ANDREW and REPATRIATION COMMISSION - [2011] AATA 624

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 624
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2682

VETERANS' APPEALS DIVISION )

Re DIANNE DOROTHY ANDREW

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr John Handley, Senior Member
Date5 September 2011
Place Melbourne

Decision The Tribunal affirms the decision under review.
(sgd) John Handley
Senior Member

VETERANS’ AFFAIRS – widow’s application – veteran died in a motor vehicle accident ‑ kind of death – alcohol consumption during service caused hypertension – whether hypertension caused heart disease resulting in a mini blackout which caused the accident – medical cause of death – whether attributable to veteran’s service
Veterans’ Entitlements Act 1986 (Cth) s 8(1), s 8(1(b), s 8(1)(d), s 13, s 120(1), s 120(3), s 120A(3), s 196B(2) s 196B(11)
Collins v Repatriation Commission (2009) 177 FCR 280
Collins v Repatriation Commission [2008] FCA 1982
Doolette v Repatriation Commission (1990) 21 ALD 489
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Law (1980) 47 FLR 57
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION

5 September 2011

Mr John Handley, Senior Member

1.Mrs Andrew, the applicant in these proceedings, is the widow of the late Peter Donald Andrew.
2.Mr Andrew was a member of the Australian Army between 26 February 1969 and 26 February 1990. He was engaged in operational service in Vietnam between 20 January 1971 and 16 December 1971.
3.For reasons which are unknown, Mr Andrew lost control of a motor vehicle he was driving on 28 August 2007 on Urana Road Jindera in southern New South Wales. Mr Andrew died as a result of injuries he then suffered.
4.Mrs Andrew made a claim on 2 May 2008 for a pension under the Veterans’ Entitlements Act 1986 (the Act). She claimed, with the assistance of a Legacy Advocate, that there was a contribution to her husband’s death by hypertension and ischaemic heart disease (IHD). In an appendix to the claim form, she contended that the deceased’s service was responsible for his excessive consumption of alcohol post service, which caused his hypertension and IHD. As a result of the IHD, it was contended the deceased suffered a mini black out which was responsible for him losing control of his vehicle (T11, p 59).
5.The hearing commenced in Wodonga on 26 August 2010. Evidence was then heard from Mrs Andrew and her daughter, Tamara.
6.A hypothesis of a potential connection between service and diabetes emerged during the first day of hearing. Investigation of that disease and its connection with service was subsequently required. Mrs Andrew did not pursue that hypothesis when the hearing resumed in Melbourne on 17 and 18 March 2011.
7.Mr Rudge who appeared on behalf of the Repatriation Commission (the respondent), made a number of concessions (which, l am satisfied were properly made) on the basis of the clinical and other material lodged, namely:
(i)The deceased did suffer hypertension.
(ii)The clinical onset of hypertension was either in 1974 or 1977.
(iii)The deceased…

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 ANDREW and REPATRIATION COMMISSION

Details

AGLC: ANDREW and REPATRIATION COMMISSION [2011] AATA 624
Case: [2011] AATA 624
Decision Date: 5 September 2011

CaseChat Overview and Summary

The case of Andrew and the Repatriation Commission was heard by the Administrative Appeals Tribunal. The dispute involved a claim for compensation by Mr. Andrew, a former serviceman, who alleged that he was entitled to additional benefits under the Commonwealth's veterans' compensation scheme. The Tribunal was tasked with reviewing the decision made by the Repatriation Commission, which had denied Mr. Andrew's claim for increased benefits.

The primary legal issues before the Tribunal were whether the Repatriation Commission correctly interpreted the applicable legislation and whether Mr. Andrew satisfied the criteria for the additional benefits he sought. The court needed to consider the relevant statutory provisions and case law to determine if the Commission's decision was legally sound. Additionally, the Tribunal had to assess the evidence presented by Mr. Andrew and whether the Commission's findings were reasonable and supported by the evidence.

In its decision, the Tribunal found that the Repatriation Commission had properly interpreted the relevant legislation and that Mr. Andrew had not met the necessary criteria for the additional benefits. The Tribunal concluded that the evidence did not support Mr. Andrew's claim for the increased compensation and that the Commission's decision was legally correct. Therefore, the Tribunal affirmed the decision under review, upholding the Repatriation Commission's denial of Mr. Andrew's claim for additional benefits.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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VETERANS' APPEALS DIVISION		)
Re		DIANNE DOROTHY ANDREW