Borrett v Repatriation Commission

REASONS FOR JUDGMENT 1 The applicant, Marguerite Florence Borrett, is the widow of John Borrett ("the veteran"). The veteran was born on 23 December 1915 and the applicant on 9 June 1919. The applicant and the veteran married on 20 November 1942. 2 The veteran served in the RAAF during the Second World War. The whole period of his service (from 25 April 1942 to 8 January 1946) constituted operational service under the Veterans' Entitlements Act 1986 ("the Act"). During his war service the veteran was seconded to the Royal Canadian Air Force ("RCAF") from 11 December 1942 to 4 November 1943 during which time he attempted a pilots' course. He was unsuccessful in qualifying due to illness and returned to Australia. He later served in the Pacific area. 3 The veteran died on 6 February 1972 aged 56 and the cause of death was certified as being terminal carcinoma (three years, six months) and cancer of the large colon. Although the death certificate certified colon cancer as a cause of death, the clinical evidence was that the veteran had suffered cancer of the rectum. 4 On 19 February 1998 the applicant lodged a claim with the Repatriation Commission ("the Commission") for a widows' pension pursuant to the Act. This claim was refused by the Commission on 24 February 1998 and on review by the Veterans' Review Board affirmed the Commission's determination. The applicant then sought review by the Administrative Appeals Tribunal ("the AAT"). 5 As the veteran had operational service as defined in s 6A of the Act the way in which the claim must be assessed is set out in s 120 of the Act which relevantly provides: "120 Standard of proof (1) Where a claim under Part II 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 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) or (2) in respect of … the 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 injury, disease or 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, …. … any onus of proving any matter that is, or might be, relevant to the determination of the claim or application." (Emphasis added) 6 Since the applicant's claim was lodged after 1 June 1994, s 120A of the Act also applies. It provides that: "120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles … (3) For the purpose 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 determined under subsection 196B(2) or (11); or (b) a determination of the Commission under subsection 180A(2); that upholds the hypothesis. 7 In the present case it is not disputed that a Statement of Principles ("SoP") has been made and that s 120A has been satisfied. 8 In Byrnes v Repatriation Commission (1993) 177 CLR 564 the High Court considered s120 and said at 571: "The position may be summarised as follows: (1) First, sub-s (3) of s.120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with the war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s (1) of s. 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis." (Emphasis added) 9 Section 120A was inserted into the Act after that decision. The Full Federal Court expanded the two step process to take s 120A into account in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92 in the following terms: "1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). … 3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail. 4. The tribunal must then proceed to consider under 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, … If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved." (Emphasis added)