Neal and Repatriation Commission [2002] AATA 63 (16 January 2002)

Last Updated: 20 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 63

ADMINISTRATIVE APPEALS TRIBUNAL)

N° V2000/1504

VETERANS' APPEALS DIVISION)

ALONA LILLIAN ANNE NEAL

Applicant

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: Mr J.R. Handley, Senior Member

Dr P. Fricker, Member

Date: 16 January 2002

Place: Melbourne

Decision: The decision under review is affirmed.

. . . . . Sgd. Mr J. Handley . . . . . .

Senior Member

VETERANS' AFFAIRS -- death from cancer of rectum - factor 5(c) - whether deceased consumed 250 kilograms of alcohol in any 25-year period prior to clinical onset - 250 kilograms is equivalent of 2.75, 7.02 glasses daily - material did not point to this quantity - reasonable hypothesis not raised - decision affirmed

Veterans' Entitlements Act 1986 s.120

Statement of Principle No. 25 of 1996

East v Repatriation Commission (1987) 74 ALR 518

Bushell v Repatriation Commission (1992) 109 ALR 30

Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

16 January 2002 Mr J.R Handley, Senior Member

Dr P. Fricker, Member

1. At the conclusion of the hearing, oral reasons for decision were delivered at the request of counsel who appeared on behalf of Mrs Neal. The reasons were delivered following a short discussion as to whether the applicant widow intended to either withdraw the proceedings or agree to have the minutes of consent filed which affirmed the decision under review or whether she preferred to have brief oral reasons delivered. Mr Stevenson (who appeared on behalf of the applicant widow) requested ". . . just a brief oral reason affirming the decision under review" (trans, p.31).

2. The transcript then records Mr Purcell (who appeared on behalf of the respondent) asking Mr Stevenson whether he was agreeing to minutes of consent or asking the Tribunal "to give a judgment". Mr Stevenson is then recorded in the transcript as responding:

Well, just affirm, yes, the Tribunal just affirm the decision under review, yes. Because, I mean, that is my case. I have got no more evidence, and on the evidence I would have to concede I haven't made it.

3. The above discussion occurred also after a period of time where we stood down at the conclusion of the evidence to allow Mr Stevenson to obtain instructions from his client who was not present at the Tribunal.

4. On 20 November we made a decision in the following terms:

For the reasons given orally at the conclusion of the hearing IT IS DECIDED the decision under review is affirmed.

5. On 3 December the District Registrar (Melbourne Registry) of the Tribunal received a letter from the solicitors for the applicant (dated 30 November) requesting reasons pursuant to section 43(2A) of the Administrative Appeals Tribunal Act 1975.

6. On 4 December 2001 the District Registrar wrote to applicant's solicitor having obtained a typed copy of the reasons for decision which were delivered orally at the conclusion of the hearing. The letter to the applicant's solicitor (omitting irrelevant parts) reads as follows:

. . .

I enclose a copy of the printed reasons for decision, delivered orally at the conclusion of the hearing. The reasons have not been edited and obvious spelling and format errors have not been corrected.

7. It was intended that the typed copy of the reasons delivered orally would satisfy the solicitor's request for written reasons. This, apparently, was not so because on 20 December the applicant's solicitors wrote to the District Registrar (omitting relevant parts) in the following terms:

. . .

We thank you for the provision of the Draft Judgment of Mrs Neal.

We shall be pleased to be informed if the Tribunal proposes as requested by the Applicant in our letter of 30 November 2001 to provide written reasons of decision or is the oral decision intended to stand as written reasons of the Tribunal and if so a certified copy to be sent to us and if it could be certified as a correct copy of the Tribunal.

8. On 21 December the District Registrar wrote to the applicant's solicitor referring to his letter of 20 December in the following terms:

. . .

Unfortunately, a copy of the oral reasons for Decision were not retained on the Tribunal file when my letter of 4 December was forwarded to you. I am therefore unable to presently certify your request.

It is proposed to obtain a complete transcript of the proceedings and deliver written reasons.

9. A transcript of the proceedings was subsequently requested and was received by the District Registrar on 8 January. The reasons for decision, which follow, have been prepared by reference to the transcript. They are not intended to be a substitute or in lieu of the oral reasons for decision delivered at the conclusion of the hearing. The oral reasons for decision which have been reduced to writing (and which have previously been forwarded to the representatives) are annexed to these reasons.

10. Mrs Neal applied as the widow of the late William James Neal who was born on 29 July 1920 and died on 6 January 1991 at the age of 71 years. Mr Neal was a member of the Australian Army between 4 March 1941 and 17 December 1945. He was engaged in service overseas which is "operational service" within the meaning of the Veterans' Entitlements Act 1986 ("the Act") and as such Mrs Neal is entitled to the beneficial standard of proof.

