�
VeRBosity
Journal of the Veterans' Review Board
�Decisions of the
Federal Court of Australia
�
Service in Northern Territory during WW2 - test for determining whether operational service
Bramwell v Repatriation Commission
Weinberg J
9 October 1998
[Full Text]
�
Mrs Bramwell lodged an appeal to the Federal Court against a decision of the Tribunal that the death of her late husband was not war-caused. The late veteran had served in the Australian Army during World War 2 and did not serve outside Australia.
The Repatriation Commission's delegate had accepted that the veteran rendered operational service, having served more than three months in the Northern Territory north of parallel 14 degrees 30 minutes in 1942-43, in terms of s 6(1)(b) of the VE Act. On review, the VRB also accepted that the veteran had rendered operational service.
When the matter came before the Tribunal, the Commission raised the issue of whether the veteran had rendered operational service. This was based on new material which indicated that he was medically examined in Alice Springs on 30 October 1942, which made it impossible for him to have accumulated three months continuous full-time service in the operational area of the Northern Territory. On this basis, the Tribunal found that the veteran had not rendered operational service as defined in s 6(1)(b). As a consequence, the relevant standard of proof to be applied in determining whether his death was war-caused was that of "reasonable satisfaction" as set out in s 120(4), rather than that of "beyond reasonable doubt" as set out in ss 120(1) and 120(3). The Tribunal affirmed the decision that his death was not war-caused.
On appeal to the Federal Court, Mrs Bramwell's counsel raised four questions of law as follows:
- whether it had been open to the Tribunal to find that the deceased had not rendered operational service, given the manner in which that question had been determined by the delegate, and by the VRB, and the constraints of subs 175(1) of the VE Act;
- whether the Commission was estopped from contending before the Tribunal that the deceased had not rendered operational service;
- whether the Tribunal had erred in law in failing to determine the question whether the deceased had rendered operational service in accordance with the standard of proof provided for in ss 120(1) and 120(3) rather than that provided for in s 120(4) of the Act; and
- whether the Tribunal erred in law in finding that the deceased had not rendered operational service.
Jurisdiction
Mrs Bramwell's counsel submitted that the Tribunal was not empowered to review the decision of the Commission that the late veteran had rendered operational service. The only decision which the Tribunal was entitled to review was that the death of the veteran was not related to or caused by his war service.
Weinberg J rejected this submission saying that the issue of whether the deceased had rendered operational service was properly before the Tribunal because it was relevant to, and formed part of, the decision under review - that decision being that the death of the deceased was not war-caused.
His Honour said:
"In a case of merit review there is a distinction to be drawn between the decision of the Commission, as affirmed by the Board, and its reasons for decision. The Tribunal is given the task of reviewing 'the decision of the Commission that was so affirmed' by the Board - s 175(1)(a). It is the whole of that decision which is to be reviewed. In merit review that must include a capacity to depart from the process of reasoning which led to that ultimate decision. In carrying out its statutory responsibility, the Tribunal is in no way inhibited by the language of s 175(1) from reasoning to a conclusion upon a basis which differs from that which found favour with the Commission, and with the Board.
...
The fact that the Tribunal found that the deceased had not rendered 'operational service' within the meaning of that expression in s 6(1)(b) led it to conclude that the standard of proof to be applied in considering the question of causation was that embodied within s 120(4), and not the more benevolent standard contained within ss 120(1) and 120(3). The determination of which standard of proof was to apply to the resolution of the question before the Tribunal was an integral part of its task of review.
It was the function of the Tribunal in reviewing the decision of the Commission, as affirmed by the Board, to consider the matter afresh. It was, in other words, its task to conduct a merit review. It was obliged to review that decision upon the material before it, together with the material which had been before the Commission and before the Board. Its responsibility was to arrive at the correct and preferable decision. This responsibility could not be discharged if the Tribunal were prevented from considering what standard of proof should govern the resolution of the issue before it."
Estoppel
Counsel submitted that the Commission was estopped from raising before the Tribunal whether the veteran had rendered operational service. This had been tacitly conceded by the Commission in its earlier decision.
Weinberg J rejected this argument on the basis that the Court had consistently held that the doctrine of issue estoppel does not apply in proceedings of the Tribunal. Estoppel by conduct did not apply in this case as the question of whether the veteran had rendered operational service involved the determination of rights and obligations rather than the exercise of administrative discretions. There was also no abuse of process on the Commission's part.
Standard of proof
Counsel submitted that in determining whether the veteran had rendered operational service, the Tribunal had erred in law in failing to apply the standard of proof in s 120(1) and (3) rather than the "reasonable satisfaction" standard in s 120(4).
Weinberg J rejected this submission and accepted the Commission's argument that the language of s 120(4), given its ordinary and natural meaning, makes it plain that the Commission, in making any determination or decision in respect of a matter arising under the Act, is required to decide that matter to its reasonable satisfaction. This must include a determination or decision as to operational service.
Operational service
Counsel submitted that the Tribunal had erred in law in failing to find that the veteran had rendered operational service within the meaning of s 6(1)(b).
Weinberg J doubted that this ground raised a question of law which could be reviewed by the Court. His Honour said that there was ample evidence before the Tribunal to suggest that the veteran had not rendered the requisite period of operational service and no error of law was demonstrated.
Formal decision
The Court dismissed Mrs Bramwell's appeal.
[Ed: Mrs Bramwell has lodged an appeal to the Full Federal Court.]