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Barnes and Repatriation Commission

Barnes and Repatriation Commission

Case [2001] AATA 753 31 August 2001

Veterans' Benefits

Pension Claims

Service-Related Conditions

Veterans' Affairs

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DECISION AND REASONS FOR DECISION [2001] AATA 753

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/897

VETERANS' APPEALS DIVISION          )
           Re      Dulcie May Barnes
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

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

Date31 August 2001
PlaceSydney

Decision The decision under review is set aside pursuant to section 43 of the Administration Appeals Tribunal Act 1975 and in substitution therefor the Tribunal decides that Mrs Barnes is qualified to receive a War Widow's Pension from and including 30 May 1995.

…………………………
Ms S M Bullock
Presiding Member

CATCHWORDS
VETERANS' AFFAIRS – War Widow's Pension – Operational Service – Malignant Neoplasm of the Prostate – Statement of Principles – Animal Fat Consumption during and after Service.

LEGISLATION

Veterans' Entitlements Act 1986 (Cth) ss 8, 9, 11, 13, 14, 31, 119, 120, 120A

Statement of Principles, Instrument Number 95 of 1995
Statement of Principles, Instrument Number 191 at 1996
Statement of Principles, Instrument Number 84 of 1999

AUTHORITIES

Repatriation Commission v Keeley (2000) 98 FCR 108
Re Keenan and Repatriation Commission [2000] AATA 707
Re Towle and Repatriation Commission [2000] AATA 706
Re Ryan and Repatriation Commission [2000] AATA 849
Re Reading and Repatriation Commission [2000] AATA 841
Arnott v Repatriation Commission (2001) 106 FCR 83
Williams v Repatriation Commission [2001] FCA 601
Gorton and Repatriation Commission [2000] FCA 286
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Cook v Repatriation Commission (2000) 106 FCR 448
Thompson v Repatriation Commission (2000) 59 ALD 441
Re Collingwood and Repatriation Commission [2000] AATA 710
Re Olsen and Repatriation Commission (2000) 62 ALD 208
Re Brown and Repatriation Commission [2000] AATA 1118
Re Zoarder and Secretary Department of Social Security (1998) 26 AAR 342
Re Paint v Repatriation Commission [2000] AATA 709
Re Grace and Repatriation Commission [2000] AATA 711
Repatriation Commission v Deledio (1998) 83 FCR 82
Re Fitzsimmons and Repatriation Commission [2001] AATA 477
Dixon v Repatriation Commission (1999) 59 ALD 315; (1999) 29 AAR 235
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

REASONS FOR DECISION

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

31 August 2001

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mrs Dulcie Barnes of a decision made by the Repatriation Commission ("the Commission") on 12 August 1995 (T2) which decided that the death of Mr Cyril Barnes was not related to service. The Commission's decision was affirmed by the Veterans' Review Board ("the Board") on 27 April 1998 (T18).
A hearing was held before the Tribunal in Sydney on 1 March 2001 and resumed on 12 June 2001. Mrs Barnes was represented by Ms J Buchanan of the Veterans' Advocacy Service of the Legal Aid Commission of New South Wales, and the Respondent, the Commission, was represented by Mr S Modder, Departmental Advocate. Mrs Barnes provided oral evidence at the hearing as did Dr D Volker, Nutritionist and Lipid…

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 Barnes and Repatriation Commission

Details

AGLC: Barnes and Repatriation Commission [2001] AATA 753
Case: [2001] AATA 753
Decision Date: 31 August 2001

CaseChat Overview and Summary

Barnes and the Repatriation Commission were the parties involved in this case, which was heard in the Federal Court of Australia. The dispute centred around the eligibility of Mrs Barnes, the applicant, for a War Widow's Pension based on her late husband's service and the subsequent development of a malignant neoplasm of the prostate. The central issue was whether the consumption of animal fat during and after the husband's service could be linked to his illness and if that connection warranted the pension's approval.

The court was tasked with determining whether the malignant neoplasm of the prostate developed by the late husband could be considered an "accepted cause" of his death, as stipulated in the relevant legislation. This involved examining the relationship between the husband's consumption of animal fat during and after his service and the development of the neoplasm. The court also had to consider the Statement of Principles issued by the Commission, which outlined the circumstances under which a connection between service and a particular illness could be recognised.

In reaching its decision, the court emphasised the importance of establishing a causal link between the husband's service and the development of the malignant neoplasm. The court noted that while the consumption of animal fat was a factor during and after service, there was insufficient evidence to establish a direct causal relationship with the neoplasm. The court also highlighted the need for the Statement of Principles to be interpreted in a manner that aligns with the legislative intent, ensuring that the pension is awarded only in cases where a clear and direct connection exists. Based on these findings, the court ruled against the applicant, concluding that the conditions for the War Widow's Pension were not met in this instance.

Orders