BAWDEN and REPATRIATION COMMISSION - [2010] AATA 774

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 774
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5535

VETERANS' APPEALS DIVISION )

Re CORAL BAWDEN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member
Date11 October 2010
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

..............[Sgd]................................
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – operational service with Australian Army - Death from metastatic carcinoma prostate – Application of Statements of Principles - Increasing animal fat consumption - Reasonable hypothesis of relevant relationship to eligible war service not raised – Death not war-caused – Decision under review affirmed
Veterans’ Entitlement Act 1986 ss 5E, 6A, 7, 8, 11, 14, 119, 120, 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408
Re Gill v Repatriation Commission [2005] AATA 1276707
Repatriation Commission v Bey (1997) 149 ALR 721
Jakab v Repatriation Commission [2007] FCA 898
REASONS FOR DECISION

11 October 2010 Mr R G Kenny, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member

BACKGROUND
1.      Alexander Bawden (“the veteran”) served in the Australian Army in World War II. He died on 24 December 2006 at the age of 82 years. On 29 March 2007, his widow and dependant, as those terms are defined in ss 5E and 11, respectively, of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), lodged a claim, under s 14 of the Act, for a pension. This was on the basis that the veteran’s death was war‑caused in accordance with s 8 of the Act. That claim was rejected by the Repatriation Commission (“the respondent”) on 14 August 2007 and then by the Veterans’ Review Board on 24 April 2009.
SERVICE
2.      The veteran’s army service was from 8 March 1943 until 20 November 1946 during which he was based for periods in New Guinea. It is common ground that all of his service constitutes eligible war service in the form of operational service in accordance with sections 7 and 6A, respectively, of the Act.
ISSUES AND LEGISLATION
3. In order for the death of a veteran to be accepted as being war-caused, one of the requirements in s 8 of the Act must be met. Relevant in this matter is s 8(1)(b) of the Act which reads:
(1)Subject to this section … for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)       …
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …

4. Where, as in this case, operational service was rendered, the standard of proof applicable to the determination is set out in s 120(1) of the Act which reads:
120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a…

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 BAWDEN and REPATRIATION COMMISSION

Details

AGLC: BAWDEN and REPATRIATION COMMISSION [2010] AATA 774
Case: [2010] AATA 774
Decision Date: 11 October 2010

CaseChat Overview and Summary

The case before the Administrative Appeals Tribunal (AAT) involved an application for a determination under the Veterans’ Entitlements Act 1986 by Mr BAWDEN against the Repatriation Commission. The applicant sought a declaration that his death from metastatic carcinoma of the prostate was attributable to his operational service with the Australian Army. The Tribunal was required to determine whether the death was caused by the operational service and if it was covered under the relevant Statements of Principles concerning prostate cancer.

The legal issues before the Tribunal were whether the applicant's death from metastatic carcinoma of the prostate was reasonably attributable to his service, and if the relevant Statements of Principles could be applied to his case. The Tribunal needed to consider whether there was a reasonable hypothesis that the increasing animal fat consumption during his service contributed to his condition, as required by the applicable law. The Tribunal examined the evidence and submissions to determine if the applicant's service could be considered the cause of his death.

In its decision, the Tribunal noted that the applicant did not raise a reasonable hypothesis that his increasing animal fat consumption during his service was related to his prostate cancer. The Tribunal found that there was insufficient evidence to support a causal link between the service and the disease. The Tribunal held that the applicant’s death was not war-caused and affirmed the decision of the Repatriation Commission that the death was not attributable to his service.

The Tribunal concluded by affirming the decision under review, finding that the applicant’s death from metastatic carcinoma of the prostate was not caused by his operational service with the Australian Army.

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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