McLean v Repatriation Commission [2001] FCA 243

FEDERAL COURT OF AUSTRALIA

McLean v Repatriation Commission [2001] FCA 243 ADMINISTRATIVE LAW – War widow's pension – reasonable hypothesis that death war-caused – whether the Administrative Appeals Tribunal ("AAT") erred in holding that no hypothesis was raised – whether the AAT erred in holding that the hypothesis was not recoverable – where the hypothesis required that no one factor be assumed Veteran' Entitlements Act 1986 Bushell v Repatriation Commission (1992) 175 CLR 408 applied Byrnes v Repatriation Commission (1993) 177 CLR 564 distinguished Repatriation Commission v Bey (1997) 79 FCR 364 applied Repatriation Commission v Deledio (1998) 83 FCR 82 applied Repatriation Commission v Stares (1996) 41 ALD 212 distinguished JOYCE LEONIE McLEAN v REPATRIATION COMMISSION Q 70 OF 2000 TAMBERLIN J SYDNEY 13 MARCH 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY Q70 OF 2000

BETWEEN: JOYCE LEONIE McLEAN

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 13 MARCH 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The application is 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 Q70 OF 2000

BETWEEN: JOYCE LEONIE McLEAN

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 13 MARCH 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Administrative Appeals Tribunal ("the AAT") in its Veterans' Appeals Division given at Brisbane on 22 June 2000. The AAT decision affirmed a decision of the respondent refusing to grant a pension to the applicant in respect to the death of her husband ("the veteran"). 2 The applicant lodged a claim for a pension under s14 of the Veteran' Entitlements Act 1986 ("the Act") on 13 June 1995. The basis of her claim to entitlement was said to be that the death of the veteran in the course of tree felling work on a northern New South Wales hillside on 24 August 1953 was war-caused. 3 Because the veteran had rendered operational service, the standard of proof to be applied when determining whether his death was war-caused is that prescribed by ss 120(1) and (3) of the Act. Since the applicant's claim for a pension was lodged after 1 June 1994 the provisions of s 120A apply. 4 The relevant statutory provisions are as follows: "14 Claim for Pension (1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3). …. (3) A claim for a pension: (a) shall be in writing and in accordance with a form approved by the Commission; … 120 Standard of Proof (1) Where a claim … for a pension in respect of … the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that … the death of the veteran was war-caused, … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. … (3) In applying subsection (1) … in respect of a death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: … (c) that the death was war-caused or defence-caused; … if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the … death with the circumstances of the particular service rendered by the person. … (6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on: (a) a claimant or applicant for a pension or increased pension, … or other benefit, under this Act; or (b) the Commonwealth, the Department or any other person in relation to such a claim or application; any onus of proving any matter that is, or might be, relevant to the determination of the claim or application. … 120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles … (3) For the purposes of subsection 120(3), a hypothesis connecting … the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles …; or (b) a determination of the Commission … that upholds the hypothesis." (Emphasis added) 5 The position with respect to Statements of Principle is set out in the AAT decision in these terms: "22. In the case of Mrs McLean's claim, the factor upon which she relies is the same in each SoP but there are differences in the definitions of the expressions used in the factor. In SoP 105, which was the SoP in force at the time the Commission made its decision, the factor is 1(b) and reads: '… the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis or death from lumbar spondylosis with the circumstances of a person's relevant service, are: … (b) contracting a significant inflammatory joint disease in the lumbar spine before the clinical onset of lumbar spondylosis; …' The factor must be related to any service rendered by Mr McLean (paragraph 2) 23. The expression 'inflammatory joint disease' is defined in SoP 105 to mean: '… a disease affecting a joint or joints where there is a swelling, inflammation and pain that persisted for at least five days;' (paragraph 4) The expression 'lumbar spondylisis' is defined to mean: '… a degenerative joint disease … affecting the lumbar spine, (L1-L5, L5-S1), causing local pain and stiffness, sometimes with sciatic radiation due to nerve root pressure by protruding discs or osteophytes, and having degenerative changes in the lumbar spine;' (paragraph 4) 24. The factor set out in paragraph 1(b) of SoP 105 is mirrored in paragraph 5(b) of each of SoP 165, SoP 52 and SoP 27. The definition of 'inflammatory joint disease' in SoP 105 is identical with that in SoP 165 (paragraph 7) but the definition of that expression in SoP 52 and SoP 27 reads: "inflammatory joint disease' means rheumatoid arthritis, Reiter's syndrome, psoriatic arthritis, ankylosing spondylitis, or arthritis associated with Crohn's disease or ulcerative colitis;' (paragraph 8). The expression 'lumbar spondylosis' is defined in SoL 165, SoP 52 and SoP 27 to mean: '… degenerative changes affecting the lumbar vertebrae and/or intervertebral discs, causing local pain and stiffness and/or lumbar symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve root compression, attracting ICD … code 721.3, 721.42 or 722.52.' (paragraph 2(b)) (Emphasis added)