Cannon and Repatriation Commission - [2003] AATA 394

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 394
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/41

VETERANS' AFFAIRS DIVISION )

Re ERIKA CANNON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr M.E.C. Thorpe, Member
Date30 April 2003
PlaceSydney

Decision The decision under review is affirmed.

……………………………….
Member

CATCHWORDS
Veterans’ Affairs – defence service – whether veteran’s death was contributed to, or aggravated by, defence service – cause of death – primary hypertrophic cardiomyopathy – whether SoP satisfied – decision affirmed
Administrative Appeals Tribunal Act 1975 s37
Veteran’s Entitlement Act 1986 ss 70(1), 70(5), 120(4), 120B, 196B(14)
Statement of Principles No. 20 of 1998
Roncevich v Repatriation Commission [2002] FCA 1458
Repatriation Commission v Law (1980) 31 ALR 140
Lees v Repatriation Commission [2002] FCAFC 398
REASONS FOR DECISION

April 2003 Dr M.E.C. Thorpe, Member

1.      This is an application by Mrs E. Cannon (the Applicant) who is the widow of the late veteran, Mr A. Cannon (the Veteran). Mrs Cannon is appealing a decision by the Repatriation Commission (the Respondent) on 3 January 2001 which rejected a claim that the death of her husband from hypertrophic cardiomyopathy was service related.
2. At the hearing, the Applicant was represented by Mr R. Sherlock. Ms J. Jagot represented the Respondent. Dr Miller gave oral evidence. The Tribunal had before it the documents lodged in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 and the following exhibits:

Exhibit Document Date

A1 Statement of Mrs E. Cannon 15 March 2002

A2 Report of Dr Miller 9 January 2003

A3 Decision of the Repatriation Commission for Mr Cannon 29 November 1996

A4 Decision of the Repatriation Commission for Mr Cannon 24 February 1998

A5 Applicant’s Statement of Facts and Contentions 7 April 2003

A6 Extract from the 15^th Edition of “Harrison’s Principles of Internal Medicine” (2001) pp 1362-1363 2001

R1 Respondent’s Statement of Facts and Contentions 16 December 2002

R2 Respondent’s Amended Statement of Facts and Contentions 19 March 2003

R3 Report of Dr Hall 15 July 2002

R4 Departmental Minute by Dr Zwatrzka 1 November 2002

R5 Supplementary Report of Dr Hall 12 March 2003

R6 Report of Professor O’Rourke 20 March 2003

R7 Lifestyle Questionaires completed by Mr Cannon 18 April 1997 and 7 July 1999
Background
3.      Mr Cannon served in the Australian Army from 23 June 1982 to 11 August 2000 (T9 p36). This period constitutes defence service in the Act. During this time Mr Cannon served in the infantry. At the time of his death he had reached the rank of Corporal.
4.      In respect of the veteran’s defence service, subsection 120(4) of the Veterans’ Entitlement Act 1986 (the Act) applies and the standard of proof is the reasonable satisfaction of the Tribunal. Since his claim for pension was lodged after 1 June 1994, s.120B of the Act applies and the decision maker is to assess to its reasonable satisfaction whether the veteran meets the criteria in accordance with any Statement of…

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 Cannon and Repatriation Commission

Details

AGLC: Cannon and Repatriation Commission [2003] AATA 394
Case: [2003] AATA 394
Decision Date: 30 April 2003

CaseChat Overview and Summary

The case of Cannon and Repatriation Commission involved the widow of Mr. Cannon, who sought to establish that his death was attributable to his service in the defence forces. The matter was heard in the Federal Court of Australia. The Repatriation Commission had determined that Mr. Cannon's death, due to primary hypertrophic cardiomyopathy, was not attributable to his defence service and thus denied the claim for dependency benefits under the Veterans’ Entitlement Act 1986. The Commission's decision was subsequently reviewed by the Administrative Appeals Tribunal, which upheld the Commission's decision.

The primary legal issue before the court was whether the death of Mr. Cannon was contributed to, or aggravated by, his defence service, in order to satisfy the Statement of Principles No. 20 of 1998. The court had to consider whether the Tribunal’s decision was correct and whether the SoP was satisfied in the context of Mr. Cannon’s medical history and service records. The interpretation and application of relevant sections of the Veterans’ Entitlement Act 1986 and prior case law, such as Roncevich v Repatriation Commission and Lees v Repatriation Commission, were crucial in determining the outcome.

The court examined the evidence presented and the findings of the Tribunal. It noted that primary hypertrophic cardiomyopathy was not listed as a disease caused by or contributed to by defence service under the SoP. The court found that the Tribunal had properly considered the evidence and had reached a decision that was consistent with the applicable legal principles. The court held that the Tribunal's decision was not flawed and that the Repatriation Commission was correct in denying the claim. The court affirmed the decision of the Tribunal and dismissed the appeal.

The final order of the court was that the decision under review, which was the decision of the Administrative Appeals Tribunal, was affirmed. The widow's claim for dependency benefits was denied, and the appeal was dismissed.

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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Exhibit	Document	Date
A1	Statement of Mrs E. Cannon	15 March 2002
A2	Report of Dr Miller	9 January 2003
A3	Decision of the Repatriation Commission for Mr Cannon	29 November 1996
A4	Decision of the Repatriation Commission for Mr Cannon	24 February 1998
A5	Applicant’s Statement of Facts and Contentions	7 April 2003
A6	Extract from the 15^th Edition of “Harrison’s Principles of Internal Medicine” (2001) pp 1362-1363	2001
R1	Respondent’s Statement of Facts and Contentions	16 December 2002
R2	Respondent’s Amended Statement of Facts and Contentions	19 March 2003
R3	Report of Dr Hall	15 July 2002
R4	Departmental Minute by Dr Zwatrzka	1 November 2002
R5	Supplementary Report of Dr Hall	12 March 2003
R6	Report of Professor O’Rourke	20 March 2003
R7	Lifestyle Questionaires completed by Mr Cannon	18 April 1997 and 7 July 1999