Dowde and Repatriation Commission - [2008] AATA 136

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 136
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/0109

VETERANS’ APPEALS DIVISION )
ReELAINE AGNES DOWDE

Applicant
AndREPATRIATION COMMISSION

Respondent
DECISION
TribunalSenior Member M D Allen
Dr J Campbell, Member

Date21 February 2008
PlaceSydney
DecisionThe decision under review is affirmed.

.................[sgd].......................
M D Allen
Presiding Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – review of decision affirming applicant’s husbands death not war caused – delidio principles – whether material raises reasonable hypothesis connecting death with circumstances of service rendered – hypothesis must conform to a statement of principles – evidence said to establish a hypothesis connecting death with circumstances of service disproved beyond reasonable doubt – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 sections 6A, 6C, 120, 120(1), 120(3), 120(6) and 120A
CASE LAW
Repatriation Commission v Deledio (1998) 83 FCR 82
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Cornelius [2002] FCA 750
R v Hytch [2000] QCA 315
REASONS FOR DECISION

21 February 2008

Senior Member M D Allen

Dr J Campbell, Member

Summary

1. By application made 31 January 2006, the Applicant sought review of a decision by the Respondent that the death of her late husband, Eric Lionel Dowde, was not related his war-service.
2. At the hearing before this Tribunal there was no dispute between the parties that:
(i)The deceased was a veteran who had operational service as that term is defined in section 6A of the Veterans’Entitlements Act 1986;
(ii)The deceased died on 5 May 2004, the cause of death being metastatic prostate cancer;
(iii)The date of onset of the deceased’s cancer of the prostate was 2001;
(iv)During the course of his war-service, the deceased was wounded, and that Post Traumatic Stress Disorder had been accepted by the Respondent as being a war-caused disease;
(v)No evidence existed as to the deceased’s pre-war diet therefore it is accepted that the deceased ingested 126 grams of animal fat per day as per the final report of the Advisory Council on Nutrition (1936-1938).

3. As the deceased had operational service as that term is defined in s 6C of the VEA, a standard of proof in this matter is that mandated by subsection 120(1)(3) of the VEA.
4. Subsections 120(1) and (3) of the VEA provide that where the death of a veteran is claimed to be war-caused, it shall be accepted as being so caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after a consideration of the whole of the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the death suffered by the deceased with the circumstances of the service rendered by him. Pursuant to s 120A of the VEA, a hypothesis will not be a “reasonable hypothesis” unless it conforms to a so-called…

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 Dowde and Repatriation Commission

Details

AGLC: Dowde and Repatriation Commission [2008] AATA 136
Case: [2008] AATA 136
Decision Date: 21 February 2008

CaseChat Overview and Summary

The case involved a dispute between Dowde and the Repatriation Commission regarding the review of a decision that affirmed the death of Dowde’s husband was not caused by his war service. The matter was heard in the Administrative Appeals Tribunal (AAT). The central issue before the tribunal was whether the material presented raised a reasonable hypothesis that connected the husband’s death to the circumstances of his service. The tribunal was required to determine if the hypothesis conformed to the principles established in Delidio. Specifically, the tribunal needed to assess whether the evidence presented to establish the hypothesis was disproven beyond reasonable doubt.

The tribunal found that the evidence did not support the hypothesis that the husband’s death was connected to his war service. The tribunal held that the hypothesis had to align with the principles set out in Delidio, which require a connection between the circumstances of service and the death. In this case, the tribunal concluded that the evidence was insufficient to establish a reasonable hypothesis. The tribunal affirmed the initial decision that the husband’s death was not war-caused, as the evidence did not meet the required threshold of proving a connection beyond reasonable doubt.

The tribunal’s reasoning was based on the established principles of Delidio, which necessitate a clear and reasonable connection between the circumstances of service and the death. The tribunal concluded that the evidence provided was not sufficient to establish such a connection, and therefore, the decision to affirm the husband’s death as not war-caused was correct. The tribunal’s decision was based on a careful analysis of the evidence presented and the applicable legal principles. The tribunal affirmed the decision under review, thereby upholding the Repatriation Commission’s initial determination.

Orders