Coleman and Repatriation Commission - [2011] AATA 610

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 610
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2007

VETERANS' APPEALS DIVISION )

Re Elva Coleman

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal Senior Member A K Britton, Dr I Alexander
Date1 September 2011
PlaceSydney

Decision The decision under review is set aside and in substitution it is decided that Mr Victor Coleman’s death was war-caused.
.......................[sgd].......................
Senior Member A K Britton

CATCHWORDS
VETERANS’ ENTITLEMENTS – war widow’s pension – kind of death – malignant neoplasm of the prostate – war caused death – reasonable hypothesis – increase in post-service animal fat consumption – increase related to service - decision under review set aside
Veterans’ Entitlement Act 1986 (Cth) – ss 13, 120, 120A, 196B(14)
Repatriation Commission v Deledio (1998) 83 FCR 82; [1998] FCA 391
Bushell v Repatriation Commission (1992) 175 CLR 408; [1992] HCA 47
East v Repatriation Commission (1987) 16 FCR 517
Bull v Repatriation Commission (2001) 66 ALD 271; [2001] FCA 1832
Cameron v Repatriation Commission (2003) 77 ALD 81; [2003] FCA 1323
Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192
Statement of Principles concerning Malignant Neoplasm of the Prostate; Instrument No 28. of 2005
REASONS FOR DECISION

1 September 2011 Senior Member A K Britton

1.      Mrs Elva Coleman is the widow of veteran, Mr Victor Coleman, who died of prostate cancer in October 2007 at the age of 86. Mrs Coleman’s claim, made under the Veterans’ Entitlement Act 1986 (Cth) (the Act), for a war widow's pension was refused by the Repatriation Commission (the Commission) and on review, by the Veterans' Review Board. She now seeks review of that decision by the Administrative Appeals Tribunal.
2.      Mr Coleman enlisted in the Australian Army in December 1941 and was discharged in June 1946. His entire period of service constitutes “operational service” within the meaning of the Act.
3.      There is no argument that the “kind of death” suffered by Mr Coleman was death from prostate cancer. Mrs Coleman’s entitlement to a pension under the Act turns on whether that condition was “war-caused”.
Statutory framework
4.      Section 13 of the Act provides that where the death of a veteran is “war-caused”, the Commonwealth will be liable to pay a pension by way of compensation to the dependants of the veteran.
5.      In determining whether Mr Coleman’s death was “war-caused”, we are required to apply the standard of proof set out in ss 120 and 120A of the Act. Section 120 provides:
(1) Where a claim under Part II for a pension in respect of the ... death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that ... the death of the veteran was war-caused ... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
...
(3) In applying subsection (1) or (2) in respect of ... the death of a person, related to service…

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 Coleman and Repatriation Commission

Details

AGLC: Coleman and Repatriation Commission [2011] AATA 610
Case: [2011] AATA 610
Decision Date: 1 September 2011

CaseChat Overview and Summary

The applicant, Mrs Coleman, sought a war widow’s pension under the Veterans’ Entitlements Act 1986 (Cth) following the death of her husband, Mr Victor Coleman. The dispute centred around whether Mr Coleman’s death from a malignant neoplasm of the prostate was caused by his war service. The case was heard in the Federal Court of Australia.

The legal issues for the court to determine were whether Mr Coleman's death was war-caused and if the Repatriation Commission's decision to deny the pension was correct. The court had to examine if there was a reasonable hypothesis that the malignant neoplasm was attributable to Mr Coleman’s service and whether the death was within the ambit of the relevant Statement of Principles.

The court considered evidence that Mr Coleman's post-service animal fat consumption increased, which was related to his service, and applied the principle that a reasonable hypothesis can establish war causation. The court held that the Repatriation Commission had erred in its decision, finding that there was a reasonable hypothesis that Mr Coleman’s death was war-caused. Accordingly, the decision under review was set aside, and it was decided that Mr Coleman’s death was war-caused.

The final orders of the court were to set aside the Repatriation Commission's decision and to determine that Mr Coleman's death was war-caused, thereby entitling Mrs Coleman to a war widow’s pension.

Orders

Orders of the court

The decision under review is set aside and in substitution it is decided that Mr Victor Coleman’s death was war-caused.

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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