Elson and Repatriation Commission - [2004] AATA 18

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 18
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/638

VETERANS' APPEALS DIVISION )

Re JEAN PHYLLIS ELSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Michael Sassella, Senior Member
Date14 January 2004
PlaceSydney

Decision The decision under review is set aside. The tribunal substitutes its decision that the applicant qualifies for a War Widow Pension with effect from 7 December 1998.

[Sgd] M Sassella Senior Member

CATCHWORDS
VETERANS' ENTITLEMENTS – War Widow Pension – dependant claims pension – veteran died of malignant neoplasm of colorectum – veteran consumed at least 250 kilograms of alcohol in a 25 year period within the 40 years before clinical onset of malignant neoplasm of colorectum
Veterans’ Entitlements Act 1986 ss 5E(1), 11(1), 14(1), (3), 20(1), 120(1), (3), 120A(3), 157(2)(a)(ii), 196B(14)
Statement of Principles 58/2002 concerning malignant neoplasm of the colorectum
Statement of Principles 23/96 concerning malignant neoplasm of the colon
Statement of Principles 5/98 concerning malignant neoplasm of the colon
Statement of Principles 76/98 concerning alcohol dependence or alcohol abuse
Statement of Principles 5/94 concerning psychoactive substance abuse and dependence
Re Jean Elson and Repatriation Commission [2002] AATA 1141
Kattenberg v Repatriation Commission (2002) 34 AAR 562
Repatriation Commission v Deledio (1998) 49 ALD 193
McKenna v Repatriation Commission (1999) 29 AAR 7Repatriation Commission v Gorton (2001) 33 AAR 370
Repatriation Commission v Williams [2001] FCA 1195
REASONS FOR DECISION

14 January 2004 Michael Sassella, Senior Member

RESULT

Mrs Elson qualifies for a War Widow Pension with effect from 7 December 1998.

BACKGROUND
1.      On 6 November 2002 the Administrative Appeals Tribunal (“the tribunal”) handed down a decision with written reasons in the matter, Re Jean Elson and Repatriation Commission [2002] AATA 1141. The tribunal affirmed the decision of the Repatriation Commission (“the respondent”). The tribunal found that Mr David Elson (“the veteran”), who was deceased and whose widow, Mrs Jean Phyllis Elson (“the applicant”), was seeking a War Widow Pension, had died of metastatic carcinoma of the colon with a date of clinical onset in the first few months of 1998.
2.      The tribunal found that, while satisfied that the available material pointed to Mr Elson consuming a total quantity of alcohol in excess of 250 kg over 25 years, the material did not point to raised facts linking that consumption with a war-caused alcohol habit. In paragraph 55 the tribunal said, “In essence, the material before the Tribunal does not point to raised facts which are consistent with the template of factor 5(c) [of a Statement of Principles (“SoP”) 58/2002[1] concerning malignant neoplasm of the colorectum] in relation to war-caused consumption alone”.. In paragraph 54 the tribunal had said that it was insufficient for factor 5(c) to argue that a veteran’s operational service had caused a material aggravation or made a contribution to the veteran’s contracting of colon cancer.
[1] Elson appealed the tribunal decision to the Federal Court of Australia. The parties agreed to remittal of the matter by consent…

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 Elson and Repatriation Commission

Details

AGLC: Elson and Repatriation Commission [2004] AATA 18
Case: [2004] AATA 18
Decision Date: 14 January 2004

CaseChat Overview and Summary

The matter before the tribunal was a dispute between Jean Elson and the Repatriation Commission regarding the eligibility of Ms Elson for a War Widow Pension. The veteran, her late husband, had died of a malignant neoplasm of the colorectum, and Ms Elson claimed that she was entitled to the pension as his dependant. The Repatriation Commission denied her claim, and she sought review of that decision by the Administrative Appeals Tribunal.

The legal issues that the tribunal was required to decide included whether the veteran's malignant neoplasm of the colorectum was attributable to his war service, whether Ms Elson was a dependant of the veteran, and whether the veteran's consumption of alcohol was a contributing factor to his illness. The tribunal needed to consider the relevant provisions of the Veterans’ Entitlements Act 1986 and the applicable statements of principles concerning malignant neoplasm of the colorectum, alcohol dependence, and psychoactive substance abuse.

The tribunal found that the veteran's malignant neoplasm of the colorectum was attributable to his war service, and that Ms Elson was his dependant. The tribunal also found that the veteran's consumption of alcohol was not a contributing factor to his illness, as it did not meet the threshold required by the relevant statement of principles. The tribunal concluded that Ms Elson was entitled to a War Widow Pension, and set aside the decision of the Repatriation Commission. The tribunal substituted its decision that Ms Elson qualifies for a War Widow Pension with effect from 7 December 1998.

Orders

Orders of the court

The decision under review is set aside. The tribunal substitutes its decision that the applicant qualifies for a War Widow Pension with effect from 7 December 1998.

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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