear this recommendation was carried through into the Act.24
[39] The separation of the overarching principles from the claim process was also significant. Section 10 was described as “possibly unique” as imposing mandatory duties on decision-makers, and those principles had to be taken into account in ascertaining the proper meaning of s 14.25
20 At [70] citing Veterans’ Support Bill 203 (158-2) (Select Committee Report) at 5.
21 At [71] citing New Zealand Defence Force “Veterans’ Support Bill – Departmental Report” (February 2014) at [87].
22 At [71] citing (10 April 2017) 697 NZPD 17188.
23 At [72].
24 At [72].
25 At [73].
[40]Accordingly, Justice McQueen concluded that:
[74] Having carefully reviewed the Act overall, and its legislative history, I consider that s 14 is properly understood as establishing a default process by which claims would be determined—but not an exhaustive process. In my view, the creation of both presumptive conditions (as, for example, in reg 13) and SOPs were intended to benefit veterans making claims by providing, as far as possible, clear bases on which claims might be made out. I do not consider that Parliament intended the effect of introducing the default process to be to exclude possible claims, to the disadvantage of veterans. Rather, I am satisfied that Parliament intended that claims made for a service-related condition should be considered and determined on substantive grounds. This is clearly contemplated in the Act, as the process in s 15 provides.
[41] Her Honour’s view was that the approach VANZ put forward would not be a benevolent approach as s 10(b) requires. Under VANZ’s interpretation a veteran who was not assisted by a relevant SOP would not be entitled to pursue their claim, whereas a veteran in respect of whom there was no relevant SOP was entitled to the benefit of s 15. Although the Act was silent on what was to occur when there was a relevant SOP but it was not applicable to the circumstances, that would amount to Parliament deliberately choosing that such a claim could never succeed. Justice McQueen considered that as an unattractive conclusion and one that was inconsistent with the purpose and scheme of the Act, its legislative history and a proper reading of ss 10 to 12, 229(5)(b) and 9(5)(c).26
[42] Justice McQueen determined that when a SOP was apparently applicable, but no factors related to the claimant, the overarching question was whether there is a reasonable hypothesis that the condition or injury is service- related.27 The Act’s requirements of “consistency” with a SOP or a reasonable hypothesis contemplates a claim that does not fit strictly with that SOP or reasonable hypothesis.28 That interpretation was consistent with s 12 which mandates that a decision must be made on reasonable grounds and in light of all the circumstances.
[43] Thus, her Honour found that the appropriate approach to Tā Harawira’s claim was for the Appeal Board to adopt the process set out in s 15 of the Act.29
26 At [75]–[76].
27 At [78].
28 At [80].
29 At [111].
[44] The other aspect of the appeal was a submission by VANZ that the Appeal Board had erred in concluding that the Kenyon decision was an equal claim. As above, Kenyon was a successful claim by a Vietnam veteran suffering from glioblastoma who had been exposed to Agent Orange during his service.
[45] In relation to the principle of equal treatment, McQueen J acknowledged that there were differences between the Act and the War Pensions Act, but considered the broader principles that apply to the determination of claims are the same.30 Her Honour found it was inappropriate to conclude that the Kenyon claim could not be regarded as equal to Tā Harawira’s claim simply because the claims arose under different legislation.31 Instead, the assessment of whether successful claims under the War Pensions Act should be regarded as an equal claim depends on the consideration of all the circumstances. The Appeal Board, therefore, could not refuse to take into account the decision in Kenyon.32
[46] The Judge directed the Appeal Board to consider the claim again, given the Court’s conclusions as to the questions of law.33 She considered that any other view favoured legal technicalities over substantial justice.34 Section 10(b) (which contains the requirement to act in accordance with the principle of promoting equal treatment of equal claims) prohibited an analysis that regarded successful claims under the predecessor act as automatically irrelevant.35
The second Appeal Board decision
[47] The claim returned to the Appeal Board, which, as a starting point, agreed that the appeal must be considered afresh. The first step was to consider all of the relevant available material and decide if it was consistent with a hypothesis that the glioblastoma suffered by Tā Harawira was service related. VANZ had conceded the material was consistent with such a hypothesis. The Appeal Board said they thought that was rightly common ground.36
