Eastwood and Repatriation Commission

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 324

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No V01/1456

VETERANS' APPEALS  DIVISION		)
Re		ROSAMOND ELIZABETH EASTWOOD

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member
Assoc. Professor J. Maynard, Member

Date8 April 2003

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(Sgd)   Joan Dwyer

Senior Member

VETERANS’ ENTITLEMENTS – whether death war-caused – causes of death shown as idiopathic pulmonary fibrosis and chronic lymphocytic leukemia – whether a reasonable hypothesis that death was due to a drug induced pulmonary fibrosis condition – appropriate standard of proof for issue whether death war-caused – whether material raises or points to a hypothesis rather than simply leaving it open as a possibility – decision affirmed

PRACTICE AND PROCEDURE – inability to have expert witnesses give concurrent evidence – one expert produced relevant journal abstract and letter and article – other expert on telephone – relevant material had to be faxed for his consideration

Veterans' Entitlements Act 1986 8, 120, 120A

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Budworth (2001) 66 ALD 285 [2001] FCA 1421

Repatriation Commission v Cooke (1998) 160 ALR 17

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Bushell v Repatriation Commission (1992) 109 ALR 30

Byrnes v Repatriation Commission (1993) 177 CLR 564

East v Repatriation Commission (1987) 74 ALR 518

Repatriation Commission v Bey (1997) 149 ALR 721

REASONS FOR DECISION

8 April 2003 Mrs Joan Dwyer, Senior Member
Assoc. Professor J. Maynard, Member  

1. This is an application under s 175 of the Veterans' Entitlements Act 1986 (“the Act”) for review of a decision of the Repatriation Commission made 17 October 2000 and affirmed by the Veterans’ Review Board (“VRB”) on 28 September 2001, that the death of Arthur Eastwood was not war-caused.

2. At the hearing Mr De Marchi, a solicitor, appeared for Mrs Eastwood. Mr Purcell of Counsel appeared for the Repatriation Commission. Mr De Marchi called Mrs Eastwood, who gave evidence by telephone, and also Dr Collins, a forensic pathologist. The respondent called Professor Cade, Director of Intensive Care, Royal Melbourne Hospital, who also gave evidence by telephone. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and also the exhibits tendered during the hearing. They included voluminous medical records relating to Mr Eastwood.

3.       The Tribunal attempted to have Professor Cade listen in to the evidence of Dr Collins, and intended to also have Dr Collins present while Professor Cade was giving his evidence..  However due to difficulties in co-ordinating the times, and to the fact that Dr Collins relied on articles he produced during his evidence, this proved impractical.  The articles were faxed to Professor Cade but he required time to consider them. 

4. Mr Eastwood was born on 9 September 1916 and died on 29 March 2000 aged 83. He served with the Royal…