2.2.8 MRCC not Bound by Technicalities

Section 334 [2] requires a delegate acting for the MRCC to not be bound by technicalities in considering, hearing or determining a claim or request and in making a decision. This means the delegate must take into account any difficulties that for any reason lie in the way of ascertaining any matter due to the effects of the passage of time or the absence of, or deficiency in, relevant official records.

The Commission Guideline provides the following additional guidance in respect of Stage 1:

In assessing material in Stage 1, s119 (1) [s334(1) of MRCA] should be taken into account fully – that is, allowance must be made for the difficulties in ascertaining relevant matters, eg. the passage of time, or the absence of or deficiencies in official records.  While s 119 (1)(h) cannot take the place of the material, it can permit a positive finding to be made without corroborative evidence.

For example:

• A veteran makes a statement about an occurrence on service in World War II. If that statement is credible, then s119 (1)(h) permits a finding to be made in favour of the claimant even though it is the only evidence of that event occurring.  This is because it may be unreasonable to expect the veteran or the Department to locate witnesses to the event who can corroborate the veteran's evidence given the lapse of time since it occurred.
• A veteran may make a statement concerning the receipt of medical treatment for an injury during a particular military action.  If that statement is credible, then s119 (1)(h) can permit a finding made in favour of the claimant, even though there is no record of that treatment in the veteran's service records.  This is because it is common knowledge that the exigencies of service were such that full records of all treatment were not always made.
• A widow may make a statement that her late husband told her certain things about circumstances of his service.  If that statement is credible, then s119 (1)(f) can permit a finding to be made in her favour even though it is merely hearsay evidence and there is no other evidence to corroborate her statement.  This is because under s119 (1)(f) the rules of evidence do not strictly apply.

However, it must be remembered that s119(1) does not remove the obligation upon decision-makers to ensure that there is compliance with the provisions of the legislation before the entitlements can be granted.