Gittins v Repatriation Commission [2007] FCA 1380

FEDERAL COURT OF AUSTRALIA

Gittins v Repatriation Commission [2007] FCA 1380 ADMINISTRATIVE LAW — appeal from decision of Federal Magistrates Court of Australia — pension entitlement for dependent spouse of veteran — non-Hodgkin's lymphoma — whether reasonable hypothesis connecting veteran's death and service — application of principles relevant to analysis — no error of law. Veterans' Entitlements Act 1986 (Cth), ss 8(1)(b), 120, 120(1), 120(3) and 120A Gittins v Repatriation Commission [2007] FMCA 167 affirmed Repatriation Commission v Deledio (1998) 83 FCR 82 cited Repatriation Commission v Hill (2002) 69 ALD 581 applied Repatriation Commission v McKenna (1998) 52 ALD 72 referred to PATRICIA ANN GITTINS v REPATRIATION COMMISSION VID 211 OF 2007

MARSHALL J

30 AUGUST 2007

MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 211 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: PATRICIA ANN GITTINS

Appellant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: MARSHALL J DATE OF ORDER: 30 AUGUST 2007

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellant pay the respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 211 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: PATRICIA ANN GITTINS

Appellant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: MARSHALL J

DATE: 30 AUGUST 2007

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The appellant, Mrs Gittins, appeals from a judgment of the Federal Magistrates Court which dismissed her appeal from a decision of the Administrative Appeals Tribunal (Tribunal) (see Gittins v Repatriation Commission [2007] FMCA 167). The Tribunal affirmed a decision of the Veterans' Review Board (Board) that Mrs Gittins was not entitled to a war widow's pension under the Veterans' Entitlements Act 1986 (Cth)(Act).

BACKGROUND FACTS 2 On 16 October 2002, Mrs Gittins applied for a war widow's pension. Her husband, Mr Philip Gittins, had died on 25 July 1997. Mr Gittins was a veteran who served in the Australian Army from July 1949 until December 1971. He had served on operations in Japan from July 1953 until July 1955. 3 Mr Gittins died as a consequence of a low grade non-Hodgkin's lymphoma. In 1976, Mr Gittins worked as a teacher at Brighton Grammar School. At that time, at the urging of his headmaster, Mr Gittins saw a surgeon about a mass on the left side of his neck. The mass has been present since about 1960 and, over time, had grown more visible without causing any symptoms. 4 Mr Gittins became unwell in April 1997. He was admitted to hospital on 10 July 1997, with chemotherapy commencing one week later. As mentioned above, Mr Gittins died on 25 July 1997. 5 Mrs Gittins contended before the Board that her husband's death was war-caused in that it arose out of his operational service in Japan. She said that her husband had an inability to obtain appropriate clinical management for his non-Hodgkin's lymphoma because of his fear or phobia of doctors and hospitals, arising out of his experiences when hospitalised in Japan.

THE LEGISLATIVE CONTEXT 6 Section 13 of the Act establishes an entitlement in the dependants of a veteran to a pension where the death of the veteran was war-caused. Under s 8(1)(b) of the Act, "the death of a veteran shall be taken to have been war-caused if…the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran…". 7 According to the Full Court of this Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, a four step process is required under ss120 and 120A of the Act to determine if an injury or death is war-caused. These four steps can be summarised as: · the material before the Tribunal is to be examined to see if it points to a hypothesis connecting the death with the circumstance of the veteran's service. In the absence of a hypothesis, the claim fails; · if the material does raise a hypothesis, the Tribunal must see if there is a Statement of Principles (SoP) in force. If there is no SoP in force that fits the hypothesis, it will be taken to not be reasonable and the claim fails; · if an SoP is in force relevant to the hypothesis, the Tribunal will consider if the hypothesis is reasonable. If the hypothesis is consistent with the template found in the SoP, the hypothesis is reasonable. If the hypothesis fails to fit within the template, the claim fails; · the Tribunal must then consider whether it is satisfied beyond all reasonable doubt that the death was not war-caused. If it is not so satisfied, the claim succeeds. If it is so satisfied, the claim fails. 8 In Repatriation Commission v Hill (2002) 69 ALD 581 (Hill) at [55], a Full Court of this Court approved the judgment of Goldberg J in Repatriation Commission v McKenna (1998) 52 ALD 72, determining that the hypothesis which is to be held by an SoP is that which connects the disease with the circumstances of the veteran's service. There must be a hypothesis, in the words of Riley FM in the judgment below at [21], "which starts with the disease … and ends with the service". 9 Further, in Hill at [55], the Court said "a hypothesis connecting a disease with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SoP".

THE TRIBUNAL 10 The Tribunal observed that Mrs Gittins relied on SoP No 37 of 2003, concerning non-Hodgkin's lymphoma. In particular, she relied on factor 5(j) of the SoP which refers to "… the inability to obtain clinical management for non-Hodgkin's lymphoma." 11 Clause 5(j) of the SoP provides: …[t]he factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting non-Hodgkin's lymphoma or death from non-Hodgkin's lymphoma with the circumstances of a person's relevant service are: … (j) inability to obtain appropriate clinical management for non-Hodgkin's lymphoma. 12 Clause 6 of the SoP qualifies cl 5(j). It states: Paragraph 5(j) applies only to material contribution to, or aggravation of, non-Hodgkin's lymphoma where the person's non-Hodgkin's lymphoma was suffered or contracted before or during (but not arising out of) the person's relevant service… 13 The Tribunal found: · Mr Gittins died from non-Hodgkin's lymphoma; · Mr Gittins suffered from this disease for up to two years before his death; · there was material before it pointing to a hypothesis connecting the death with war service; · the hypothesis was that Mr Gittins was unable to obtain appropriate clinical management for his lymphoma; · there was an SoP in force relevant to such a hypothesis – SoP 37 of 2003; · the hypothesis was not consistent with the template found in the SoP because of the lack of evidence that Mr Gittins had contracted the disease before his operational service; and · as the hypothesis failed to fit the template of the SoP, the claim could not succeed. 14 The Tribunal then considered the second hypothesis raised on behalf of Mrs Gittins. It described the hypothesis in its reasons for decision at [3]: As a result of her husband's fear or phobia of doctors and hospitals arising from his experience in Japan, he failed to obtain and receive adequate and appropriate medical advice for his lymphoma. 15 The Tribunal considered that there was material pointing to that hypothesis which connected the death with war service. However, the Tribunal found at [7]: Any connection between Mr Gittins death in 1997 from non-Hodgkin's lymphoma and his experiences while hospitalised in Japan in 1954 and 1955 are too remote and too tenuous. 16 The Tribunal said that although there was an absence of an SoP for fear or phobia of that kind, this absence did not prevent it considering whether the hypothesis was reasonable. It nonetheless held the hypothesis to be too tenuous and too remote to be reasonable.

