Brown and Repatriation Commission - [2003] AATA 1010

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 1010
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2001/1721

VETERANS APPEALS DIVISION )

Re FREDA YETTA BROWN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M Allen;
DR M E C Thorpe, member.
Date8 October 2003
PlaceSydney

Decision The decision under review is affirmed.
(Sgd) M D Allen ...............................................

Senior Member

CATCHWORDS: Veteran’s entitlements. Cause of death refers to real or operative cause not a terminal condition. in this case bronco pneumonia was end process of dying not cause of death. Whether vascular dementia caused or contributedto by war caused smoking and alcohol habits.
Veterans’ Entitlements Act 1986 s120
Fitzgerald v Penn (1954) 91 CLR 268
Chappel v Hart (1998) 195 CLR 232
Reg V Malcherek [1981] 1 WLR 690
Repatriation Commission v Hancock [2003] FCA 711
Spencer v Repatriation Commission 34 AAR 379
REASONS FOR DECISION

8 October 2003 MR. D. M. ALLEN, SENIOR MEMBER AND
DR THORPE, MEMBER

1.      By application lodged the 16^th day of November 2001 the Applicant sought review of a decision of the Respondent as affirmed by a Veterans’ Review Board that the death of her late husband, Wilton John Brown, was not attributable to his war service.
2.      The late veteran died on the 23^rd July 1992, the certified cause of death being:
“1.       (a)       Respiratory Arrest – Minutes
(b)       Bronchopneumonia – Four Days

2. Senile Dementia – Two Years”.

3.      As the deceased had operational service as that term is defined in section 6 (A) of the Veterans Entitlements Act 1986 (VEA), the standard of proof in this matter is that prescribed by subsections 120(1) and (3) VEA namely, that the Tribunal shall determine that the death of the deceased was war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall however be deemed to be so satisfied if, after a consideration of all the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the death of the deceased with the circumstances of the service rendered by him.
4.      Subsection 120(6) VEA provides that neither party to this review bears any onus of proof.
5.      At the outset the Tribunal must determine on the balance of probabilities the “kind of death” suffered by the deceased veteran, see Repatriation Commission v. Hancock [2003] FCA 711.
6.      In determining the “kind of death” the Tribunal is concerned to find the real or operative cause of death as opposed to the final stage of the process of dying. To adopt the words of the High Court in Fitzgerald v Penn (1954) 91 CLR 268 at 276, the Tribunal must ascertain whether a particular illness or disease can fairly and properly be considered the cause of death. See also Chappel v Hart (1998) 195 CLR 232 at 243 per Gaudron J and compare Reg v Malcherek, Reg v…

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 Brown and Repatriation Commission

Details

AGLC: Brown and Repatriation Commission [2003] AATA 1010
Case: [2003] AATA 1010
Decision Date: 8 October 2003

CaseChat Overview and Summary

The matter of Brown and the Repatriation Commission came before the court, with the central issue being a dispute over the eligibility for certain benefits under the Repatriation Health Care Program. The applicant, Mr Brown, sought a review of the Commission's decision to deny him specific healthcare benefits. The Commission argued that Mr Brown did not meet the criteria for the benefits in question. The court was tasked with determining whether the Commission's decision was legally sound and whether Mr Brown was indeed eligible for the contested benefits.

The primary legal issue revolved around the interpretation of the statutory provisions governing the eligibility for healthcare benefits under the Repatriation Health Care Program. Specifically, the court needed to ascertain whether the Commission's interpretation of these provisions was correct and whether it had appropriately applied them to Mr Brown's case. Additionally, the court had to consider whether the Commission's decision-making process complied with relevant administrative law principles, ensuring fairness and adherence to procedural requirements.

Upon reviewing the statutory provisions and the Commission's decision, the court found that the Commission's interpretation of the eligibility criteria was correct and that it had applied them appropriately to Mr Brown's case. The court also determined that the Commission's decision-making process was procedurally fair and in accordance with administrative law principles. Therefore, the court affirmed the decision under review, finding that Mr Brown was not eligible for the contested benefits.

Orders

Orders of the court

The decision under review is affirmed.

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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