11. The deceased died from a metastatic carcinoma of the rectum. It was contended by the applicant that alcohol consumption was attributable to or connected with service and the alcohol consumption contributed to death. The only relevant Statement of Principles ("SoP") within the assessment period (commencing on 16 August 1999) was Instrument Nº 25 of 1996. The applicable factor relied upon by Mrs Neal was factor 5(c), which records:

. . .

(c) drinking at least 250 kilograms of alcohol (contained within alcoholic drinks) within any 25 year period before the clinical onset of malignant neoplasm of the rectum;

12. There was no issue between the parties that the clinical onset of the fatal cancer was May 1985 when it was then diagnosed.

13. The only other SoP concerning Malignant Neoplasm of the Rectum within the assessment period was Instrument Nº 3 of 1998 which amended Instrument Nº 25 of 1996 but only with respect to an altered definition of what constitutes "malignant neoplasm of the rectum", an altered ICD coding and an altered factor with respect to the quantity of cigarettes under factor 5(b). The factor relied upon within Instrument Nº 25 of 1996 was not altered by the amending Instrument and the altered definition of malignant neoplasm of the rectum was not an issue in these proceedings.

14. At the commencement of the hearing there was discussion between us and the representatives for the parties as to certain issues which emerged from the respondent's Statement of Facts and Contentions. It was initially pleaded by the respondent that the applicant would need to establish that her husband suffered an anxiety state which gave rise to alcohol consumption in order to satisfy the hypothesis being advanced. It was also put that the applicant would need to satisfy an applicable SoP with respect to the anxiety state.

15. Mr Purcell, on behalf of the respondent, withdrew that part of the Statement of Facts and Contentions and the review proceeded only upon the issues of whether the applicable quantity of alcohol was consumed in any 25-year period prior to the date of clinical onset and whether there was any relevant causal connection between the extent of consumption and service.

16. On the day of the hearing Mrs Neal was unwell, apparently having suffered from the effects of asthma in the days prior to the hearing. She gave her evidence by telephone.

17. Mrs Neal said that her husband refused to talk to her about his service, however she was aware he served in the Middle East as a "gunner". She knew the late Mr Neal prior to service and described him to be a "jolly boy". She denied that he was of a nervous personality prior to service.

18. Mrs Neal said that her husband did not consume alcohol until he was about 30 years of age, being many years after he was discharged from service. In fact, she said that she and the late Mr Neal were married at the Wentworth Hotel in Collins Street whilst he was enlisted and he did not then consume alcohol because he was to return to service on the following day. She said her late husband had his first "glass of beer" at the encouragement of her father who was concerned that Mr Neal was apparently "lean".

19. Thereafter the Mr Neal did drink beer but this was the only form in which alcohol was consumed.

20. Mrs Neal said that her husband eventually obtained employment at the Naval Dockyards in Williamstown and would purchase bottled beer to have as a supply at home for the purpose of entertaining friends and work mates which apparently was a regular routine on Sunday mornings. She said her husband would have 12 bottles of beer on hand or would replenish the existing stock of bottled beer to 12 bottles. She said that he initially did purchase 12 bottles of beer but thereafter would only purchase beer to replace that which was consumed. This issue was thoroughly examined during the hearing both in evidence-in-chief, in cross-examination and in questions from us. This was because an innuendo had emerged from the T documents filed that the late Mr Neal purchased 12 bottles of beer every week.

21. Mrs Neal told us that her husband's drinking habit was to consume one pot of beer on Thursdays after work while he and workmates waited for a local bus to take them home. Thursday was the payday and work finished earlier on that day than other days. Mrs Neal said that her husband then consumed 1 pot of beer only which she understood to be 10 ounces. She was adamant that this was the only time he consumed beer during the week outside the house and it was then only 1 pot. She said he did not consume beer during the day or have counter lunches.

22. Nightly she said that she and her husband would have a 7-ounce glass of beer each when he arrived home from work. In answer also to further questions upon this issue she told us that a bottle of beer which had been opened, but which had not been emptied, would be "stopped" and reopened on the following day. That is to say, the glass of beer that she and her husband consumed each prior to evening meal inevitably caused beer to remain in a bottle.

23. It followed therefore on the evidence of Mrs Neal that her husband's drinking was confined to one 10-ounce pot of beer on Thursdays and one 7-ounce glass of beer each workday night. Some beer was consumed when visitors attended the house which inevitably occurred on Sundays, but, whilst the material with respect to the amount consumed on these occasions was deficient, Mrs Neal did say on a number of occasions when giving her evidence that her husband was ". . . a social drinker" and only drank ". . . when he wanted it" (trans, p.13). Whilst Mr Neal also enjoyed the fellowship of members of a local lodge, he did not consume on the occasions of lodge meetings because he drove a car to and from the meeting.

