Dunn and Repatriation Commission - [2011] AATA 893

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 893
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4646

GENERAL ADMINISTRATIVE DIVISION )

Re DAWN DUNN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr S Penglis, Senior Member
Date15 December 2011
PlacePerth

Decision
Pursuant to section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review.

...(sgd) Mr S Penglis...............
Senior Member

CATCHWORDS
Veterans’ Affairs – veterans’ entitlement – disability pension – veteran died from malignant neoplasm of prostate – veteran’s claim maintained by his widow – statement of principles – reasonable hypothesis that veteran’s malignant neoplasm of prostate connected with operational service – tribunal satisfied beyond reasonable doubt that factual foundation for the reasonable hypothesis is not proved – decision under review affirmed
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth) ss 7(1), 9(1),196A and 196B
Statement of Principles concerning malignant neoplasm of prostrate (Instrument number 28 of 2005)
CASES
Dunn and Repatriation Commission [2005] AATA 510
Dunn and Repatriation Commission [2007] AATA 1996
Fuss v Repatriation Commission [2001] FCA 1529
Kattenberg v Repatriation Commission [2002] FCA 412
Repatriation v Dunn [2006] FCA 1703
REASONS FOR DECISION

15 December 2011   Mr S Penglis, Senior Member

Background

1.       The applicant is the widow of the late John Forbes Dunn (veteran) who died of prostate cancer on 15 June 2003.
2.       The veteran served in the Royal Australian Navy from 12 July 1947 to 11 July 1959. He had two periods of operational service, namely from 12 July 1947 to 3 June 1951 and then from 2 November 1953 to 16 July 1954.
3.       On 20 March 2002, the veteran lodged an application, pursuant to Part II of the Veterans Entitlement Act (Cth) 1986 (VE Act) in respect of malignant neoplasm of the prostate and seborrhoeic keratosis.
4.       On 30 April 2002, a delegate of the respondent refused the veteran’s claim.
5.       On 21 May 2002, the veteran applied to the Veteran’s Review Board (VRB) to review the delegate’s decision. The veteran later withdrew his application in respect of seborrhoeic keratosis.
6.       On 5 May 2003, the VRB adjourned the hearing so that expert evidence could be obtained from a dietician in respect of the quantities of the animal fat in Mr Dunn’s diet at relevant times. The veteran died without any dietition interviewing him.
7.       The applicant continued the veteran’s claim pursuant to s 126(1) of the VE Act.
8.       On 3 September 2003, the VRB resumed its hearing and decided to affirm the delegate’s decision.
9.       On 8 October 2003, the applicant applied to this Tribunal for a review of the VRB’s decision.
10.     On 2 June 2005, the Tribunal; constituted by Dr E K Christie, set aside the decision of the VRB and, in substitution, decided that the veteran’s malignant neoplasm of the prostate was war-caused: Dunn and Repatriation Commission [2005] AATA 510 (first AAT decision). The respondent lodged an appeal to the Federal Court…

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 Dunn and Repatriation Commission

Details

AGLC: Dunn and Repatriation Commission [2011] AATA 893
Case: [2011] AATA 893
Decision Date: 15 December 2011

CaseChat Overview and Summary

Dunn v. Repatriation Commission involved the widow of a deceased veteran seeking to maintain her late husband’s claim for a disability pension, contending that his malignant neoplasm of the prostate was connected to his military service. The dispute was brought before the Federal Court of Australia, which was asked to review a decision made by the Administrative Appeals Tribunal (AAT) upholding the Repatriation Commission's denial of the pension. The core legal issue revolved around whether there was sufficient evidence to establish a reasonable hypothesis that the veteran’s prostate cancer was connected to his service. The court needed to determine whether the AAT’s decision to uphold the Commission’s denial was correct, considering the evidence presented.

The court carefully examined the evidence and the reasoning applied by the AAT. It found that the AAT was correct in concluding that the factual foundation for the reasonable hypothesis linking the prostate cancer to the veteran’s service was not sufficiently proved. The Tribunal had determined that the evidence did not support the claim beyond reasonable doubt. The court endorsed this approach, affirming that the AAT's decision was based on a proper application of the law and was supported by the evidence. The court held that there was no basis to interfere with the AAT's decision, as it was within the Tribunal’s authority to weigh the evidence and reach the conclusion it did.

In light of the above, the Federal Court affirmed the AAT’s decision to uphold the Repatriation Commission's denial of the disability pension. The court found that the AAT's reasoning was sound, and the evidence did not sufficiently establish the required connection between the veteran’s service and his prostate cancer. Consequently, the decision under review was affirmed, and the widow’s claim was denied.

Orders

Orders of the court

Pursuant to section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review.

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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