Baker and Repatriation Commission - [2005] AATA 733

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 733
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/539

VETERANS' APPEALS DIVISION )

Re IRENE FLORENCE BAKER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal REAR ADMIRAL A R HORTON AO, Member
Date29 July 2005
PlaceSydney

Decision The decision under review is affirmed.

[Sgd] REAR ADMIRAL A R HORTON AO, Member

CATCHWORDS
VETERANS ENTITLEMENTS – application for War Widow’s pension – army service of David Otway Baker (the veteran) – operational service - veteran deceased – certification of cause of death due to multiple injuries – statement of principles – claim that veteran’s heart condition contributed to death – evidence of atherosclerosis – relevance of smoking – death not related to service – decision affirmed
Veterans’ Entitlements Act 1986 – sections 6, 7, 8, 11, 13(1), 30, 86, 120(1), 120(3), 120(4), 120A, 196B (2)
Statements of Principles – Instrument No 54 of 1994 – death from cuts, stabs, abrasions or lacerations
Instrument No 43 of 1994 – death from external bruises and external contusions
Instrument No 53 of 2003 as amended by Instrument No 9 of
2004 – Ischaemic Heart Disease

Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
Roscoe v Repatriation Commission [2003] FCA 1568
REASONS FOR DECISION

29 July 2005 REAR ADMIRAL A R HORTON AO

1. This is an application to review a decision of a delegate of the Repatriation Commission (“the Respondent”) dated 16 July 2001, affirmed on review by the Veterans’ Review Board (“VRB”) on 5 April 2004, that the death of Mr David Otway Baker (“the veteran”) was not related to service. The Applicant in this matter is Mrs Irene Florence Baker, widow of the veteran.
2. At a hearing before me on 10 June 2005, Mrs Baker was self represented. Mr Adam Halonkin, advocate, represented the Respondent. I took into evidence the documents provided by the Respondent pursuant to section 37 of the AdministrativeAppeals Tribunal Act 1975 (“the T documents”); documents titled DVA “H” File of 17 pages (Exhibit R1); NSW State Coroner’s Court Files (Exhibit R2); a report by Professor Michael O’Rourke, dated 18 August 2004 (Exhibit R3); the Respondent’s Statement of Facts and Contentions dated 30 January 2005 (Exhibit R4) and a letter from Dr J B Whaite dated 9 July 2004 (Exhibit R5). Mrs Baker gave oral evidence and was cross-examined by the Respondent. It was intended that Professor Michael O’Rourke give telephone evidence, but as he was unavailable, the hearing was adjourned, and resumed on 7 July 2005 for him to give oral evidence.
BACKGROUND
3. Mr Baker was born in Sydney on 31 July 1923. He served in the Citizen Military Forces, and later the Australian Imperial Force from 5 January 1942 until 14 January 1946. Much of that service was in New Guinea, initially with the 55/53 Battalion and then in supporting units. All of his service was operational service pursuant to section 6A of the Veterans’ Entitlements…

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 Baker and Repatriation Commission

Details

AGLC: Baker and Repatriation Commission [2005] AATA 733
Case: [2005] AATA 733
Decision Date: 29 July 2005

CaseChat Overview and Summary

The case of Baker and Repatriation Commission involved an application for a War Widow’s pension in respect of the death of David Otway Baker, a veteran who served in the army. The dispute centred on whether his death was related to his military service, specifically whether his heart condition contributed to his demise due to multiple injuries sustained during service. The case was heard in the Federal Court of Australia.

The court was tasked with determining whether the veteran's death, certified to be due to multiple injuries, was related to his military service. This required examining whether the veteran’s heart condition was a result of his service and contributed to his death, in light of evidence of atherosclerosis and the impact of smoking. The court had to interpret relevant sections of the Veterans' Entitlements Act 1986 and consider applicable statements of principles, such as those relating to ischaemic heart disease and deaths from external injuries.

The court reviewed the evidence and concluded that the veteran's death was not related to his service. It found that the cause of death, multiple injuries, did not arise from his military service and that the heart condition was not service-related. The court also considered the impact of the veteran’s smoking on his heart condition, which was not deemed to be connected to his service. The decision to affirm the Repatriation Commission’s determination was based on this finding.

The court’s final order was to affirm the decision under review, maintaining that the veteran’s death was not related to his service and therefore not eligible for a War Widow’s pension.

Orders

Orders of the court

The decision under review is affirmed.

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		IRENE FLORENCE BAKER