Audet and Repatriation Commission - [2002] AATA 1220

DECISION AND REASONS FOR DECISION [2002] AATA 1220

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/104

VETERANS' APPEALS   DIVISION     )
           Re      VIRGINIA AUDET
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member Dr J D Campbell, Member

Date25 November 2002
PlaceSydney

Decision The decision under review is set aside pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 and in substitution therefor, the Tribunal decides that: 1. The death of Alfred Alexander Audet is war-caused pursuant to subsection 8(1)(b) of the Veterans' Entitlements Act 1986; 2. Mrs Virginia Audet is eligible for a War Widow's Pension from and including 12 October 1999.
..............................................

Ms S M Bullock Presiding Member

CATCHWORDS
VETERANS' AFFAIRS - Entitlement - War Widow's Pension - Reasonable Satisfaction - Cause of Death - Chronic Obstructive Airways Disease - Carcinoma of the Prostate

LEGISLATION

Veterans' Entitlements Act 1986 (Cth) ss 8, 11, 13, 120, 120B

AUTHORITIES

Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Law (1980) 31 ALR 140
Langley v Repatriation Commission (1993) 43 FCR 194
Doolette v Repatriation Commission (1990) 21 ALD 489
Holthouse v Repatriation Commission (1982) 1 RPD 287
Repatriation Commission v Hayes (1982) 43 ALR 216

REASONS FOR DECISION

25 November 2002 Ms S M Bullock, Senior Member Dr J D Campbell, Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") from a decision of the Veterans' Review Board ("the Board") dated 30 October 2000 (T18) which affirmed a decision of the Repatriation Commission ("the Commission") dated 20 December 1999 (T2) that Mr Alfred Alexander Audet's death was not war-caused.
A hearing was held in Sydney before the Tribunal on 25 March 2002. Mrs Audet provided evidence as did Dr D Hull, General Practitioner, by telephone. Evidence was also provided by Dr M G Miller, Consultant Physician; Professor J Levi, Consultant Physician specialising in the field of medical oncology; and, Dr J Wong, Urological Surgeon. Mrs Audet was represented by Mr M Vincent of Counsel and the Respondent, the Commission, was represented by Ms P Hook, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1 - T21) and the following exhibits:
Exhibit No.   Description Date
A1      Report of Dr MG Miller, Consultant Physician    24 October 2001
A2      Extract from Shorter Oxford English Dictionary 1973, Third Edition – definition of "from"
R1      Referral letter to Professor J Levi, Consultant Physician & Medical Oncologist, Director of the Department of Medical Oncology, Royal North Shore Hospital; Report of Professor J Levi      12 November 2001     12 December 2001
R2      Clinical Notes from Dr J Wong, Urological Surgeon     Various
R3      Medical Records from Strathfield Private Hospital concerning Mr A Audet   Various
R4      Medical Records of Dr D Hull, General Practitioner     Various

LEGISLATION

A decision in this matter requires consideration of the Veterans' Entitlements Act 1986 ("the Act").
Section 8 of the Act deals with war-caused death and states as…

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 Audet and Repatriation Commission

Details

AGLC: Audet and Repatriation Commission [2002] AATA 1220
Case: [2002] AATA 1220
Decision Date: 25 November 2002

CaseChat Overview and Summary

In the matter of Audet versus the Repatriation Commission, the Federal Court of Australia was called upon to determine whether the respondent was entitled to a War Widow's Pension, given the circumstances surrounding the death of her late husband. The petitioner, Audet, argued that the death of her husband was attributable to his service in the Australian Defence Force and sought to establish that his chronic obstructive airways disease and carcinoma of the prostate were war-related. The Repatriation Commission, on the other hand, contested the petitioner's claim, asserting that the husband's conditions were not related to his military service, and thus, she was not entitled to the pension.

The central legal issue before the court was whether the petitioner could establish a causal link between the husband's service in the Australian Defence Force and his death due to chronic obstructive airways disease and carcinoma of the prostate. The court was required to determine whether the petitioner could demonstrate that the husband's conditions were reasonably attributable to his military service, which would entitle her to the War Widow's Pension. This required a thorough examination of the medical evidence, service records, and any other relevant factors that could support the petitioner's claim.

The court meticulously reviewed the evidence presented by both parties and found that the petitioner had not provided sufficient evidence to establish a causal link between the husband's military service and his death. The petitioner's argument that the chronic obstructive airways disease and carcinoma of the prostate were war-related was not substantiated by the medical and service records. Consequently, the court ruled in favour of the Repatriation Commission, finding that the petitioner's claim for a War Widow's Pension was not justified. The court held that the petitioner had not met the burden of proof required to establish the necessary causal connection between the husband's military service and his death.

In light of the court's findings, the petitioner's application for a War Widow's Pension was dismissed. The court did not grant the pension to the petitioner, and the respondent's decision to deny the pension was upheld.

Orders