Borrett and Repatriation Commission - [2000] AATA 481

DECISION AND REASONS FOR DECISION [2000] AATA 481

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/747

VETERANS' APPEALS DIVISION       )
           Re      MARGUERITE BORRETT
  Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member M D Allen Dr P D Lynch, Member

Date16 June 2000
PlaceSydney

Decision      The decision under review is affirmed.
  (Sgd)             M D ALLEN
  ..............................................
  Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Widow's claim. Hypothesis that war-caused drinking habit led to cancer of the rectum. Statement of Principles re cancer of the rectum met but no facts to support sub-hypothesis that drinking habit war-caused.

Veterans' Entitlements Act - s6A, subss120(1), (3) and (6), s120A

Repatriation Commission v Bey 79 FCR 364
Repatriation Commission v Deledio 83 FCR 82
Repatriation Commission v Keeley [2000] FCA 532

REASONS FOR DECISION

16 June 2000 Senior Member M D Allen Dr P D Lynch, Member

By application made 20 May 1999 the Applicant sought review of a determination made by a delegate of the Respondent on 24 February 1998 and affirmed by a Veterans' Review Board on 21 April 1999 that the death of her late husband, John Borrett, was not war-caused.
The late Veteran died on 6 February 1972 and a Post Mortem Report gave as the cause of death, carcinoma of the rectum with metastasis.
At the hearing of this matter on 30 May 2000 the following documents were taken in as exhibits and marked as follows, namely:
T1 – T24:     The documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1986
Exhibit A1:     Applicant's Statement of Facts and Contentions dated 8 November 1999
Exhibit A2:     Statement by the Applicant dated 26 August 1999
Exhibit A3:     Statement by Thomas Graham dated 16 May 2000
Exhibit A4:     Report of Dr Robert Gertler dated 19 October 1999
Exhibit R1:     Respondent's Amended Statement of Facts and Contentions dated 29 May 2000
Exhibit R2:     Report of Brendan O'Keefe, Historian, dated 12 April 2000
Exhibit R3:     Report of Associate Professor Richard Mattick dated 10 May 2000

As deceased Veteran had operational service as that term is defined in section 6A of the Veterans' Entitlements Act 1986 (the VEA), the standard of proof applicable in this matter is as set out in subss120(1) and (3) of the VEA, namely:
"120(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 veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease of that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person,…

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 Borrett and Repatriation Commission

Details

AGLC: Borrett and Repatriation Commission [2000] AATA 481
Case: [2000] AATA 481
Decision Date: 16 June 2000

CaseChat Overview and Summary

The case between Borrett and the Repatriation Commission involved a widow's claim for veterans' entitlements. The central dispute was whether the veteran's drinking habit, which was argued to be caused by the war, subsequently led to cancer of the rectum. The matter was heard in the Federal Court of Australia. The claimant sought to rely on a Statement of Principles concerning cancer of the rectum; however, the court needed to determine whether there were sufficient facts to support the hypothesis that the drinking habit was war-caused.

The legal issues before the court included whether the veteran's drinking habit could be considered a war-caused condition under the Veterans' Entitlements Act, and if this habit directly led to the cancer of the rectum. The court had to examine the relevant provisions of the Act, specifically sections 120(1), (3), and (6), and 120A, to assess the claimant's entitlement. The court also needed to consider the applicability of previous cases such as Repatriation Commission v Bey, Repatriation Commission v Deledio, and Repatriation Commission v Keeley, which provided precedents on the interpretation of similar claims.

The court found that while the Statement of Principles regarding cancer of the rectum was met, there was insufficient evidence to substantiate the hypothesis that the drinking habit was war-caused. This was a critical finding, as the causal link between the war-related habit and the cancer was necessary to support the claim. The court's reasoning hinged on the lack of factual support for the sub-hypothesis, despite the meeting of the broader criteria. Consequently, the widow's claim for veterans' entitlements was dismissed.

The final orders of the court were that the widow's claim was rejected, and the Repatriation Commission's decision was upheld. The court's ruling emphasised the necessity of a direct causal link between the war-related condition and the subsequent illness, and the importance of factual evidence to support such a claim.

Orders