Brown and Repatriation Commission

[2006] AATA 348

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 348

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/290

VETERANS' APPEALS  DIVISION		)
Re		EVE BROWN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly and Member, Dr Pat Lynch

Date12 April 2006

PlaceSydney

Decision The decision under review is affirmed.

[sgd]  Senior Member, Mrs Josephine Kelly

Presiding Member

CATCHWORDS

VETERANS’ APPEALS – widow’s pension – operational service – kind of death – hypothesis raised that kind of death was cardio-respiratory failure – kind of death determined to be Non-Hodgkin’s Lymphoma – Statement of Principles (SoP) not satisfied – decision affirmed.

LEGISLATION
Veterans’ Entitlement Act 1986 ss 6A, 8, 120 and 120A

CASELAW
Repatriation Commission v Hancock [2003] FCA 711 (16 July 2003)
Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

12 April 2006   Senior Member, Mrs Josephine Kelly and
  Member, Dr Pat Lynch     

Background

1.      Mr Robert Brown served in the Australian Army (“Army”) between 1 October 1941 and 20 July 1943 and the Royal Australian Air Force (“RAAF”) between 21 July 1943 and 17 January 1946. This period is operational service pursuant to s 6A(1) of the Veterans’ Entitlement Act 1986 (“the Act”). He died on 29 June 2003, aged 82.  His widow, Mrs Eve Brown, seeks the review of decisions made by the Repatriation Commission and the Veteran’s Review Board, refusing her application for a war widow’s pension. 

Date of Effect

2.      The date of effect if Mrs Brown is successful would be 19 August 2003.

Issue

3.      This issue is whether Mr Brown’s death was “war-caused”. By the end of the evidence, Mr Vincent, who appeared for Mrs Brown said that the only issue was whether Ischaemic Heart Disease (“IHD”) contributed to Mr Brown’s death. He relied on the opinion of Dr Edwards that the kind of death was pneumonia secondary to Non-Hodgkin’s lymphoma on a background of IHD. He did not rely on IHD as a “kind of death” which had been proposed by Dr Garvey, who gave evidence in the case for Mrs Brown. However, as that evidence was before us we consider that we do need to address it.

Law

4. Death will be taken to be war-caused pursuant to s 8(1)(b) of the Veterans’ Entitlements Act 1986 (“the Act”), if:

The death of the veteran, arose out of, or was attributable to, any eligible war service rendered by the veteran; ..

5.      This is a claim relating to "operational service" made on or after 1 June 1994.  The death will be war-caused unless the Tribunal is satisfied to the contrary beyond reasonable doubt (see s 120(1), s 120(3) and s120A).

6.      Justice Selway held in Repatriation Commission v Hancock [2003] FCA 711 (16 July 2003) that two preconditions other than causation must be dealt with before step one of the methodology set out in Repatriation Commission v Deledio (1998) 83 FCR 82, is followed. There is no dispute in this case that Mr Brown…