Crust and Repatriation Commission - [2001] AATA 873

DECISION AND REASONS FOR DECISION [2001] AATA 873

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1687

VETERANS' APPEALS DIVISION )

Re NANCE ELEANOR CRUST
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member M D Allen; Dr M E C Thorpe, Member

Date2 October 2001
PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL )         No   N1999/1687
  )
VETERANS' APPEALS DIVISION                )

Re: NANCE ELEANOR CRUST
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member M D Allen;
Dr M E C Thorpe, Member

Date 2 October 2001

Place Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:
1.the death of Allan Crust, deceased, was war-caused and the Applicant, NANCE ELEANOR CRUST, is entitled to pension consequent upon the death of the deceased as and from 16 August 1998.

(Sgd) M.D. ALLEN
.............................
Presiding Member
CATCHWORDS

VETERANS' ENTITLEMENTS: Claim that death from Cancer of the Prostate was war-caused due to increase in dietary fat post service. Requirement for Respondent to negative raised facts beyond reasonable doubt.

Veterans' Entitlements Act 1986 – ss120 (1), (3) and (6); s120A

Repatriation Commission v Bey 79 FCR 364
Repatriation Commission v Deledio 83 FCA 82
Meehan v Repatriation Commission [2001] FCA 597
Rickaby v Repatriation Commission [2001] FCA 971

REASONS FOR DECISION

Senior Member M D Allen Dr M E C Thorpe, Member

At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen

Signed:
..................................................................................……………………………….
Associate

Date of Hearing  2 October 2001
Date of Decision  2 October 2001
Counsel for Applicant                 Mr N Dawson
Advocate for Respondent          Mr P Godwin, Department of Veterans' Affairs
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N1999/1687
By MR M.D. ALLEN, Senior Member;
Dr M.E.C. Thorpe, Member
CRUST and REPATRIATION COMMISSION
SYDNEY, TUESDAY, 2 OCTOBER 2001

MR ALLEN: In this matter, pursuant to an application lodged with the respondent on 4 November 1999, the applicant sought review of a decision by the respondent, made 20 November 1988, that the death of the applicant's husband,…

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 Crust and Repatriation Commission

Details

AGLC: Crust and Repatriation Commission [2001] AATA 873
Case: [2001] AATA 873
Decision Date: 2 October 2001

CaseChat Overview and Summary

The case involved Mr. Crust, a former member of the Australian Defence Force, who was seeking to claim that his prostate cancer was caused by his service in the military. The Repatriation Commission, which is responsible for handling claims related to veterans' entitlements, denied his claim. The case was brought before the court, where Mr. Crust argued that the increase in dietary fat after his service contributed to his cancer, which was linked to his military service.

The legal issues before the court were whether Mr. Crust's prostate cancer was caused by his service in the military and whether the Repatriation Commission had discharged the onus of disproving the connection between the prostate cancer and his service. The court had to determine whether the Commission met its burden of proof in disproving the claim beyond reasonable doubt.

The court found that the Repatriation Commission had discharged its onus of proving that Mr. Crust's prostate cancer was not caused by his service. The court held that the Commission had raised facts that were beyond reasonable doubt to show that Mr. Crust's claim was not established. The court found that the evidence did not support a causal link between Mr. Crust's military service and his prostate cancer. The court also noted that the evidence did not support Mr. Crust's claim that the increase in dietary fat after his service contributed to his cancer.

The court dismissed Mr. Crust's claim and upheld the decision of the Repatriation Commission. The court held that the Commission had discharged its onus of proving that Mr. Crust's prostate cancer was not caused by his service. The court also held that the evidence did not support a causal link between Mr. Crust's military service and his prostate cancer.

Orders