Fuss v Repatriation Commission

[2001] FCA 1529

Fuss v Repatriation Commission [2001] FCA 1529
Veterans' Entitlements

Fuss v Repatriation Commission [2001] FCA 1529

VETERANS' ENTITLEMENTS - Death claim - Veteran died from metastatic carcinoma of unknown primary - Hypothesis advanced to Administrative Appeals Tribunal that veteran contracted Helicobacter pylori infection at Morotai, while on operational service, and this caused stomach cancer - No direct evidence that veteran suffered either H pylori infection or stomach cancer - Statement of Principles concerning malignant neoplasm of the stomach specified H pylori infection as a factor supporting causation - Tribunal rejected the hypothesis because of the absence of facts that would "allow the Tribunal to establish" the elements of the hypothesis - Test to be applied by Tribunal pursuant to s 120(3) of Veterans' Entitlements Act - Whether Tribunal erred in law in test applied.

Veterans' Entitlements Act 1986 ss 120, 120A.

Repatriation Commission v Bey (1997) 79 FCR 364 applied.

Deledio v Repatriation Commission (1997) 25 AAR 396; 47 ALD 261 and (on appeal) (1998) 83 FCR 82 discussed.

DULCIE EDNA FUSS v REPATRIATION COMMISSION

N 1026 of 2001

WILCOX J

SYDNEY

2 NOVEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1026 of 2001

BETWEEN:	DULCIE EDNA FUSS APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	2 NOVEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.       The decision of the Administrative Appeals Tribunal dated 7 June 2001 be set aside.

2.       The matter be remitted to the said Tribunal for further hearing and determination according to law.

3.       The respondent, Repatriation Commission, pay the costs incurred by the applicant, Dulcie Edna Fuss, in connection with the proceeding.

Note:       Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1026 of 2001

BETWEEN:	DULCIE EDNA FUSS APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	WILCOX J
DATE:	2 NOVEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1       This is an application, by way of appeal, against a decision of the Administrative Appeals Tribunal ("the Tribunal") in connection with a claim for a widow's pension under the Veterans' Entitlements Act 1986. Section 44 confers a right of appeal to this Court only in respect of error of law.

The Background

2       The applicant, Dulcie Edna Fuss, is the widow of Albert Walter Fuss who died on 7 April 1998. Mr Fuss served in the Defence Force, apparently in the Australian Army, from 28 June 1941 to 24 January 1946. During approximately six months of that period, he was stationed in Morotai, an island in what is now Indonesia.

3       On Mr Fuss's death certificate, the stated cause of death was "metastatic carcinoma of unknown primary 2 months". At the hearing before the Tribunal, the parties agreed the cause of death was properly to be described as "metastatic adeno-carcinoma of unknown primary". The Tribunal, having reviewed the evidence, so found.

4       In relation to cause of…