Beith and Repatriation Commission - [2005] AATA 948

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 948
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1434

VETERANS APPEALS DIVISION )

Re BETTY BEITH

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly and Dr John Campbell, Member
Date29 September 2005
PlaceSydney

Decision
The reviewable decision made on 22 April 2003 is set aside and substituted for that decision is the decision that Mr Beith’s death was war-caused.

[sgd] Senior Member, Mrs Josephine Kelly
Presiding Member

CATCHWORDS
VETERANS’ APPEALS – operational service - kind of death was cardiomyopathy - an hypothesis identified that drinking habit connected with war service and contributed to death – cardiomyopathy Statement of Principles satisfied -– facts not disproved beyond a reasonable doubt – death war caused - the veteran’s widow entitled to pension - decision set aside
LEGISLATION
Veterans’ Entitlements Act 1986 ss 6A(1), 8, 120(1), 120(3), 120A, 120A(3), 175(1) and 196B
Administrative Appeals Tribunal Act 1975 section 37
CASELAW
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Tuite (1993) 29 ALD 609
Repatriation Commission v Hancock [2003] FCA 711 (16 July 2003)
Repatriation Commission v Deledio (1998) 83 FCR 82
Byrnes v Repatriation Commission (1993) 177 CLR 564
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Bull v Repatriation Commission [2001] FCA 1832
McLean v Repatriation Comission [2001] FCA 1505,
REASONS FOR DECISION

29 September 2005 Senior Member, Mrs Josephine Kelly and Dr John Campbell, Member

Background
1. Mr Robert Beith (“Mr Beith”) served full-time in the Royal Australian Air Force (“RAAF”) from 2 January 1945 to 29 January 1946. This included service outside Australia from 9 August to 18 October 1945 (T3 p11 and T4 p30). All his RAAF service was “operational service” pursuant to s 6A(1) the Veterans’ Entitlements Act 1986 (the “Act”).
2. Mr Beith died on 8 February 2003. The death certificate records the causes of death as being (T4 p29):
(a) Cardiac failure, sudden
(b) Cardiomyopathy, 8 years

3. Mrs Betty Beith (“Mrs Beith”) married Mr Beith on 11 March 1951 (T4 p35). She has applied to the Tribunal pursuant to s 175(1) of the Act, for a review of the decision made by the Repatriation Commission (“the Commission”) on 22 April 2003 to refuse her claim for pension in respect of the death of her husband.
4. It is agreed that the relevant Statement of Principles determined pursuant to s 196B(2) of the Act in respect of cardiomyopathy is Instrument No 19 of 1998, as amended by Instrument No 22 of 2002 which is found at T11 p 58. The factor relied on in Mrs Beith’s case is Factor 5(b):
5(b) for men, drinking at least 250kg of alcohol (contained within alcohol drinks) within any 10 year period before the clinical onset of secondary cardiomyopathy; .…

Some relevant definitions in the SoP are:
2(b) For the purposes of this Statement of Principles, “cardiomyopathy” means a non-inflammatory disorder or heart…

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 Beith and Repatriation Commission

Details

AGLC: Beith and Repatriation Commission [2005] AATA 948
Case: [2005] AATA 948
Decision Date: 29 September 2005

CaseChat Overview and Summary

The case of Beith and Repatriation Commission involved the applicant, the widow of the deceased veteran, Mr Beith, who sought a determination that the death of her husband was attributable to his war service. This led to her entitlement to a war death pension under the Veterans’ Entitlements Act 1986. The matter was heard by the Administrative Appeals Tribunal and subsequently appealed to the Federal Court of Australia.

The primary legal issue was whether Mr Beith's death, caused by cardiomyopathy, was sufficiently connected to his war service to be considered war-caused under the Act. The Court had to determine if the evidence supported the hypothesis that Mr Beith’s drinking habits, which developed during his service and contributed to his death, were connected to his operational service. The Court also considered whether the Statement of Principles concerning war-caused death was applicable and if the facts presented were not disproven beyond reasonable doubt.

The Court found that the evidence presented, which included expert opinions linking Mr Beith’s drinking habits to his war service and the resulting cardiomyopathy, met the requirements of the Act. The Court held that the hypothesis connecting Mr Beith’s drinking habits to his service was plausible and not disproven beyond reasonable doubt. Consequently, the Court concluded that Mr Beith’s death was war-caused, and the veteran’s widow was entitled to the war death pension.

The decision of the Tribunal was set aside, and the Court substituted its decision that Mr Beith’s death was war-caused. This determination entitles the widow to the war death pension under the relevant legislation.

Orders

Orders of the court

The reviewable decision made on 22 April 2003 is set aside and substituted for that decision is the decision that Mr Beith’s death was war-caused.

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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