Cree and Repatriation Commission

Case [2005] AATA 850

Administrative

Appeals

Tribunal
 

DECISION AND REASONS FOR DECISION [2005] AATA 850

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/778

VETERANS' APPEALS DIVISION

)
Re GWENDOLINE MAVIS CREE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr SC Fisher, Member

Date 2 September 2005

PlaceBrisbane

Decision

The Tribunal decides:

(a)      to set aside the VRB decision under review of 10 August 2004            (affirming a decision of the Repatriation Commission dated            26  November 2003) and in substitution the Tribunal finds that the            conditions of hypertension and ischaemic heart disease of the            veteran from which the veteran died were caused or contributed to            by the veteran’s operational service in the Australian Army and are            therefore war-caused with effect from 12 June 2003; and

(b)      to remit the matter of assessment of widows’ pension in relation to            the Applicant to the Repatriation Commission.

  …………[Sgd]..……..
  SC Fisher
   Member

CATCHWORDS

VETERANS’ APPEALS – Veteran’s Entitlements Act – Widow’s Pension - hypertension - ischaemic heart disease – war caused injury – operational service – Deledio applied – decision set aside – matter remitted to Repatriation Commission for reassessment of the widow’s pension

Veterans’ Entitlements Act 1986 ss119(1)(g), 120(1), 120(3), 120(4), 120(6), 196B

Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248
Bantick and Secretary, Dept. of Family and Community Services [2003] AATA 472
Bramwell v Repatriation Commission (1998) 51 ALD 56
Bull v Repatriation Commission [2001] FCA 1832
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Fenner v Repatriation Commission [2005] FCA 27
Grundman v Repatriation Commission [2001] FCA 892
Haughey and Repatriation Commission [2005] AATA 189
Hillier v Repatriation Commission [2004] AATA 897
Kattenberg v Repatriation Commission [2002] FCA 412
Mines v Repatriation Commission [2004] FCA 1331
O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356
Parnell-Schoeneveld v Repatriation Commission [2003] FCA 153
Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Stoddart [2003] FCAFC 300
Secretary, Department of Social Security v Murphy [1998] FCA 809
Schmidt v Repatriation Commission [2004] FCA 1158
Repatriation Commission v Gorton (2001) 110 FCR 321
Woodward v Repatriation Commission [2003] FCAFC 160

REASONS FOR DECISION

2 September 2005   Mr SC Fisher, Member       

Introduction And Background

1.      Mr John Alfred Cree (the veteran) served with the Royal Australian Engineers in Papua New Guinea and Morotai from 31 January 1942 until 1 November 1945  (this service also being classified as operational service).  The veteran died on 11 June 2003 aged 84 years.

Jurisdiction

2.      This appeal is governed by the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The Tribunal has jurisdiction in this appeal by virtue of sections 174 - 176 of the Act. In these Reasons for Decision, references to statutory provisions are to provisions of the Act unless the context indicates otherwise.

The Decision under Review

3.      The decision under review is a decision made by the Repatriation Commission (the Respondent) on 26 November 2003 refusing the claim of Mrs Gwendoline Mavis Cree…

Continue reading Cree and Repatriation Commission

Sign in free to access the full text

Details
AGLC
Cree and Repatriation Commission [2005] AATA 850
Case
[2005] AATA 850
Decision Date

CaseChat Overview and Summary

In the case of Cree and Repatriation Commission, the applicant, Cree, sought a review of the decision made by the Repatriation Commission that denied her claim for a widow's pension. The applicant's husband, a former member of the Australian Army, had died from hypertension and ischaemic heart disease. The Repatriation Commission found that these conditions were not war-caused and consequently denied the widow's pension. The Federal Court was required to determine whether the conditions suffered by the veteran were caused or contributed to by his operational service in the Australian Army.

The court considered the application under the Veterans’ Entitlements Act 1986, focusing on sections 119(1)(g), 120(1), 120(3), 120(4), 120(6), and 196B. The court examined the evidence presented, including medical records and expert opinions, to assess the causal link between the veteran's service and his medical conditions. The court also reviewed relevant case law and decisions, such as Ajka Pty Ltd v Australian Fisheries Management Authority and Parnell-Schoeneveld v Repatriation Commission, to determine the appropriate legal standards and principles. The court concluded that the Repatriation Commission erred in its assessment and that the conditions were indeed war-caused, leading to the decision to set aside the Commission's determination and remit the matter for reassessment.

The Federal Court found that the Repatriation Commission had applied an incorrect legal standard in its assessment of the widow's pension claim. The court determined that the Commission had not adequately considered the evidence and expert opinions that supported a causal link between the veteran's service and his medical conditions. Consequently, the court set aside the decision of the Repatriation Commission and remitted the matter back to the Commission for reassessment of the widow's pension claim. The court's decision was based on a thorough review of the evidence and the application of the relevant statutory provisions and case law.

The final orders of the court were to set aside the decision of the Repatriation Commission dated 10 August 2004, which affirmed a decision of 26 November 2003, and to remit the matter of the assessment of the widow's pension to the Repatriation Commission. The court found that the conditions of hypertension and ischaemic heart disease suffered by the veteran were war-caused, with effect from 12 June 2003.

Orders

Orders of the court

The Tribunal decides:

(a) to set aside the VRB decision under review of 10 August 2004 (affirming a decision of the Repatriation Commission dated 26 November 2003) and in substitution the Tribunal finds that the conditions of hypertension and ischaemic heart disease of the veteran from which the veteran died were caused or contributed to by the veteran’s operational service in the Australian Army and are therefore war-caused with effect from 12 June 2003; and

(b) to remit the matter of assessment of widows’ pension in relation to the Applicant to the Repatriation Commission.

…………[Sgd]..……..

SC Fisher

Member

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.