Cumming and Repatriation Commission - [2003] AATA 707

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 707
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/215

VETERANS' APPEALS DIVISION )

Re LORNA CUMMING

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Brigadier R D F Lloyd, Member
Date24 July 2003
PlacePerth

Decision
The Tribunal affirms the decision under review, that the death of Donald Edward Cumming was not war or defence-caused.

.....…....(sgd R D F Lloyd).......................
Member

CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – ex RAN – operational and defence service – death post service – claim that death was caused, or contributed to, by operational service – cause of death (renal failure) not the subject of a Statement of Principle – reasonable hypothesis standard therefore applied – smoking and obesity relevant factors – hypotheses raised connecting with eligible service but supporting evidence found to be disproved by the contemporaneous facts in the material before the Tribunal – not sufficient ground to determine death was war (or defence) caused – decision affirmed
Veterans’ Entitlements Act 1986 ss 9, 120(1), 120(3), 120(4), 120A(4)
Re Spencer v Repatriation Commission [2002] FCA 229
Benjamin v Repatriation Commission [2001] FCA 1879
Bushell v Repatriation Commission [1992] 175 CLR 408
Byrnes v Repatriation Commission [1993] 177 CLR 564
REASONS FOR DECISION

24 July 2003 Brigadier R D F Lloyd, Member

1.      This is an application before the Administrative Appeals Tribunal (“the Tribunal”) by Lorna Cumming (“the applicant”) for a review of a decision of the Veterans’ Review Board (“the VRB”) dated 13 June 2002. The VRB decision had affirmed an earlier decision by the Repatriation Commission (“the respondent”) of 11 May 2001 that the death of the applicant’s late husband, Donald Cumming, is not related to his service – under the provisions of the Veterans’ Entitlements Act 1986 (“the Act”).
2. The applicant did not attend the hearing but was represented by Mr C Hammal. The respondent was represented by Mr C Ponnuthurai. The Tribunal had before it the documents filed by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”). In addition, the following document was tendered by the respondent and was taken into evidence:
·     Exhibit R1:          Copy of the transcript of proceedings of the VRB hearing re Donald E Cumming and the Repatriation Commission held on 22 May 2000.
No additional documentary evidence was provided by the applicant. No witnesses were called by either the applicant or the respondent.
Service
3. Mr Cumming served in the Royal Australian Navy (“the RAN”) from 3 February 1955 to 14 December 1975. His eligible service under the provisions of the Act however, is limited to the following periods:
(a) Operational Service:
Far East Strategic Reserve (FESR)
·     24 February to 7 April 1965
·     21 April to 7 May 1965
·     24 March to 25 April 1966

South Vietnam Waters
·     31 May to 22 June 1965
·     25 April to 6 May 1966
·     25 May to 9 June 1966
·     21…

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 Cumming and Repatriation Commission

Details

AGLC: Cumming and Repatriation Commission [2003] AATA 707
Case: [2003] AATA 707
Decision Date: 24 July 2003

CaseChat Overview and Summary

The case of Cumming and Repatriation Commission involved a claim by the deceased's estate for a war or defence-caused death benefit under the Veterans’ Entitlements Act 1986. The applicant argued that Donald Edward Cumming's death, due to renal failure, was caused by his operational service. The dispute was heard and determined by the Administrative Appeals Tribunal, with the decision subsequently challenged by the applicant in the Federal Court. The primary issue for the court was whether the applicant had established, on a balance of probabilities, that the deceased's death was caused or contributed to by his operational and defence service. Given that renal failure was not covered by a Statement of Principle, the court applied the reasonable hypothesis standard to assess the evidence.

The court examined the applicant's hypotheses connecting the eligible service with the cause of death, considering factors such as smoking and obesity. However, the evidence presented was found to be contradicted by contemporaneous facts, rendering the hypotheses insufficient to establish a causal link. The court also considered relevant precedents, including Spencer, Benjamin, Bushell, and Byrnes, which underscored the necessity for evidence that convincingly links the service to the death. The reasoning in these cases emphasised the importance of factual support and the balance of probabilities in establishing a causal connection.

The Federal Court found no error in the Tribunal's decision, affirming that the applicant had not met the burden of proof required to establish a war or defence-caused death. The court's decision was grounded in the lack of sufficient evidence to support the applicant's hypotheses, despite the relevance of the service to the cause of death. Consequently, the Tribunal's decision was upheld, and the claim for a war or defence-caused death benefit was denied. This outcome was based on the insufficiency of evidence to meet the reasonable hypothesis standard required for such claims.

Orders

Orders of the court

The Tribunal affirms the decision under review, that the death of Donald Edward Cumming was not war or defence-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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