Bell and Repatriation Commission - [2004] AATA 88

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 88
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/689

VETERANS’ APPEALS DIVISION )

Re CONSTANCE BELL

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member
Dr JD Campbell, Member
Date3 February 2004
PlaceSydney

Decision
The decision under review is set aside pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 and in substitution therefor, the Tribunal decides that:

(i) the death of Mr Noel Phillip Thomas Bell is war-caused pursuant to subsection 8 of the Veterans' Entitlement Act 1986;
(ii) Mrs Constance Bell is eligible for a War Widow's Pension from and including 6 May 2001.

...............................................
Ms SM Bullock Presiding Member

CATCHWORDS
VETERANS' AFFAIRS - Entitlement - War Widow's Pension - Reasonable Hypothesis -
Cause of Death
LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 8, 11, 13, 119, 120, 120A
AUTHORITIES
Mason v Repatriation Commission [2000] FCA 1409
Repatriation Commission v Hancock (2003) 37 AAR 383
Benjamin v Repatriation Commission (2001) 70 ALD 622
Byrnes v Repatriation Commission (1993) 177 CLR 564
Bushell v Repatriation Commission (1992) 175 CLR 408
McKenna v Repatriation Commission (1999) 86 FCR 144
East v Repatriation Commission (1987) 16 FCR 517
Bull v Repatriation Commission (2001) 66 ALD 271
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hughes (1990) 13 AAR 34
REASONS FOR DECISION

3 February 2004   Ms SM Bullock, Senior Member
  Dr JD Campbell, Member

1.      Mrs Bell's husband, Mr Noel Phillip Thomas Bell, sadly died on 23 December 1977. Mr Bell served in the Royal Australian Air Force ("the Air Force") from 8 April 1941 until 18 March 1946 and this is considered to be operational service. Mrs Bell applied for a War Widow's Pension. The Repatriation Commission, the Respondent, decided on 5 September 2001, that Mr Bell's death was not related to his service and accordingly that Mrs Bell was not qualified to receive a War Widow's Pension (T2). Mrs Bell made an application for review of that decision to the Veterans' Review Board ("the Board") and on 16 April 2002 (T16), the Board affirmed the Repatriation Commission's decision. Mrs Bell has now made an application for review to the Administrative Appeals Tribunal ("the Tribunal") of the Board's decision as it affirmed the Repatriation Commission's initial decision.
2. A Hearing was held before the Tribunal in Sydney on 5 August 2003. Mrs Bell provided oral evidence. She was represented by Mr A Hill of Counsel. The Respondent was represented by Mr J Marsh, Advocate with the Department of Veterans' Affairs. Concurrent evidence was provided by Associate Professor AJ Corbett, Neurologist and Professor JG McLeod, Neurologist. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T18). A number of exhibits were also taken into evidence which are listed in Schedule 1 attached to this decision.
background
3.      On 21 December 1977, Mr Bell fell from an unguarded stairwell where he…

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 Bell and Repatriation Commission

Details

AGLC: Bell and Repatriation Commission [2004] AATA 88
Case: [2004] AATA 88
Decision Date: 3 February 2004

CaseChat Overview and Summary

In the case of Bell and Repatriation Commission, the matter before the court involved a claim for a War Widow's Pension under the Veterans' Entitlement Act 1986, following the death of Mr Noel Phillip Thomas Bell. The primary issue was whether Mrs Constance Bell was entitled to the pension based on the hypothesis that her husband's death was war-caused. The case was heard in the Federal Court of Australia.

The legal issues before the court included whether there was a reasonable hypothesis that Mr Bell's death was caused by his war service and whether this would entitle his widow to a War Widow's Pension. The court had to determine if the evidence presented was sufficient to support such a hypothesis and whether the death was attributable to the war service.

The court found that there was a reasonable hypothesis that Mr Bell's death was caused by his war service, as evidenced by the medical history and the potential link between his service and the development of the disease that led to his death. The court concluded that the hypothesis was supported by the evidence and that the death was indeed war-caused. Consequently, the court set aside the previous decision of the Administrative Appeals Tribunal and ruled that Mrs Constance Bell was eligible for a War Widow's Pension from and including 6 May 2001.

Orders

Orders of the court

The decision under review is set aside pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 and in substitution therefor, the Tribunal decides that:

(i) the death of Mr Noel Phillip Thomas Bell is war-caused pursuant to subsection 8 of the Veterans' Entitlement Act 1986;

(ii) Mrs Constance Bell is eligible for a War Widow's Pension from and including 6 May 2001.

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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