Hammond and Repatriation Commission - [2003] AATA 311

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 311
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/885

VETERAN’S APPEALS DIVISION )

Re GLORIA HAMMOND

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr IR Way, Member
Date4 April 2003
PlaceBrisbane

Decision
The Tribunal sets aside the decision under review and in substitution therefore determines that the death of Raymond Hammond was war-caused and that his widow Gloria Hammond is entitled to a War Widow’s pension on and from 18 February 2000.

...................(Sgd)...................
Mr I R Way
Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war-widow’s pension – whether veteran’s death was war caused – whether veteran’s death arose out of or was attributable to his war service – whether applicant entitled to pension
Veterans Entitlements Act 1986 ss 8, 9, 119, 120, 123
Repatriation Commission v Deledio (1998) 83 FCR 82
Byrnes v Repatriation Commission (1993) 30 ALD 1
Doolette v Repatriation Commission (1990) 21 ALD 489
Re Blythe and Repatriation Commission (1982) 4 ALD 147
Repatriation Commission v Bendy (1989) 18 ALD 144
Benjamin v Repatriation Commission [2001] FCA 1879
Re Hawkins v Repatriation Commission (1993) 30 ALD 59
Repatriation Commission v Bendy (1989) 18 ALD 144
Statements of Principle
No 73 of 1997
No 136 of 1996
REASONS FOR DECISION

4 April 2003 Mr I R Way, Member

1.       This is an application by Gloria Hammond (the applicant) for review of a decision of the Repatriation Commission made on 7 August 2000, and affirmed by the Veterans’ Review Board (VRB) on 17 August 2001, that the death of her husband, Raymond Hammond (the veteran), was not war-caused within the meaning of section 8 of the Veterans Entitlements Act 1986 (the Act).
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and other documentary evidence as follows:
Exhibit A1                  Statement of the Applicant dated 3 October 2002
Exhibit R1                  Opinion of Dr Grant
Exhibit R2                  Mayne Health records
Exhibit R3                  Medical Impairment Assessments

3.       The applicant was represented by Mr E Muir and the respondent by Mr B Williams. The applicant gave oral evidence. Dr W L Wakefield gave evidence by telephone and Dr P A Grant gave oral evidence.
4.       Under section 13 of the Act the Commonwealth is liable to pay a pension by way of compensation to the dependents of a veteran, where the death of the veteran was war-caused. A dependent of a deceased veteran, including a widow (section 11), may make a claim for pension under section 14 of the Act.
5.       The applicant is a widow of a veteran who rendered operational service as defined in sub-sections 5B and 6A of the Act, namely continuous full time service outside Australia during World War II.
6.       The veteran rendered operational service as he served in the Royal Australian Airforce from 10 July 1941 to 8 November 1945 during Word War II, including service outside Australia.
7.       The veteran was…

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 Hammond and Repatriation Commission

Details

AGLC: Hammond and Repatriation Commission [2003] AATA 311
Case: [2003] AATA 311
Decision Date: 4 April 2003

CaseChat Overview and Summary

The matter before the court involved a dispute between the Repatriation Commission and Gloria Hammond regarding her eligibility for a war widow's pension. The case was heard by the Federal Court of Australia. The central issue was whether the death of Raymond Hammond, a former serviceman, was caused by his war service and thus qualified him for a war-related pension under the Veterans' Entitlements Act 1986. Specifically, the court needed to determine if his death arose out of or was attributable to his service in the armed forces.

The court was tasked with interpreting and applying the relevant sections of the Veterans' Entitlements Act 1986, including sections 8, 9, 119, 120, and 123. The key legal issue was the interpretation of the phrase "arose out of or is attributable to" in the context of determining war-related benefits. The court also had to consider relevant precedents, such as Repatriation Commission v Deledio, Byrnes v Repatriation Commission, and Doolette v Repatriation Commission, to ascertain the criteria for establishing a war-related death.

The court meticulously examined the medical history and circumstances surrounding Raymond Hammond's death, concluding that his death was indeed war-caused. The decision hinged on the substantial evidence provided, including expert medical testimony and statements of principle such as No 73 of 1997 and No 136 of 1996. The court found that the Repatriation Commission had not adequately considered the evidence and thus erred in denying the pension. Consequently, the Tribunal set aside the previous decision and ruled that Gloria Hammond was entitled to a war widow's pension from 18 February 2000.

Orders

Orders of the court

The Tribunal sets aside the decision under review and in substitution therefore determines that the death of Raymond Hammond was war-caused and that his widow Gloria Hammond is entitled to a War Widow’s pension on and from 18 February 2000.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.