SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION O'Loughlin J.(1)
CATCHWORDS
Veterans' Entitlements Act (1986) - War widow's pension - determination of the manner in which a death can be treated as "war caused" - relevant considerations - meaning of phrase "was attributable to" in para 8(1)(b) and the phrase "reasonable hypothesis" in sub.s 120(3)
HEARING
ADELAIDE
#DATE 1:6:1990
Counsel for the Appellant Mr. B. Lander QC with Mr. M. Frayne
Solicitors for the Appellant White Berman and Co.
Counsel for the Respondent Ms. C. Branson with Mr. J. Miller
Solicitors for the Respondent Australian Government Solicitor
ORDER
1. The Appeal be dismissed.
2. The decision of the Administrative Appeals Tribunal be affirmed.
3. No order as to costs of this Appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Max St. Clair Doolette died on 20 January 1985 at the age of 60. He had enlisted in the Royal Australian Air Force on 9 July 1942 and had served as a wireless operator in Bomber Command between 17 November 1943 and his return to Australia on 30 July 1945; he was discharged on 1 October 1945.
On 18 April 1985, the appellant, his widow, lodged a claim for a war widow's pension. The Repatriation Commission rejected that claim on 29 July 1985 on the ground that the deceased's death was not related to his service in the Armed Forces. On 12 February 1987 the Veterans' Review Board affirmed the decision of the Commission. Mrs. Doolette then sought from the Administrative Appeals Tribunal a review of the Commission's decision. On 20 March 1989 Deputy President Layton published her reasons affirming the decision of the Commission.
The appellant now appeals to this Court from the decision of the learned Deputy President. Although the claim was originally made pursuant to the provisions of the repealed Repatriation Act 1920 (Cth), the Veterans' Entitlements Act (1986) (Cth) (assented to 19 May 1986) now governs the outcome of these proceedings and it is to the provisions of that Act to which reference will be made.
Certain important facts relating to the medical history of Mr. Doolette were not contested and can be briefly stated.
In 1952 traces of sugar were found in his urine; there was no earlier history of diabetes. In 1954 he was diagnosed as suffering from diabetes mellitus type 2. Then in March 1973, he suffered diabetic retinopathy which is severe haemorrhaging to the retina of the eye. This resulted in total blindness. Finally, on 27 September 1980, he suffered a myocardial infarction with left ventricular failure. The medical opinions of the two endocrinologists, Drs Burnet and Phillips who gave evidence before the Tribunal was consistent - Mr. Doolette's diabetic condition would have been a significant contributing factor to the myocardial infarction. His heart disease…
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.
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Details
AGLC
Doolette, V.F. v. The Repatriation Commission [1990] FCA 294 ((1986) 21 ALD 489)
Case
[1990] FCA 294
Decision Date
CaseChat Overview and Summary
Doolette v Repatriation Commission involved the widow of a deceased serviceman who was challenging the Repatriation Commission's decision to deny her a war widow's pension. The central issue was the interpretation of the phrase "was attributable to" in section 8(1)(b) of the Veterans' Entitlements Act 1986, and whether the deceased's death could be considered "war caused." The dispute was brought to the Federal Court of Australia, which was tasked with reviewing the decision of the Administrative Appeals Tribunal that had upheld the Commission's denial.
The court was required to decide if the deceased's death was attributable to his war service and if it was reasonable to hypothesise that the war service caused the death. The court had to examine the meaning of "attributable to" and "reasonable hypothesis" in the context of the Act and the relevant legislative provisions. It needed to determine if the Tribunal had correctly applied the statutory criteria in making its decision.
In examining the case, the court found that the Tribunal had appropriately considered all relevant factors and correctly applied the statutory provisions. The court held that the Tribunal's interpretation of "attributable to" and "reasonable hypothesis" was consistent with the legislative intent. The court also noted that the Tribunal had not erred in its findings of fact or law. As a result, the court dismissed the appeal and affirmed the decision of the Administrative Appeals Tribunal. The court made no order as to the costs of the appeal.
Orders
Orders of the court
1. The Appeal be dismissed.
2. The decision of the Administrative Appeals Tribunal be affirmed.
3. No order as to costs of this Appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.