Blake and Repatriation Commission - [2001] AATA 77

DECISION AND REASONS FOR DECISION [2001] AATA 77

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/268

VETERANS' APPEALS DIVISION )

Re: naida agnes blake
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member M D Allen

Date15 January 2001
PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL )         No   N2000/268
  )
VETERANS' APPEALS DIVISION                )

Re: NAIDA AGNES BLAKE
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member M D Allen

Date 15 January 2001

Place Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.

(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS

VETERANS' ENTITLEMENTS - Claim by widow of deceased Veteran. Did deceased have an habituation to alcohol caused by or contributed to by service? Hypothesis not raised on evidence before Tribunal.
Veterans' Entitlements Act 1986 - s6A, subss120(1), (3), and (6); s120A

Repatriation Commission v Keeley [2000] FCA 532
Repatriation Commission v Deledio 83 FCR 82
Repatriation Commission v Bey 79 FCR 364
Connors v Repatriation Commission [2000] FCA 783
Caswell v Powell Duffryn Associated Collieries, Limited [1940] Appeal Cases 152
Treloar v Australian Telecommunications Commission 26 FCR 316

REASONS FOR DECISION

Senior Member M D Allen

At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant through his Solicitors and pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen

Signed: Kwai-Ling Wong
..................................................................................……………………………….
Associate

Date of Hearing  15 January 2001
Date of Decision  15 January 2001
Solicitor for Applicant                  Mr R Sherlock, Legal Aid Commission
Advocate for Respondent          Mr P Godwin, Department of Veterans' Affairs
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2000/268
By Mr M.D. ALLEN, Senior Member
BLAKE and REPATRIATION COMMISSION
SYDNEY, 15 JANUARY 2001
MR ALLEN:   In this matter, pursuant to an application for review which was made pursuant to an extension of time on 21 February 2000, the applicant seeks review of a decision by a delegate of the respondent made 22 May 1999 and affirmed by the Veterans' Review Board that the death of her late husband, Walter Blake was not attributable to his service.
The deceased veteran served in the Australian Army during WWII and served outside…

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 Blake and Repatriation Commission

Details

AGLC: Blake and Repatriation Commission [2001] AATA 77
Case: [2001] AATA 77
Decision Date: 15 January 2001

CaseChat Overview and Summary

In the case of Blake and Repatriation Commission, the widow of a deceased veteran sought to establish whether her late husband's alcoholism was attributable to his military service. This claim was heard and determined by the Federal Court of Australia. The widow argued that her husband's alcohol dependency was either caused by or contributed to by his service, which would entitle her to certain veterans' benefits under the Veterans' Entitlements Act 1986. The Repatriation Commission contested this claim, asserting that the veteran's alcoholism was not service-related.

The primary legal issue before the court was whether the hypothesis of a causal link between the veteran's service and his alcohol dependency was adequately raised and supported by the evidence presented. The court had to determine whether the onus of proof was discharged by the widow to establish that the service had caused or contributed to the veteran's habituation to alcohol. This involved an examination of the statutory provisions under the Veterans' Entitlements Act 1986, specifically sections 6A, 120(1), (3), and (6), and 120A, as well as relevant case law such as Repatriation Commission v Keeley, Repatriation Commission v Deledio, Repatriation Commission v Bey, Connors v Repatriation Commission, Caswell v Powell Duffryn Associated Collieries, Limited, and Treloar v Australian Telecommunications Commission.

The court concluded that the hypothesis concerning the causation of the veteran's alcoholism by his service was not properly raised during the proceedings before the Tribunal. The evidence provided did not sufficiently support the hypothesis, and therefore, the onus of proof was not met. The court held that without a properly raised and substantiated hypothesis, the widow could not establish that the veteran's alcoholism was attributable to his service. Consequently, the claim for veterans' benefits was dismissed. The court's decision was grounded in the requirement that the hypothesis be clearly articulated and supported by evidence, a standard that was not met in this case.

Orders