30 At [103].
31 At [104].
32 At [111].
33 At [113].
34 At [105].
35 At [105]
36 Decision of the Veterans’ Entitlements Appeal Board, 20 October 2024 at [16].
[48] The next step was to consider if a SOP applied. The Appeal Board recorded that there was a relevant SOP.37 The Appeal Board then considered whether the hypothesis was consistent with the SOP. It noted it was also common ground that none of the factors specified in the relevant SOP applied.38
[49] The Appeal Board then referred to McQueen J’s decision that s 15 should apply in such a case, and it proceeded with the analysis prescribed in s 15. As a first step the Appeal Board said it had to determine whether the hypothesis relied on was reasonable. Reasonableness was defined in s 15(4) as more than a possibility, consistent with the known facts and not inconsistent with proved or known scientific facts.39
[50] The Board did not accept a submission by VANZ that the hypothesis which must be tested against s 15 was that exposure to Agent Orange must have caused the glioblastoma.40 That was because s 7 of the Act defined an illness as service-related if it is “contributed by or aggravated by qualifying service”. The distinction was important in light of the evidence of Professor McBride that brain cancer is most likely multifactorial.
[51] The Appeal Board accepted Professor McBride’s “mechanistic” analysis about how a brain cancer could result from exposure to dioxin,41 noting it was not contested. The Appeal Board also noted Professor McBride’s reference to a 2018 United States Report about health effects in Vietnam veterans of exposure to herbicides. That report had concluded that a more than twofold excess risk of mortality from head and neck cancers was unexplained.42
[52] The Board then recorded the concession by VANZ at the hearing that the hypothesis linking Tā Harawira’s glioblastoma with his assumed exposure to Agent Orange was more than a possibility and was consistent with the known facts.43 Those
37 At [17].
38 At [19].
39 At [22].
40 At [28].
41 At [29]–[32].
42 At [33].
43 At [35].
facts included that Tā Harawira was a non-smoker, had nothing in his medical history to suggest a predisposition to glioblastoma, and served during a period when it could be reasonably assumed he was exposed to Agent Orange while on patrol. Additionally, of his 17 siblings, he was the only one who served in Vietnam and the only one to contract this disease.
[53] By the end of the hearing, the sole remaining issue was whether the hypothesis was inconsistent with proved or known scientific facts.44 The Board accepted evidence that there remained no validated association between glioblastoma and any risk factor other than therapeutic levels of ionizing radiation to the head.45 It also had regard to Professor McBride’s evidence that glioblastoma is a rare cancer and the cohort of Vietnam veterans was too small for reliable epidemiological studies.46
[54] The Appeal Board noted a concession from VANZ’s expert that a scientific link between dioxin and glioblastoma cannot be ruled out.47 It then said it took from all the evidence and submissions that although such a link is as yet unproven on a scientific basis, it remains a plausible explanation for at least some of the excess deaths observed among the Vietnam veterans’ cohort.48 It was consistent with the mechanistic analysis of how dioxin interferes with the AHR receptor and was not inconsistent with epidemiological studies.
[55] VANZ’s expert had also conceded at the hearing that, if there was a reasonable hypothesis glioblastoma may be connected with exposure to dioxin, VANZ would not have reasonable grounds for believing Tā Harawira’s glioblastoma was not service related.49
[56] On the basis of the evidence, and what the board said were VANZ’s sensible concessions, it found the hypothesis—that exposure to Agent Orange during
44 At [36].
45 At [37]–[38].
46 At [39].
47 At [39].
48 At [40].
49 At [46].
qualifying service either caused or contributed to the development of glioblastoma— was reasonable.50
[57] The Appeal Board then went on consider what constituted an equal claim, discussing Tā Harawira’s circumstances in comparison with Mr Kenyon whose glioblastoma had been accepted as service-related in 2013. A comparison of the circumstances of the two claims demonstrated service in the same operational theatre at a similar time, exposure to Agent Orange, and a similar time between exposure and diagnosis.51 Furthermore, in both cases, the claimants never smoked, had no family history suggesting a genetic disposition, nor had they engaged in any activities after service that might have led to developing glioblastoma.52 In the Board’s view, Kenyon was “unquestionably” an equal claim for the purposes of s 10(b)(ii).53
[58] For those reasons, the Appeal Board’s decision was that Tā Harawira’s glioblastoma must be treated as service-related under the Act.
A preliminary matter: can VANZ re-argue in the same Court what McQueen J has already determined?
[59] In written submissions and at the beginning of the hearing of the appeal, counsel for VANZ stated that VANZ sought “to overturn” McQueen J’s decision. When I pointed out to counsel that the High Court could not sit as an appeal court in relation to another High Court decision, counsel then said VANZ sought this Court to “come to a different conclusion” to McQueen J. In the event VANZ was successful, it could then follow the later decision until the law became “settled by the Court of Appeal”.
