Gavin and Repatriation Commission - [2011] AATA 762

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 762
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0645

VETERANS' APPEALS DIVISION )

Re Eileen Gavin

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal Senior Member A K Britton
Date28 October 2011
PlaceSydney

Decision The decision under review is set aside and in substitution it is decided that Mr John Gavin’s death was war-caused.
......................[sgd]........................
Senior Member A K Britton

CATCHWORDS
VETERANS’ ENTITLEMENTS – war widow’s pension – kind of death – malignant neoplasm of the prostate – war caused death – reasonable hypothesis – increase in post-service animal fat consumption – increase related to service - decision under review set aside
Veterans’ Entitlement Act 1986 (Cth) – ss 13, 120, 120A, 196B(14)
Repatriation Commission v Deledio (1998) 83 FCR 82; [1998] FCA 391
East v Repatriation Commission (1987) 16 FCR 517
Bull v Repatriation Commission (2001) 66 ALD 271; [2001] FCA 1832
Cameron v Repatriation Commission (2003) 77 ALD 81; [2003] FCA 1323
Byrnes v Repatriation Commission (1993) 177 CLR 564; [1993] HCA 51
Statement of Principles concerning Malignant Neoplasm of the Prostate; Instrument No 28. of 2005
REASONS FOR DECISION

28 October 2011 Senior Member A K Britton

1.      Mrs Eileen Gavin seeks review of the decision made by the respondent Commission and affirmed by the Veterans' Review Board to refuse her claim made under the Veterans’ Entitlement Act 1986 (Cth) (the Act) following the death of her husband, Mr John Gavin, who served in the Australian Army during World War II.
2.      The parties agree that the “kind of death” suffered by Mr Gavin was death from prostate cancer. Mrs Gavin’s entitlement to a war widow’s pension turns on whether that condition was “war-caused”.
Statutory framework
3.      Section 13 of the Act provides that where the death of a veteran is “war-caused”, the Commonwealth will be liable to pay a pension by way of compensation to the dependants of the veteran.
4.      As Mr Gavin’s entire period of service constitutes “operational service” within the meaning of the Act, the question of whether his death was “war-caused” must be assessed by applying the standard of proof set out in ss 120 and 120A of the Act. Section 120 provides:
(1) Where a claim under Part II for a pension in respect of the ... death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that ... the death of the veteran was war-caused ... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
...
(3) In applying subsection (1) or (2) in respect of ... the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
...
(c) that the death was war-caused ...

This subsection is affected by section 120A.

5. Section 120A is headed “Reasonableness of hypothesis to be assessed by reference…

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 Gavin and Repatriation Commission

Details

AGLC: Gavin and Repatriation Commission [2011] AATA 762
Case: [2011] AATA 762
Decision Date: 28 October 2011

CaseChat Overview and Summary

The matter before the court involved Mr John Gavin, a veteran, and the Repatriation Commission. The dispute centred on the eligibility of Gavin's widow for a war widow's pension, contingent upon the determination of whether Gavin's death from a malignant neoplasm of the prostate was caused by his war service. The case was heard in the Federal Court of Australia. The widow claimed that her husband's exposure to hazardous conditions during his service contributed to his illness and subsequent death, and therefore, she was entitled to the pension. The Repatriation Commission contested this claim, arguing that there was no direct causal link between the veteran's service and his death.

The legal issues before the court were whether the death from the malignant neoplasm of the prostate was war-caused and if the increase in post-service animal fat consumption, which the widow claimed was related to her husband's service, could be considered a contributing factor to his death. The court had to determine if there was a reasonable hypothesis that the war service contributed to Gavin's death and whether the increase in animal fat consumption was reasonably related to his service. This involved examining relevant legislative provisions and previous case law concerning war-caused deaths and the criteria for establishing a causal link between service and a subsequent illness.

The court reviewed the relevant legislation, including the Veterans’ Entitlement Act 1986, and considered precedents such as Repatriation Commission v Deledio, East v Repatriation Commission, Bull v Repatriation Commission, Cameron v Repatriation Commission, and Byrnes v Repatriation Commission. The court also took into account the Statement of Principles concerning Malignant Neoplasm of the Prostate. After examining the evidence and arguments presented, the court concluded that there was a reasonable hypothesis that Gavin's war service contributed to his death, and the increase in post-service animal fat consumption was reasonably related to his service. Therefore, the decision under review was set aside, and it was determined that Gavin's death was war-caused. The court's decision allowed the widow to be eligible for the war widow's pension.

Orders

Orders of the court

The decision under review is set aside and in substitution it is decided that Mr John Gavin’s death was war-caused.

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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