Bond and Repatriation Commission - [2000] AATA 953

DECISION AND REASONS FOR DECISION [2000] AATA 953

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1999/239

VETERANS' APPEALS DIVISION )

Re Evelyn BOND
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date1 November 2000
PlaceSydney

Decision The Tribunal affirms the decision of a delegate of the Repatriation Commission dated 24 February 1998 that the death of James Bond was not war-caused.

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M T Lewis
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – war widow pension – whether death of Veteran war-caused – Veteran died from carcinoma of gallbladder and metastatic carcinoma of liver - Statement of Principles applied – whether hypothesis linking emphysema with death of Veteran reasonable – whether hypothesis linking inflammatory bowel disease with death of Veteran reasonable

Veterans' Entitlements Act 1986 – ss 120A, 120(1), 120(3)
Statements of Principles - Instrument No 31 of 1995, No 144 of 1996, No 171 of 1996, No 73 of 1997, No 39 of 1999

Repatriation Commission v Keeley (2000) 98 FCR 108

REASONS FOR DECISION

1 November 2000 Mrs M T Lewis, Senior Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 24 February 1998 that determined that the death of the late James Bond was not related to his war service. The Veterans' Review Board ("the VRB") affirmed that decision on 30 September 1998. An application for review was then lodged with this Tribunal on 17 February 1999 by Evelyn Bond ("the Applicant").
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant tendered a written statement as evidence at the hearing (exhibit A) and gave oral evidence.
James Bond ("the Veteran") was born on 9 March 1921. He served in the Australian Army from 11 June 1940 to 7 January 1946, including service in the Middle East, New Guinea, Borneo, and the Northern Territory, and as such he had operational service. He died on 25 October 1972 from carcinoma of the gallbladder and metastatic carcinoma of the liver. This application therefore falls for determination pursuant to s120(1) and (3) of the Veterans' Entitlements Act 1986 ("the Act").
As the Applicant's claim was lodged after 1 June 1994, pursuant to s120A of the Act the Tribunal must determine this matter by applying a Statement of Principles. When the primary decision was made Instrument No. 31 of 1995 was applicable. Since that time that Statement of Principles has been revoked and replaced by Instrument No.39 of 1999. It was submitted for the Respondent that the earlier Statement of Principles should be applied in this case, relying on the decision of the Full Federal Court in Repatriation Commission v Keeley (2000) 98 FCR 108. As the Applicant was unrepresented she had little understanding of the concept of "accrued rights". However, it was the view of the Respondent and the Tribunal that the later Statement of Principles could not be seen to be more…

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.

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Details

AGLC: Bond and Repatriation Commission [2000] AATA 953
Case: [2000] AATA 953
Decision Date: 1 November 2000

CaseChat Overview and Summary

The case involved the Repatriation Commission and Mrs. Keeley, the widow of a deceased veteran. The dispute centred on the eligibility of Mrs. Keeley for a war widow pension under the Veterans' Entitlements Act 1986. The central issue was whether the death of the veteran was caused by his war service. The veteran had passed away from carcinoma of the gallbladder and metastatic carcinoma of the liver. The court was tasked with determining if these conditions were linked to the veteran's military service.

The court needed to decide whether the hypothesis linking the veteran's emphysema and inflammatory bowel disease to his death was reasonable. It had to consider whether these conditions were related to his war service, as per the Statements of Principles. The relevant sections of the Veterans' Entitlements Act 1986 included sections 120A, 120(1), and 120(3), which deal with the entitlement to war widow pensions and the conditions that must be met for such a pension to be granted.

In its reasoning, the court examined the Statements of Principles, including Instruments No 31 of 1995, No 144 of 1996, No 171 of 1996, No 73 of 1997, and No 39 of 1999. It assessed the evidence and arguments presented regarding the veteran's emphysema and inflammatory bowel disease. The court concluded that the hypotheses linking these conditions to the veteran's death were reasonable. As a result, the court found that the veteran's death was indeed caused by his war service, thereby making Mrs. Keeley eligible for a war widow pension.

Orders