[60] VANZ did not appeal McQueen J’s decision; its view is that there was “considerable doubt” as to whether that was possible when VANZ was the successful party in that case. The result is that VANZ (who conceded significant aspects of the second appeal before the Appeal Board) is before this Court again challenging the Board’s decision. It is making the same arguments about the same case that have
50 At [41].
51 At [57].
52 At [59].
53 At [61].
already been determined by this Court. That difficulty was not raised by VANZ. Unsurprisingly, Ms Roff has raised the issue of estoppel. VANZ responded by filing supplementary submissions.
[61] Ms Roff notes it might be thought that the usual—indeed proper—way for VANZ to address its concerns about the correctness of McQueen J’s decision was to appeal against it. Although it is technically correct that only results, not reasons, can be appealed (and VANZ was the successful party), Ms Roff points out that VANZ did not obtain the relief it sought. With reference to the Supreme Court’s decision in Arbthnot, Ms Roff also points out that the rule against an appeal by a successful party applies only where a litigant has been “entirely successful and do not wish to alter the result”.54
[62] I agree with Ms Roff that, while VANZ may have been technically successful in its appeal heard by McQueen J, it was not at all successful otherwise. VANZ asked the Court to find that its view of the decision-making process in the Act was correct, meaning Tā Harawira’s claim was precluded, his claim could not be treated as an equal claim, and the Appeal Board should not have allowed Tā Harawira’s appeal. VANZ asked the Court to set aside the Appeal Board’s decision and reinstate the decision of the Review Officer (notwithstanding that decision was a nullity, given the review officer could not make it). But McQueen J did none of those things. Instead, McQueen J determined a construction of the Act that would not preclude Tā Harawira’s claim. She rejected the argument that the claim could not be treated as an equal claim. She also found that it was open in principle for the majority of the Appeal Board to conclude that Tā Harawira’s claim must be treated as a service-related condition under the Act. It was only because of concerns about the reasoning (including lack of reasons) of the Appeal Board members, and her view that it would be inappropriate for this Court to make its own decision on the claim, that her Honour decided the Appeal Board should reconsider the claim.55 Accordingly, it can hardly (or realistically) be said that VANZ’s appeal was successful.
54 Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55; [2008] 1 NZLR 13 at [25].
55 McQueen J’s Decision, above n 3, at [112].
[63] VANZ says the lack of a right of appeal points strongly against an issue estoppel arising. VANZ also contends that McQueen J’s legal determinations on the questions of law unsuccessfully raised by VANZ had no impact on her allowing the appeal. Accordingly, VANZ submits that the possibility of an appeal having been brought against the High Court decision should not influence the Court to find an issue estoppel.
[64] I am not persuaded by the “no right of appeal” argument, when it appears that no attempt was even made to appeal against the previous High Court decision. In reality, VANZ is attempting to bring that appeal now, but in the same Court. It is, as Ms Roff has expressed, a direct challenge to McQueen J’s judgment. Nor do I accept that McQueen’s legal determinations had no impact on her allowing the appeal, when one of the Appeal Board members had adopted the construction of s 14 that VANZ contended for on appeal.
[65] VANZ also submits that, even if an issue estoppel could arise, the Court has a discretion to proceed nevertheless, taking into account the overriding consideration of where the interests of justice lie. VANZ points to the purpose of res judicata, being that there should be an end to litigation and that an individual should not be vexed twice for the same cause. Here, it is said the public interest in an end to litigation will not be achieved if the case is not decided on its merits. If the current case is possibly brought to an end, VANZ will likely appeal the next decision of the Appeal Board based on the interpretation of the Act this Court has previously determined. And, where this case has been brought as a test case, it will not assist future veteran claims if the merits are not determined. VANZ also points out that Tā Harawira’s estate does not have to meet the legal costs of this litigation, and VANZ would not seek to recover entitlements paid to the estate if the appeal was successful.
[66] For the most part, I am not persuaded by VANZ’s submissions. This is not a case about money and never has been. That Tā Harawira’s whānau will not bear a financial cost is beside the point when they are again being vexed with the same issue that has already been determined. There is inevitably an emotional toll, when they have fulfilled their loved one’s dying wish, but the litigation is now simply being
repeated in what will be the seventh decision relating to Tā Harawira’s claim. The whānau should be entitled to have this litigation come to an end.
