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Onorato v Repatriation Commission

[2011] FCA 1507

COURT Federal Court, Sydney
JUDGE Katzmann J
DECISION The appeal was allowed and remitted to the Tribunal
ISSUES Standard of proof for the existence of a disease in a sub-hypothesis


Mrs Onorato’s late husband, Joseph, rendered operational service as an anti-aircraft gunner during World War 2. Mrs Onorato applied for a widow’s pension. The delegate of the Repatriation Commission (Commission) refused Mrs Onorato’s claim. The Veterans’ Review Board (VRB) affirmed the Commission’s decision. Mrs Onorato sought further review by the Administrative Appeals Tribunal (Tribunal).

The Tribunal’s reasoning

Before the tribunal Mrs Onorato contended that her late husband suffered not only from ischaemic heart disease but also from hypertension and an anxiety disorder. Her case was based on the hypothesis that her late husband suffered an anxiety disorder resulting from his war service, and the anxiety disorder caused the hypertension which, in turn, caused the ischaemic heart disease that caused his death. There was no dispute that Mr Onorato died from ischaemic heart disease or that he suffered from hypertension.

Turning to the claimed anxiety disorder, the Tribunal considered that it had to decide whether Mr Onorato suffered a diagnosable anxiety disorder by applying the standard of reasonable satisfaction pursuant to s 120(4) of the Act. Only then would it be required to consider any relevant SoP and apply the standard of proof in s 120(1) and (3).

The Tribunal rejected Mrs Onorato’s claim that her husband had also had an anxiety disorder and affirmed the decision under review. Mrs Onorato then appealed from the Tribunal’s decision to the Federal Court.

Grounds of appeal

Mrs Onorato appealed to the Federal Court on the question of whether the tribunal applied the wrong standard of proof (or asked itself the wrong question) when it decided that Mr Onorato had not suffered from an anxiety disorder.

The Court’s Consideration

Standard of proof for the existence of a disease in a sub-hypothesis

The first issue the Court turned to consider was whether the existence of the anxiety disorder should be determined according to the standard of “reasonable satisfaction” or the “beyond reasonable doubt” standard.

Mrs Onorato contended that once the tribunal determined to its reasonable satisfaction the kind of death the veteran suffered, the standard of “reasonable satisfaction” was exhausted.

Conversely, the Commission drew the Court’s attention to the decision Repatriation Commission v Green [2008] FCA 1614 (“Green”). In Green, the Court held that the existence of an injury or disease that is part of the hypothesised chain of causation between service and the veteran’s death (or presumably another claimed injury or disease) is to be determined on the balance of probabilities rather than merely pointed to by the material before the decision-maker. This is required whether or not there is a SoP for the particular injury or disease.

Her Honour noted that “the issue in the present case was not raised in Green” and that in Green, the Court’s attention did not appear to have been drawn to another Full Court decision, Collins v Administrative Appeals Tribunal [2007] FCAFC 111 (“Collins”).

In Collins, a similar hypothesis had been put forward that the late veterans’ post-traumatic stress disorder (“PTSD”) was war caused and that it had been the cause of hypertension. Hypertension led to the development of ischaemic heart disease, of which the veteran died. In Collins, the Tribunal determined that it was not reasonably satisfied that the veteran suffered from PTSD. On appeal, the Full Court unanimously held that the tribunal had fallen into an error of law. All that the Tribunal was required to do was to determine whether or not the material ‘pointed to’ or ‘raised’ the facts, rather than proved on the balance of probabilities, that the veteran suffered from PTSD, that it was related to his service, and that it contributed to the cause of the veteran’s ischaemic heart disease.

Following the decision in Collins, Justice Katzmann concluded that tribunal did not ask itself the correct questions and so fell into error. Her Honour considered that:

[40]…instead of forming an opinion as to whether the material did raise a reasonable hypothesis, the tribunal embarked on the task of weighing the evidence and deciding whether or not the veteran suffered from the particular anxiety disorder. As Emmett J put it in Collins (at [21]) that was not the task called for by the statutory provisions…

The Court’s Decision

The court decided that Mrs Onorato’s appeal should be allowed and the matter be remitted to the Tribunal.

All Practice Notes