Aust and Repatriation Commission

[2004] AATA 1188

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1188

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2003/363

VETERANS' APPEALS  DIVISION		)
Re		CHARLES AUST

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date10 November 2004

PlaceCanberra

Decision The decision under review is affirmed.

..............................................

Mr S. Webb, Member

CATCHWORDS

VETERANS' ENTITLEMENTS - pension - operational service - issue of war-causation -  malignant neoplasm of the prostate - hypothesis of war causation concerning increase in consumption of animal fat - statement of principles - hypothesis is pointed to by some of the material and contraindicated by other material - consideration of all of the material before the Tribunal – reasonableness of assumptions – hypothesis not raised on all of the material – hypothesis not reasonable - no ground for war causation beyond reasonable doubt - decision affirmed

Veterans’ Entitlements Act 1986 ss 9, 13, 119, 120, 120A, 196B

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Owens (1996) S147/1995

Bull v Repatriation Commission (2001) 188 ALR 756

Elliott v Repatriation Commission (2002) 73 ALD 377

Repatriation Commission v Hill (2002) 69 ALD 581

Hardman v Repatriation Commission [2004] FCA 1174 (14 September 2004)

Brennan v Repatriation Commission [2004] FCA 1431 (3 November 2004)

Repatriation Commission v Keeley [2000] FCA 532 (28 April 2000)

REASONS FOR DECISION

November 2004 Mr S. Webb, Member         

1.      By this application Charles Aust seeks relief from a determination of the Repatriation Commission (“the Commission”) denying his claim for an increase in his Disability Pension on the basis that his malignant neoplasm of the prostate was not war-caused. 

2.      The matter came on for hearing in Canberra on 27 to 29 October 2004. Mr Aust was represented by Mr C. Colbourne, counsel. The Commission was represented by Ms J. Macdonnell, counsel. Mr Aust gave oral evidence at the hearing, as did Ms C. Richards, Mr J. Macdonald and Dr R. English. Before me were documents prepared pursuant to s.37 of the Administrative Appeals Tribunal Act 1975  and other materials that were tendered and labelled at the hearing.

factual context

3.      Mr Aust was born on 13 December 1922.  As a child in the 1930s he lived with his family in Merrylands, then “on the outskirts of Sydney”.  His family included his parents, one elder sister and two younger brothers.  His mother died in or about 1936.

4.      Mr Aust commenced his working life at the age of 13, as a messenger and subsequently a storeman/packer employed by David Jones in Sydney.  He enlisted in the Royal Australian Navy (“the Navy”) on 2 June 1941 and was mobilised for war service on 30 June 1941.  He has operational service from 2 June 1941 to 26 July 1946.  During the period of his service he progressed from Stoker II to Leading Stoker.  The details of his service are in Exhibit R1 and it is not necessary to repeat them here.

5.      After demobilisation Mr Aust lived in a…