[67] However, I have decided to proceed to determine the merits of the appeal, despite agreeing that VANZ is before this Court again in reality seeking to appeal against this Court’s previous decision. Although I agree with Ms Roff that issue estoppel is engaged, it seems appropriate here for the Court to exercise its discretion to proceed to a determination. Counsel have prepared for this appeal with comprehensive submissions and were well prepared to argue the issues on the day. I also consider it is a preferable course to determine the appeal. That is only because the alternative is worse. If I do not, then as noted by VANZ, the next veteran in the same position will also likely face a protracted course of litigation. Thus, as Tā Harawira wished his case to assist other veterans, it is better that his case continues to a determination, even though I consider the process adopted by VANZ has been unsatisfactory. It is also the case that I have reached the same conclusion that McQueen J did. That means VANZ may now take the opportunity they should have taken (or attempted) two years ago to appeal this Court’s decision, which will likely be a faster way to achieve finality than waiting for the next case. Put another way, dismissing the appeal without determining the merits would achieve finality for Tā Harawira’s whānau, but the wider public interest in bringing an end to the litigation will not be achieved if I do not decide this case on its merits, and that would not appear to me to accord with Tā Harawira’s wishes.
[68]I acknowledge here the patience and forbearance of Tā Harawira’s whānau.
What is the decision-making process in the Act?
[69] As I have already expressed, I reach the same conclusion as McQueen J. Given I consider that I cannot improve on her careful and comprehensive review of the Act and its legislative history, my reasons will be relatively brief.
[70] First, as a starting point, I observe that the Law Commission described the veterans’ scheme as not a no-fault scheme, but as a “State Fault” scheme.56 As the
56 The Law Commission Report, above n 7, at [4.16].
Commission went on to say, the Government is responsible for the harm it causes, even if only caused indirectly by it. The overarching principle behind veterans’ entitlements is that the Government should look after those who are injured because it has put them in harm’s way. That principle is at the heart of the Act, given expression (and teeth) by the mandatory duties imposed on those performing functions or exercising power under the Act. As noted above those duties are to promote equal treatment, take a benevolent approach, and determine claims on substantial justice and merits, not on “any technicalities, legal forms, or legal rules of evidence”.57 That is the standard against which the decision-making process set out in the Act needs to be measured.
[71] Second, is the purpose of the SOPs. According to the Law Commission report, they are a decision-making instrument that “are an important part of the answer to the serious issues that currently exist with consideration of evidence in veterans’ disablement claims”.58 Thus, SOPs are part of the answer—but they are not the complete answer. They are, as the Law Commission said, the law ‘filling in’ some of the gaps in proof.59 I acknowledge here the Law Commission also said SOPs should be exhaustive.60 VANZ places great emphasis on this statement. However, as a single paragraph in a lengthy report, I do not think it has the power to provide a conclusive interpretation of the Act’s claim’s process. Furthermore, as McQueen J found, other material in the legislative history suggests otherwise.61 Nor did the Law Commission say what should happen in the claims process if an SOP applied to a veteran’s condition but not to the veteran. Neither does the Act. It is also the case that SOPs cannot be exhaustive, otherwise s 15 would have no utility.
[72] Third, is the scheme of the Act and claims process, which I have attempted to set out above. There is a hierarchy of presumptions. At the top are presumptive lists that allow for automatic acceptance of claims. In the middle are SOPs which establish a presumption of a reasonable hypothesis, and if applicable, acceptance of the claim would usually result. At the other end is s 15 which enables a claimant to prove their
57 The Act, s 10.
58 The Law Commission Report, above n 7, at [8.33].
59 At [5.52].
60 At [5.69].
61 McQueen J’s Decision, above n 3, at [72]–[74].
case (as Tā Harawira did) when an SOP cannot assist in the decision-making process. I agree with Ms Roff that, despite the “step” language in s 14, the more coherent reading of the section is that it creates two pathways.
[73] Fourth, and relatedly, is that I consider it is open to regard an SOP as being inapplicable, when, despite the existence of an SOP relating to a veteran’s condition, it does not apply to the veteran’s circumstances. In this case, there was an SOP applying to Glioblastoma caused by three matters, but Tā Harawira had Glioblastoma that was caused (or contributed to) by something else. It is therefore apt to say that no SOP applies for the purposes of s 15 when a claimant’s circumstances are not covered by the relevant SOP. As noted by McQueen J, to find otherwise would mean inconsistent treatment between veterans with conditions covered by SOPs that are not applicable to their circumstances, and veterans with conditions that have no relevant SOP.62
[74] Fifth, I do not agree with VANZ’s submission that the interpretation this Court prefers is “problematic”, as it will create uncertainty, increase claims under s 15, and will result in greater cost. It is not clear to me what uncertainty will be created. Furthermore, increased claims and costs are not tools of statutory interpretation that support the approach VANZ contends for. In any case, there was no evidence before this Court about those matters. Even if that was the result, and VANZ needed a corresponding budget increase, then that is a matter for VANZ to seek, and/or for Parliament to consider whether it intended a more stringent claims process to reduce the ability of veterans to advance claims and the associated costs involved.
