Hall v Repatriation Commission

REASONS FOR JUDGMENT 1 This is another case concerning the relationship between alcohol dependence and earlier military service, on this occasion for the purposes of the Veterans Entitlements Act 1986 (the Act). The applicant is the widow of Robert Butler (the Veteran), who died on 17 December 2002. Her claim for a war widow's pension on the basis that the Veteran's death was war caused was rejected by the Repatriation Commission (the Commission) and on 6 July 2007 the Administrative Appeals Tribunal (the Tribunal) affirmed the rejection (Hall v Repatriation Commission [2007] AATA 1514). There is no need to explain the scheme of the Act and discuss the leading cases. The cases are well known, although far from easy to apply, particularly in relation to s 120(3) and s 120A. I will not set out all of the facts but will deal with those that are necessary to deal with the limited issues that arise for decision. The primary proceeding is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). There is a back up proceeding pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) in the event that any issue is not a question of law for the purposes of s 44 of the AAT Act. 2 The Veteran served in the Royal Australian Navy between 4 March 1948 and 14 June 1973. He had many periods of operational service, commencing on 27 June 1950 in Korea and ending on 25 May 1969 in Vietnam. The Tribunal found that the kind of death suffered by the Veteran was that of cerebrovascular disease in relation to which there was an applicable Statement of Principles (SOP), namely Instrument No 51 of 2006 currently in force. There had been previous Instruments but the matter proceeded on the basis that the current Instrument would govern. 3 The SOP, so far as is relevant, was in the following form: "Factors that must be related to service 5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person. Factors 6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cerebrovascular accident or death from cerebrovascular accident with the circumstances of a person's relevant service is: … (f) drinking an average of at least 250 grams of alcohol per week, for at least the one year before the clinical onset of cerebrovascular accident;" 4 The Tribunal found that there was material pointing to a hypothesis linking the Veteran's kind of death to alcohol or, in the alternative, to alcohol causing or contributing to hypertension and/or cardiomyopathy. The Tribunal found that factor 6(f) existed. That finding is not challenged on this appeal and must be taken to be correct. 5 The structure of the Tribunal's decision was as follows. Certain basic facts were set out then there was a heading "Issues", then a heading "Decision" which commenced "For the reasons outlined later in this decision we conclude that …". A number of headings followed, the last being "Does the claim succeed?". The last part of what was described as "Decision" is as follows: "(e) The claim does not succeed. A hypothesis postulating that Mr Butler's kind of death was caused and/or contributed to by the consumption of alcohol in specific quantities was found to be reasonable. However, we were not satisfied beyond reasonable doubt that such alcohol consumption was war-caused." (Emphasis added.) 6 That gives rise to the first ground of appeal. The last sentence reverses the effect of s 120(1) of the Act. It is well established that, once a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the person has been raised, then the death will be determined as war caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination (s 120(1) of the Act; Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, corrected in a manner not relevant here in Bull v Repatriation Commission (2001) 188 ALR 756 at [14]-[15]). 7 It is submitted for the Commission that this sentence was a mistake or drafting error and did not reflect the actual reasons for decision. It was submitted that the only "decision" as such was that the decision under review was affirmed and that the reasons for decision could not be subdivided into the actual decision and reasons for decision, notwithstanding the structure of the reasons and what was said by the Tribunal as to that. Counsel for the Commission drew attention to the form of the concluding paragraphs of the reasons for decision in which the correct approach is recited. 8 That explanation would be convincing were it not for the reasoning of the Tribunal which is consistent with seeking to establish the necessary link rather than disproving it. The following findings are of particular significance: "• Neither Dr Dinnen or Professor Mattick were able to identify in Mr Butler's periods of operational or defence service, particular events which could be objectively defined or perceived as severe stressors and/or psychosocial stressors, thereby providing the necessary link between Mr Butler's alcohol dependence and his service;