24. Mrs Neal was taken in cross-examination to extracts from a number of medical records, filed by the respondent prior to the commencement of the proceedings. She agreed that in October 1959 her husband had not then been consuming beer for about 18 months, as was recorded. Mrs Neal recalled that her husband then had problems with his "digestion". She agreed also that at June 1961 he drank only occasionally and in July 1961, when he was being treated for earache, he was not then drinking.

25. At November 1964 the medical records record the deceased as being an occasional drinker only and at June 1968 it was recorded that he was a "weekend drinker".

26. Mrs Neal clarified a reference in the medical records of May 1974 and June 1974 of the deceased consuming "one bottle [of beer] per night" as meaning a "stubby" of beer.

27. In answer to some questions from us, Mrs Neal confirmed that her husband retired at the age of 60 years, which was 3 or 4 years before the cancer was diagnosed. She said, after he retired he "didn't seem as if he wanted it [beer]" and her husband then stopped purchasing beer. She said he did not cease beer drinking totally and ". . . He just didn't seem as if, you know, it interested him". She was also adamant that he did not then consume alcohol daily (trans, p.28).

28. At the conclusion of the evidence we indicated to Mr Stevenson that we had asked Mrs Neal a number of questions to clarify the alcohol history. We also indicated that the quantity of alcohol found within factor 5(c) amounted to an average of 2.75, 7-ounce glasses per day within the 25-year period. Mr Stevenson indicated that he had no quarrel with those calculations. We then indicated - and were adamant to advise that we had not reached any concluded view - that we could not see on the evidence that there was material which pointed to the deceased having consumed an average of 2.75, 7-ounce glasses of beer per day for an average of 25 years. Mr Stevenson then indicated ". . . on my own calculation I had the greatest difficulty in getting up to the 250 kilograms or anything really like it" (trans, p.30).

29. It was in those circumstances that we invited Mr Stevenson to privately discuss these issues with Mrs Neal and we would, in the circumstances, stand down. We also asked him to reassure Mrs Neal that the introduction of Statements of Principles have, on occasions, required an examination of the lifestyle of a numbers of veterans which may be regarded as being unnecessarily intrusive or intimate, and sometimes is regarded as being offensive. This is particularly so when a history of alcohol consumption is being obtained.

30. It was upon the resumption of the hearing that Mr Stevenson indicated to us that he was instructed to request ". . . a brief oral reason affirming the decision under review" (trans, p.31).

31. When we delivered oral reasons for decision, we did not then have the Full Court decision of Repatriation Commission v Deledio (1998) 49 ALD 193 with us. However, we did indicate that stages 1 and 2, as the Court concluded, did exist because there was material that pointed to a hypothesis connecting service with death. We were also aware that a SoP was in existence.

32. We indicated to the parties that we believed that the application failed having regard to the third stage of the Deledio analysis because we could not be satisfied that the hypothesis raised was "reasonable". This was because the hypothesis was not consistent with the template found within the SoP because it did not contain one or more of the factors which existed as a minimum and which was related to service. It followed therefore that the hypothesis was not reasonable.

33. It was apparent to us, on the material, that the quantity of alcohol consumed by the deceased did not reach the level prescribed by factor 5(c). It followed therefore that that factor did not exist as a minimum and a reasonable hypothesis could not therefore be raised.

34. We found the applicant, Mrs Neal, to be a witness of truth and who, whilst anxious to ensure her husband's memory was not tarnished by these proceedings and that his good reputation remained preserved, did not seek to embellish or exaggerate for the purposes of satisfying the relevant SoP. Indeed, it would appear from the documented material lodged prior to the proceedings and referred to by Mr Purcell in cross-examination, that there was much to support the deceased being a modest or social drinker only.

35. We could not be satisfied that the deceased did consume an average of 2.75, 7-ounce glasses of beer daily for the period of 25 years (being 250 kilograms of alcohol) preceding the date of clinical onset or in any 25-year period prior to that date. It followed therefore that the application must fail.

36. It also followed that we were obliged to affirm the decision under review, affirming the rejection of the claim for pension.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.

Signed: .....C. Irons ....................................

Secretary

Date/s of Hearing 1 November 2001

Date of Decision 16 January 2002

Counsel for the Applicant Mr Stevenson

Solicitor for the Applicant

Counsel for the Respondent Mr Purcell

Solicitor for the Respondent