FRANKS and REPATRIATION COMMISSION - [2010] AATA 329

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 329
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3582

VETERANS' APPEALS DIVISION )

Re PAULINE FRANKS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President D G Jarvis
Mr S Ellis AM, Member
Date6 May 2010
PlaceAdelaide

Decision
The decision under review is affirmed.

(Signed)
D G Jarvis
Deputy President

CATCHWORDS
VETERANS' ENTITLEMENTS - War widow's pension - eligible defence service - ischaemic heart disease and diabetes mellitus – whether veteran was obese for five years prior to clinical onset of ischaemic heart disease - evidence does not support connection with service - decision under review affirmed.
Veterans’ Entitlements Act 1986 (Cth), ss 70(5), 70(7), 120(4) and 120B(3)
Bushell v Repatriation Commission (1992) 175 CLR 408
McDonald v Director-General of Social Security (1984) 1 FCR 354
McKenna v Repatriation Commission (1999) 86 FCR 144
Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303
Roncevich v Repatriation Commission (2005) 222 CLR 115
Somerset v Repatriation Commission [2005] FCA 1399
REASONS FOR DECISION

6 May 2010   Deputy President D G Jarvis
  Mr S Ellis AM, Member

1.      The applicant, Pauline Franks, is the widow of the late Terrence Milton Franks deceased who died on 5 August 2005. She has claimed a widow’s pension pursuant to the Veterans’ Entitlements Act 1986 (Cth) (the VE Act).
2.      The deceased served in the Royal Australian Navy from 25 November 1967 until 24 November 1987. His service included eligible defence service from 7 December 1972 until his discharge in 1987.
3.      Mrs Franks claims that the death of the deceased was war-caused because it arose out of, or was attributable to his defence service. She claims that the deceased’s obesity led to the development of diabetes mellitus and ischaemic heart disease, and that the obesity itself was relevantly related to his service. It is common ground that the causes of the deceased’s death included ischaemic heart disease and diabetes mellitus.
4.      The Repatriation Commission, after reviewing a number of factors referred to in relevant Statements of Principles (SoPs), decided that the death of the deceased was not related to the deceased’s service. This decision was affirmed by the Veterans’ Review Board (VRB). Mrs Franks has applied to this tribunal for review of the Commission’s decision, as so affirmed.
Issues Before the Tribunal
5.      The issues before us are:
(a)whether the deceased’s death from diabetes mellitus was relevantly related to his defence service; and
(b)whether the deceased’s ischaemic heart disease was relevantly related to his defence service.

6. The deceased’s service also included operational service, from 13 to 28 November 1968, when he was serving on HMAS Sydney. However, it was not contended that the conditions which caused his death were related to this service, and the evidence before us would not support any hypothesis on which such a contention could be based.
Background Facts
7. The following background facts are based on evidence given by Mrs Franks, and on the documentary evidence…

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 FRANKS and REPATRIATION COMMISSION

Details

AGLC: FRANKS and REPATRIATION COMMISSION [2010] AATA 329
Case: [2010] AATA 329
Decision Date: 6 May 2010

CaseChat Overview and Summary

Franks brought a case against the Repatriation Commission concerning the eligibility of his late wife for a war widow's pension. The central dispute was whether the veteran's ischaemic heart disease and diabetes mellitus were connected to his eligible defence service. The case was heard in the Federal Court of Australia.

The court had to decide whether the veteran was obese for five years prior to the clinical onset of ischaemic heart disease, a requirement under the Veterans’ Entitlements Act 1986 (Cth). The legal issue hinged on establishing a causal link between the veteran's service and his medical conditions. The court examined the evidence presented, including medical records and expert opinions, to determine if the veteran's service was a contributing factor to his health issues.

The court found that the evidence did not support a connection between the veteran's service and his ischaemic heart disease. It was noted that the veteran's obesity, which was a contributing factor to his heart disease, could not be attributed to his service. The court relied on previous cases such as Bushell v Repatriation Commission and Roncevich v Repatriation Commission to support its reasoning. The court concluded that the decision under review was correct and affirmed it.

No additional orders were made beyond affirming the decision under review. The court held that the veteran's ischaemic heart disease and diabetes mellitus were not connected to his eligible defence service, thereby disqualifying his late wife from receiving a war widow's pension.

Orders

Orders of the court

The decision under review is affirmed.

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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