THE FEDERAL MAGISTRATES COURT 17 Her Honour below considered that the Tribunal erred by examining the second hypothesis. Having found that the cause of death was non-Hodgkin's lymphoma and that there was an SoP which applied to the disease, her Honour considered at [50] that the Tribunal should have given no further consideration to see if "[t]he veteran's inability to obtain appropriate clinical management of his lymphoma did not fit within the proviso in clause 6 of the relevant SoP". 18 Her Honour held that, as the claim did not fit within the template, it failed. In addition, her Honour said at [51]: …[t]he Tribunal should not have looked at any alternative hypothesis because the SoP for non-Hodgkin's lymphoma set out the matters that needed to exist for a claim based on the relevant kind of death to succeed. 19 Her Honour concluded at [52]: Where there is only one cause of death, and a SoP applies to that kind of death, that SoP governs the determination of whether the hypothesis that the death arose from service is reasonable. 20 The Court below held that cl 6 of the SoP prevented it from applying to Mr Gittins and that the first hypothesis had not been made out. It also considered the Tribunal's dealing with the second hypothesis to be an immaterial error. The Court dealt with other aspects of the Tribunal's decision. Those other aspects are not relevant to the appeal.

CONSIDERATION 21 The Tribunal said in its reasons for decision at [56]: As the late veteran has operational service, s 120(1) and s 120(3) of the Act are applicable. Section 120A requires the Tribunal to apply any relevant SoPs. The parties initially relied upon SoP No 37 of 2003 concerning non-Hodgkin's lymphoma, and in particular, the applicant relied upon factor 5(j), which states the inability to obtain appropriate clinical management for non-Hodgkin's lymphoma. In the course of the hearing the applicant changed the emphasis on the hypothesis raised, submitting that Mr Gittins' death had occurred as a result of a failure to obtain adequate and appropriate treatment for his condition because of his war-caused phobia for medical intervention including contact with doctors. There is no SoP for a phobia. 22 The reference to a change of emphasis on the hypothesis raised is the correct way of considering the gloss placed by Mrs Gittins' legal representative on the hypothesis, the subject of SoP No 37 of 2003. The so-called second hypothesis was not really a hypothesis at all but an alternative way of stating the first hypothesis. 23 Further, the Federal Magistrate was correct in stating that there was only one cause of death. Mr Gittins did not die of phobia, but because of an inability to obtain clinical management for non-Hodgkin's lymphoma. As there was a relevant SoP for that cause of death, it had to be considered. On having considered the foregoing, it was established by the Court below that Mr Gittins' circumstances did not fit the template contained in the SoP. That was the end of the matter. The claim should have been rejected on this basis alone. However, Riley FM correctly determined that the Tribunal properly applied "the first three Deledio steps" and that it was unnecessary for the Tribunal to consider step four. The Federal Magistrate also correctly determined at [52] that the SoP that applied to the kind of death found "governs the determination of whether the hypothesis that the death arose from relevant service is reasonable." 24 Counsel for Mrs Gittins contended that the Tribunal "implicitly" found that phobia was one of the causes of death. An examination of the Tribunal's reasons reveals no such implicit finding. In any event, a finding should be precise, not implicit. In its reasons for decision, the Tribunal refers at [1] to death, "from a low grade non-Hodgkin's lymphoma". "Phobia of doctors" is an aspect of, or a reason for, the "inability to obtain appropriate clinical management". It was not the actual medical cause of Mr Gittins' death. In fact, at [17], the Tribunal found that any connection between Mr Gittins' death and his experiences in Japan (that is, his phobia) were "too remote and too tenuous". The Tribunal said at [85]: There is no evidence to substantiate a claim that Mr Gittin's hospital experiences in 1954 and 1955 caused his phobia. Nor can the claim be categorically refuted. There is merely insufficient evidence. The Tribunal also said at [87]: Mr Gittins was hospitalised after his operational service on three occasions and also saw several doctors in relation to minor illnesses, discharge medicals and the like, and on no occasion reported a phobia relating to medical or hospital treatment. 25 It is unnecessary for the Court to deal with the claim that the Tribunal failed to provide adequate reasons for its rejection of the second hypothesis in circumstance where it was not necessary for the Tribunal to consider it. 26 As the submissions of Counsel for Mrs Gittins have failed to identify an error in the reasons of the Federal Magistrate, the appeal from her Honour's decision must be dismissed with costs. I certify that the preceding twenty-five (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate: Dated: 30 August 2007

Counsel for the Appellant: Mr D. De Marchi

Solicitor for the Appellant: De Marchi and Associates

Counsel for the Respondent: Ms A. McMahon

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 30 August 2007

Date of Judgment: 30 August 2007