Dunn and Repatriation Commission - [2005] AATA 510

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 510
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/391

VETERANS' APPEALS DIVISION )

Re DAWN ELEANOR DUNN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr EK Christie, Member
Date 2 June 2005
PlacePerth

Decision
The Tribunal sets aside the decision under review and in substitution for it decides that the late Mr Dunn’s “malignant neoplasm of the prostate” was war-caused. Date of effect of the decision is 20 December 2001.
The Tribunal makes a direction that the respondent now considers the implications of this decision with respect to determining the appropriate pension entitlements for Dawn Eleanor Dunn.

................[Sgd].........................
EK Christie
Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war widows’ pension – malignant neoplasm of the prostate – war-caused death – reasonable hypotheses – facts associated with the hypothesis necessary to support the hypothesis or which are inconsistent with the hypothesis and proof beyond reasonable doubt – expert evidence: evidentiary weight to attach to mathematical (predictive) models – expert evidence: inferences on dietary intake
Veterans’ Entitlements Act 1986
Roberts v Repatriation Commission [2002] AATA 351
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Whetton (1991) 24 ALD 690
Dixon v Repatriation Commission (1999) 29 AAR 235
Caswell v Powell Duffryn Associated Collieries 3 (1939) All ER 722
Lawrence v Kempsey Shire Council (1995) 87 LGERA 49
Mason v Repatriation Commission [2000] FCA 1409
Kattenberg v Repatriation Commission [2002] FCA 412
REASONS FOR DECISION

2 June 2005 Dr EK Christie, Member

1. This is an application by Dawn Eleanor Dunn to review a decision of the Veterans’ Review Board (“the VRB”) made on 3 September 2003 which refused to accept that malignant neoplasm of the late veteran was war-caused.
2.In arriving at its decision, the VRB concluded that it was:
“…of the opinion that the material [did] not raise a reasonable hypothesis within the meaning of subsection 120(3). It follows that the Board is satisfied beyond reasonable doubt, for the purposes of subsection 120(1), that there is no sufficient ground for determining that the veteran’s malignant neoplasm of the prostate was war-caused.”

3. At the hearing, Eleanor Dunn was represented by Mr R Grayden, Solicitor. The Repatriation Commission was represented by Mr C Ponnuthurai, a Departmental Advocate.
4. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents, Exhibit R1) and the various documents tendered by the parties.
Facts
5. The general facts were not in dispute and may be stated briefly. The late Mr Dunn was born on 1 November 1929 and served in the Royal Australian Navy from 12 July 1947 to 11 July 1959. His periods of operational service which constituted eligible war service were:
§ 12 July 1947 to 30 June 1951 (World War II); and
§ 2 November 1953 to 16 July 1954 (Korea).

6. In October 1994, Mr Dunn had an estimation of prostatic specific…

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 [2005] AATA 510
Case: [2005] AATA 510
Decision Date: 2 June 2005

CaseChat Overview and Summary

Dunn sought a review of a decision of the Repatriation Commission, which found that the prostate cancer that resulted in the death of her late husband, Mr Dunn, was not war-caused. Dunn appealed the decision to the Administrative Appeals Tribunal (AAT), arguing that her husband's prostate cancer was a war-caused injury, which would entitle her to a war widows’ pension. The Tribunal was required to determine whether Mr Dunn’s prostate cancer was war-caused, and, if so, what the implications were for Dunn’s pension entitlement.

The primary legal issue before the Tribunal was whether the evidence presented by Dunn was sufficient to establish that Mr Dunn’s prostate cancer was war-caused. The Tribunal considered the evidentiary weight to be given to expert evidence presented by both parties, particularly in relation to mathematical models predicting the likelihood of prostate cancer developing in war veterans, and the inferences that could be drawn from dietary intake. The Tribunal also considered whether the evidence satisfied the requirement of proof beyond reasonable doubt, or whether it was sufficient to support a reasonable hypothesis.

In determining the matter, the Tribunal found that the evidence presented by Dunn was sufficient to establish a reasonable hypothesis that Mr Dunn’s prostate cancer was war-caused. The Tribunal found that the expert evidence presented by Dunn was persuasive, particularly in relation to the mathematical models, and that the evidence was consistent with the facts associated with the hypothesis. The Tribunal also found that the evidence did not require proof beyond reasonable doubt, and that a reasonable hypothesis was sufficient. Accordingly, the Tribunal found that Mr Dunn’s prostate cancer was war-caused and set aside the decision of the Repatriation Commission.

The Tribunal made a direction that the Repatriation Commission consider the implications of this decision with respect to determining the appropriate pension entitlements for Dunn. The date of effect of the decision was set as 20 December 2001.

Orders

Orders of the court

The Tribunal sets aside the decision under review and in substitution for it decides that the late Mr Dunn’s “malignant neoplasm of the prostate” was war-caused. Date of effect of the decision is 20 December 2001.

The Tribunal makes a direction that the respondent now considers the implications of this decision with respect to determining the appropriate pension entitlements for Dawn Eleanor Dunn.

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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