Bridle and Repatriation Commission - [2008] AATA 31

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 31
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1533

VETERANS' APPEALS DIVISION )

Re DOROTHY BRIDLE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member
Date14 January 2008
PlaceSydney

Decision The decision under review is set aside with effect from 18 December 2003.

..................[sgd]............................
Ms N Isenberg
Senior Member

ADMINISTRATIVE APPEALS TRIBUNAL
No: N 2005/1533

General Administrative Division
Re: Dorothy Bridle
Applicant

And: Repatriation Commission
Respondent

DIRECTION [2008] AATA 31
TRIBUNAL:             Ms N Isenberg, Senior Member
DATE:                      6 March 2008
PLACE:                   Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by deleting “P. Jones” as the solicitor for the Applicant and substituting the name “C. Malcolm”.
........................[sgd]........................................
Ms N Isenberg
Senior Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – widow’s pension – operational service – claim that the veteran’s death from malignant neoplasm of the prostate was war-caused – increase in animal fat consumption due to deprivation during service – decision under review is set aside with effect from 18 December 2003
Veterans’ Entitlements Act 1986 – sections 9, 13, 120, 120A, 196B
Statement of Principles concerning malignant neoplasm of the prostate – Instrument No. 28 of 2005
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
Repatriation Commission v Bey (1997) 79 FCR 364
Youngnickel v Repatriation Commission [2004] FCA 1691
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Law (1980) 31 ALR 140
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
REASONS FOR DECISION

14 January 2008 Ms N Isenberg, Senior Member

1.      The decision under review is the decision of the Repatriation Commission dated 29 March 2004, as affirmed by the Veterans’ Review Board (“the VRB”) on 11 November 2005, that refused the claim that the death of Sidney Bridle (“the veteran”), the Applicant‘s husband, was service-related.
ISSUE BEFORE THE TRIBUNAL
2.      The issue to be considered by the Administrative Appeals Tribunal (“the Tribunal”) is whether the veteran’s “kind of death” was malignant neoplasm of the prostate, and whether that condition was war-caused.
BACKGROUND
3.      Mr Bridle served in the Australian Army between 18 February 1942 and 26 March 1946. He served mostly in PNG and Bougainville.
4.      The whole of his service was “operational service” as defined in the Veterans’ Entitlement Act 1986 (“the VE Act”).
LEGISLATIVE BACKGROUND
5.      Section 8 of the VE Act sets out when an injury or disease is taken to be war-caused: if the veteran’s death resulted from an occurrence that happened while the veteran was rendering operational service or arose out of, or was attributable to his eligible war service or the veteran’s death was due to a disease that he would not have contracted, but for his having rendered eligible war…

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 Bridle and Repatriation Commission

Details

AGLC: Bridle and Repatriation Commission [2008] AATA 31
Case: [2008] AATA 31
Decision Date: 14 January 2008

CaseChat Overview and Summary

The case of Bridle and the Repatriation Commission involved the widow of a deceased veteran who sought to increase her pension on the basis that her husband's death from malignant neoplasm of the prostate was war-caused. The applicant argued that the veteran's death was attributable to an increase in animal fat consumption during his service, which was a result of deprivation experienced during that time. The matter was heard in the Federal Court of Australia.

The primary legal issues before the court were whether the increase in animal fat consumption due to deprivation during the veteran's service could be considered as an operational service cause of the malignant neoplasm of the prostate, and if so, whether this would entitle the widow to a higher pension under the Veterans’ Entitlements Act 1986. The court had to examine the relevant sections of the Act, the applicable Statement of Principles concerning malignant neoplasm of the prostate, and relevant case law to determine the appropriate outcome.

In reaching its decision, the court found that the applicant had established that the increase in animal fat consumption during the veteran’s service due to deprivation was a war-related cause of his malignant neoplasm of the prostate. The court relied on the principle that operational service can include circumstances that arise from the conditions of service, such as deprivation, which subsequently lead to a disease. This reasoning aligned with the approach taken in previous cases such as Repatriation Commission v Deledio and Hardman v Repatriation Commission. Consequently, the court set aside the decision under review from 18 December 2003, thereby granting the widow’s claim for an increased pension.

The court ordered that the decision under review be set aside with effect from 18 December 2003. This ruling allowed the widow to receive the increased pension based on the determination that the veteran’s death was war-caused.

Orders

Orders of the court

The decision under review is set aside with effect from 18 December 2003.

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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