Cameron v Repatriation Commission [2003] FCA 1323

FEDERAL COURT OF AUSTRALIA

Cameron v Repatriation Commission [2003] FCA 1323

VETERAN'S ENTITLEMENT – whether impermissible fact finding under s 120(3) of the Veteran's Entitlement Act 1986 (Cth) in assessing whether a reasonable hypothesis existed – difference between fact finding or rejecting evidence and assessing and weighing all evidence – conclusion as to lack of reasonable hypothesis a question of fact.

Administrative Appeals Tribunal Act 1975 (Cth) s 44 Veteran's Entitlement Act 1986 (Cth) ss 120, 175 Bull v Repatriation Commission (2001) 188 ALR 756 applied Bushell v Repatriation Commission (1992) 175 CLR 408 referred to Byrnes v Repatriation Commission (1993) 177 CLR 564 referred to East v Repatriation Commission (1987) 16 FCR 517 referred to Elliott v Repatriation Commission (2002) 73 ALD 377 discussed Repatriation Commission v Bey (1997) 79 FCR 364 applied Repatriation Commission v Deledio (1998) 83 FCR 82 applied CLARICE CAMERON v REPATRIATION COMMISSION N 79 of 2003 ALLSOP J 21 NOVEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 79 of 2003

BETWEEN: CLARICE CAMERON

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 21 NOVEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the costs of the respondent. 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 N 79 of 2003

BETWEEN: CLARICE CAMERON

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: ALLSOP J

DATE: 21 NOVEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT

Background 1 This is an appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) from a decision of the Administrative Appeals Tribunal (the Tribunal) dated 8 January 2003 which affirmed the decision of the Repatriation Commission to refuse the applicant's claim for a widow's pension under the Veteran's Entitlement Act 1986 (Cth) (the Act). 2 The error of law identified in the notice of appeal was expressed as follows: Whether the Tribunal erred in law in its application of section 120 of the [Act]. 3 The submissions of the applicant provided some more illumination as to the nature of the error of law: …the tribunal erred in its interpretation of section 120 of the Act in that it prematurely and at the incorrect standard of proof made findings of fact. 4 The nature of the asserted error and the submissions made require careful attention to the fact finding and reasoning process of the Tribunal, not, it should be emphasised, to ascertain the correctness or otherwise of the facts as found, but, rather, to see whether an approach was adopted contrary to that laid down by s 120 of the Act and the cases illuminating its operation. 5 The applicant's late husband (Mr Cameron) was a veteran as defined in the Act. He rendered operational service from 6 May 1942 to 14 December 1945. 6 Mr Cameron died on 18 April 1980, when he was hit by a car crossing a road in Mudgee. 7 The record of the post mortem carried out the following day recorded, amongst other findings: (f) A small tear of the thoracic Aorta with a large mass of blood clot. … (h) Current left-sided pneumonia. 8 The Tribunal recorded the following agreed facts in [4] and [5] of its reasons: [3] The following matters are not in dispute. The Veteran was enlisted in the Australian Army from 6 May 1942 to 14 December 1945, a period of operational service. The Veteran died when struck by a motor vehicle as he was crossing Market Street in Mudgee at approximately 7:50 pm on Friday 18 April 1980. The parties agreed that the cause of death was a tear to the thoracic aorta and severe trauma caused by the motor vehicle impact. The parties also agreed that, on death, the Veteran had pneumonia although the question of whether that was due to contusions from the impact of the motor vehicle or whether the pneumonia was current before the accident is in dispute. At the time of his death the Veteran was 68 years old. [4] It is also agreed between the parties that the Veteran had chronic bronchitis which had, in conformity with Statement of Principles ("SoP") number 73 of 1997, been war caused given his three or four fold increase in the amount of his tobacco consumption during his service. 9 The applicant made an informal claim in December 1988 for a pension, followed by a formal claim in 1989. In April 1989 a delegate of the Commission dealt with the claim, saying in the statement of reasons, amongst other things: In determining this claim I am required by section 120 of the Veterans' Entitlements Act to grant the claim unless I am satisfied beyond reasonable doubt that there is no sufficient ground to grant the claim. I shall be so satisfied if the material before me raises no reasonable hypothesis connecting Mr Cameron's death with his operational service. Mr Cameron's death certificate shows that he died from multiple injuries when he was struck by a motor vehicle as he crossed Market Street, Mudgee. In the circumstances of Mr Cameron's death I find that it is not possible to find any reasonable hypothesis relating his being struck by a motor vehicle to his service. The material before me raises no reasonable hypothesis that Mr Cameron's death was war-caused. I am therefore satisfied beyond reasonable doubt that there is no sufficient ground to grant the claim, and the claim is refused. 10 In 2000 the applicant lodged a claim under s 14 of the Act for a pension. The applicant provided the following information as to the connection between Mr Cameron's service and his death: On 18-4-80 my husband was struck by a car & died. I believed that his death can be related to his service as he was a gunner in an anti aircraft battery, seeing action in New Guinea and Moratai wherehe was involved in a large number of engagements with enemy forces. The acoustic trauma caused the onset of his loss of hearing also effected his personal & professional life, with his employer at Jenolan Caves dismissing him on safety grounds due to his hearing (see attached) loss. His hearing became so bad that on the 18-4-80 he did not hear the car coming and just walked out in its path. 11 On 2 January 2001, the Commission refused the claim. A review of that decision was sought under s 31 of the Act. The grounds of review were expressed by the applicant as follows: My husband had a war-related smoking habit. He suffered from severe airways disease with heart disease & left ventricular failure. The day he was killed he was suffering from pneumonia. The breathing difficulties suffered by the veteran slowed him down, distracted him and made him unable to react quickly. I believe the elderly, slowly moving veteran could not avoid the accident. 12 On 5 September 2001, the Veteran's Review Board affirmed the decision of the Commission. Review was sought under s 175 of the Act to the AAT.