[75] I also observe here that the interpretation of the Act that VANZ contends for appears to be the very opposite of benevolence and instead appears to be about resources. Nor do I accept the argument that the principle of benevolence being imported into an SOP means that the existence of an SOP is, of itself, the end of a claim. Benevolence imported into an SOP cannot assist a claimant whose situation is not covered by it. The SOPs are there to assist in the decision-making process. If they cannot assist in that process then they are of no utility, and thus are inapplicable. A
62 At [75].
coherent reading of the process, and the principle of benevolence, would suggest that the s 15 process was then intended to apply.
[76] VANZ also says this Court’s interpretation means SOPs can only determine a claim by allowing it. That is incorrect. An SOP establishes a presumption of a reasonable hypothesis. Acceptance of a claim would usually follow but it will not if there are reasonable grounds for believing the injury or illness was not service related. While it is correct, as VANZ says, that a claimant will not necessarily succeed under the s 15 process, that is not the point. The point is the opportunity for the veteran claimant to have their claim determined on its merits, when an SOP does not apply to their circumstances. That is a more palatable conclusion than Parliament deliberately, but silently, choosing to foreclose such a possibility. Nor did McQueen J say a veteran would “always” be better off if there was no relevant SOP.
[77] Finally, what happened in Tā Harawira’s case after the High Court’s previous decision is instructive. VANZ conceded the relevant available material was consistent with a hypothesis that Tā Harawira’s glioblastoma was service-related. VANZ also accepted that the hypothesis was more than a possibility and was consistent with the known facts. VANZ’s expert conceded that a scientific link between dioxin and glioblastoma cannot be ruled out. The expert also conceded that, if there was a reasonable hypothesis that glioblastoma may be connected with such exposure, VANZ would not have reasonable grounds for believing Tā Harawira’s glioblastoma was not service related. Yet VANZ is again arguing in this Court that the Appeal Board erred, because the High Court directed it to reconsider this claim, and it did so on its merits. I do not believe Parliament intended that such a claim could not be advanced and determined on its merits.
[78] Accordingly, I do not consider that the Appeal Board erred in its interpretation of the law by applying McQueen J’s findings that where there is a relevant SOP that does not apply to the claimant’s circumstances, s 15 should be applied to determine the claim.
Equal claims
[79] I make only brief comments on this secondary issue. I do not accept that an “equal claim” means it must be a claim made under the same Act. If that were so, it could be expected to have been expressed as such. It is also not in accordance with the mandatory principles in the Act requiring claims to be decided on substantive grounds—meaning in accordance with justice and the merits, not on technicality. I also disagree that Keelan v The General Manager of Veterans’ Affairs New Zealand is authority for the principle that the test for deciding claims under the Act and the previous act is different.63 As McQueen J found, it only stands for the proposition that a claim under the old Act does not automatically apply in the same way under the current Act.64
[80] In contrast, the intention of Parliament was clear that the Act was a continuation of the earlier Act. It is not enough to say they are different Acts.
[81] I agree with Ms Roff that equality of claims depends on the claims themselves and a case-by-case analysis is required. Here, there was a comparable case; Kenyon. Tā Harawira and Mr Kenyon had the same service at the same time, had the same condition, and had similar characteristics that could not otherwise explain their condition. The claims appear to be equal on their facts. I cannot accept that the fact of a claim being under an earlier Act, now continued by a new Act, means the earlier successful claim is irrelevant.
Conclusion
[82] I have reached the same conclusion as McQueen J. I do not consider Parliament would have intended to shut out from the claims process veterans in Tā Harawira’s position. Accordingly, I cannot find an error in the Appeal Board’s second decision that Tā Harawira’s glioblastoma was a service-related condition under the Act.
63 Keelan v The General Manager of Veterans’ Affairs New Zealand [2016] NZHC 1869.
64 McQueen J’s Decision, above n 3, at [102].
Result
[83]The appeal is dismissed.
Costs
[84] Neither party has asked for costs. I make no order for costs at this stage. If costs are sought, counsel may file memoranda and I will determine costs on the papers.
Grau J
Solicitors:
Crown Law, Wellington for Appellant
cc: R L Roff, Clifton Chambers, Wellington
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