Veterans’ Support Act 2014, ss 10(b), 14 and 47(1) – Veterans Support Regulations 2014 – questions of law – appeal against the finding of a service-related condition – statutory interpretation – equal treatment of equal claims
The General Manager of Veterans’ Affairs New Zealand v The Estate of Lieutenant Colonel Tā Harawira Gardiner KNZM [2023] NZHC 1897 per McQueen J.
In this High Court case the General Manager of Veterans’ Affairs New Zealand (GMVA) appealed a decision by the Veterans’ Entitlements Appeal Board, which ruled glioblastoma should be treated as a service-related condition under the Veterans’ Support Act 2014, and thus is entitled to a disablement pension.
The claim to treat glioblastoma, a fast-growing and aggressive brain tumour, as a service-related condition was initially brought by the late Lieutenant Colonel Tā Harawira Gardiner who had applied for a disablement pension under s 47(1) of the Act. The section states that a veteran who suffers disablement due to a service-related illness is entitled to a disablement pension.
Tā Harawira served in the New Zealand Army from 11 January 1963 to 12 July 1983. In 2021, he was diagnosed with glioblastoma, a condition previously experienced by veterans exposed to Agent Orange during the Vietnam War.
He was a veteran to which reg 13 of the Veterans Support Regulations 2014 applied, as he had qualifying operational service in Vietnam from June 1969 to May 1970. But, under the regulation, glioblastoma did not appear in the list of illnesses or conditions that veterans could claim as a service-related condition.
Ta Harawira’s disablement pension application was declined by Veterans’ Affairs New Zealand (VANZ). A review officer upheld the decision.
In an effort to help other veterans to claim for glioblastoma, Ta Harawira’s estate successfully appealed the review officer’s decision in the Veteran Entitlements Appeal Board. The Appeal Board majority of Christopher Griggs and Dr Chris Holdaway decided Tā Harawira’s claim must be treated as a service-related condition. It was this decision that GMVA appealed to the High Court.
GMVA’s appeal was effectively unopposed as Tā Harawira’s estate did not wish to defend a decision made on the basis of an argument it did not raise, in a claim that was intended to be representative of all veterans.
GMVA’s main ground of appeal was that the majority decision erred in law by not following the prescribed process for deciding claims under s 14 of the Act.
The general manager also argued the s 10(b) guiding interpretation principles were relied upon too heavily. Moreover, a claim under the previous War Pensions Act 1954 (known as the Kenyon claim), which had similar facts, should not have been used to justify the inclusion of Glioblastoma. In that case, Kenyon was a veteran who, like Tā Harawira, had served in Vietnam and was exposed to Agent Orange. The equivalent Appeal Board under the previous Act concluded there was reasonable evidence that Kenyon’s glioblastoma was probably or possibly attributable to his service, although the condition or illness was excluded from the presumptive condition list.
Legal Reasoning
McQueen J examined the legislative history, guiding principles and claim process under the Act. The court found that lists of presumptive conditions or illnesses could help a claimant, but did not preclude them from claiming for a condition or illness that was not listed.
McQueen J found the Appeal Board majority’s reasoning for reaching the same conclusion was, however, problematic.
The judge discussed the impact of the Kenyon claim and the principle of “equal treatment of equal claims”. McQueen J found it would be inappropriate if one could not regard the Kenyon claim as equal to Tā Harawira’s claim simply because the Kenyon claim arose under different legislation.
Applicable principles: guiding principles under the Act – principles derived from the Act’s legislative history – equal treatment of equal claims.
Held: McQueen J allowed the appeal and asked the Appeal Board to reconsider Tā Harawira’s application for a disablement pension and for her conclusions about the questions of law to be taken into account.
Vivian Mitchell is an LLB/BA graduate.
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