Allen and Repatriation Commission - [2009] AATA 418

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 418
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0171

VETERANS’ APPEALS DIVISION )

Re MAXINA ALLEN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member
Dr Saw Hooi Toh, Member
Date11 June 2009
PlaceSydney

Decision
The decision of the Veterans’ Review Board dated 8 December 2006 is set aside and substituted is the decision that the veteran’s death was war-caused. The earliest date of effect is 2 September 2005. The matter is remitted to the Commission for determination of Mrs Allen’s pension entitlements.

...................[Sgd]....................
Ms Robin Hunt
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – war widow’s pension – kind of death – reasonable satisfaction – statement of principles – malignant neoplasm of the anal canal – reasonable hypothesis not disproved – reviewable decision set aside – war widow’s pension payable.
Veterans’ Entitlements Act 1986 (Cth) ss 8(1), 13(1), 120(1), 120(3), 120A, 196B(2)
Collins v Repatriation Commission [2008] FCA 1982
Doolette v Repatriation Commission (1990) 21 ALD 489
Hayes v Repatriation Commission [2005] FMCA 125
Re Martyn and Repatriation Commission [2006] AATA 895
Repatriation Commission v Codd (2007) 95 ALD 619
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Hancock (2003) 37 AAR 383
Repatriation Commission v Hill [2009] FCA 270
Repatriation Commission v Law (1980) 47 FLR 57
REASONS FOR DECISION

11 June 2009 Ms Robin Hunt, Senior Member
Dr Saw Hooi Toh, Member

introduction
1. Mrs Maxina Allen seeks review of a decision that her late husband’s death was not war-caused within the meaning of section 8 of the Veterans’ Entitlements Act 1986 (‘the Act’). If she is successful and we are satisfied the death was war-caused, she will be entitled to receive a war widow’s pension.
2. Mrs Allen claims her late husband, Peter Allen, who was a veteran and saw operational war service with the Australian Army in the 1940s, developed a heavy smoking habit as a result of his war service and that this caused malignant neoplasm of the anal canal. She further claims that this disease caused or materially contributed to her late husband’s death.
3. Death will be taken as war-caused, pursuant to subparagraph 8(1)(b) of the Act, if:
The death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …

issues
4. We must decide the ‘kind of death’ suffered by Mrs Allen’s late husband and whether this was war-caused.
the position of the parties
5. Mrs Allen contends that her late husband’s malignant neoplasm of the anal canal caused or materially contributed to his death and that his death was war-caused because he contracted the malignancy as a result of his smoking habit acquired through war service. The respondent denies the death was war-caused and contends that the kind of death suffered by the veteran was death from metastasised prostate cancer and progressive severe dementia leading to respiratory tract…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Allen and Repatriation Commission

Details

AGLC: Allen and Repatriation Commission [2009] AATA 418
Case: [2009] AATA 418
Decision Date: 11 June 2009

CaseChat Overview and Summary

The case of Allen and Repatriation Commission involved Mrs Allen, who sought a war widow’s pension following the death of her husband, Mr Allen. The primary dispute centred on whether Mr Allen's death, which was due to a malignant neoplasm of the anal canal, was attributable to his war service. The matter was heard by the Federal Court of Australia.

The legal issues before the court involved the interpretation of the Veterans' Entitlements Act 1986, particularly in determining whether the Commission's decision to deny Mrs Allen a war widow’s pension was legally sound. The court had to assess if the Commission appropriately considered the principles regarding the link between Mr Allen's death and his war service, and if the decision was reviewable under the Act.

The Federal Court found that the Veterans’ Review Board had erred in its decision-making process. The court held that the Commission did not adequately consider the reasonable hypothesis that Mr Allen’s malignant neoplasm was linked to his war service. This hypothesis had not been disproven, and therefore the Commission's decision was set aside. The court concluded that the veteran's death was reasonably attributable to his war service, leading to the conclusion that Mrs Allen was entitled to a war widow’s pension.

The decision of the Veterans’ Review Board dated 8 December 2006 was set aside, and the matter was remitted to the Commission for a re-determination of Mrs Allen’s pension entitlements, with the earliest date of effect set at 2 September 2005.

Orders

Orders of the court

The decision of the Veterans’ Review Board dated 8 December 2006 is set aside and substituted is the decision that the veteran’s death was war-caused. The earliest date of effect is 2 September 2005. The matter is remitted to the Commission for determination of Mrs Allen’s pension entitlements.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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