Harris and Repatriation Commission - [2008] AATA 1025

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1025
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1644

VETERANS' APPEALS DIVISION )

Re ANNA-LUISE HARRIS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Member
Date14 November 2008
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

..................[Sgd]................
Member

CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – claim for widow’s pension – veteran had operational service with Australian Army – death from cerebrovascular accident – application of Statements of Principles – alcohol consumption – reasonable hypothesis of relevant relationship to eligible war service not raised – death not war-caused – decision under review affirmed.
Veterans’ Entitlement Act 1986 ss 5E, 6A, 7, 8, 11, 14, 120, 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Blair and Repatriation Commission [2005] FCA 1076
Repatriation Commission v Bey (1997) 79 FCR 364
REASONS FOR DECISION

14 November 2008 Mr R G Kenny, Member

BACKGROUND
1.      Mr William Julius Henry Harris served in the Australian Army from 20 March 1942 until 16 May 1946. He died on 13 November 2002 at the age of 79 years. On 12 September 2007, Anna-Luis Harris, his “widow” and “dependant”, as those terms are defined in s 5E and s 11, respectively, of the Veterans’ Entitlements Act 1986 (the Act), lodged a claim, under s 14 of the Act, for a pension. This was on the basis that Mr Harris’ death was war-caused under s 8 of the Act. That claim was rejected by the Repatriation Commission (“the respondent”) on 18 September 2007 and, in turn, by the Veterans’ Review Board (“the Board”) on 4 March 2008. Mrs Harris seeks review of that decision by the Administrative Appeals Tribunal (the Tribunal).
SERVICE
2.      Mr Harris served in the Northern Territory from June 1942 to July 1943 and in the Pacific region on Bougainville from April 1945 to June 1945 and New Britain from June 1945 until May 1946. Initially, he served with artillery units on anti-aircraft duties but, in October 1945, he transferred to a provost unit. It is not in dispute that he is a “veteran” and that all of his army service constitutes “eligible war service” in the form of “operational service” in accordance with s 5C, s 7 and s 6A, respectively, of the Act.
ISSUES AND LEGISLATION
3.      In order for the death of Mr Harris to be accepted as being war-caused, one of the requirements in section 8 of the Act must be met. Relevant in this matter is s 8(1)(b) of the Act which reads:
“s 8 War-caused death
(1)Subject to this section… for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)       …
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;”…

4. Where, as in this…

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 Harris and Repatriation Commission

Details

AGLC: Harris and Repatriation Commission [2008] AATA 1025
Case: [2008] AATA 1025
Decision Date: 14 November 2008

CaseChat Overview and Summary

The case involves a claim for a widow’s pension by the applicant, Harris, who sought the pension following the death of her husband, a veteran who had served with the Australian Army. The deceased veteran died from a cerebrovascular accident, and the central issue was whether the death was related to his war service. The matter was heard and determined by the Administrative Appeals Tribunal.

The Tribunal was required to decide whether the death of the veteran, which occurred due to a cerebrovascular accident, was attributable to his eligible war service. This involved interpreting the relevant sections of the Veterans’ Entitlement Act 1986 and applying the Statements of Principles to determine if there was a reasonable hypothesis that the death had a relevant connection to the war service. Additionally, the Tribunal needed to consider whether the consumption of alcohol by the veteran could have contributed to the cerebrovascular accident and if it could be reasonably hypothesised that this consumption had a connection to his war service.

In reaching its decision, the Tribunal examined the evidence and concluded that the death of the veteran was not war-caused. The Tribunal found that the reasonable hypothesis of a relevant relationship between the deceased veteran's war service and his death was not raised. The Tribunal relied on previous cases, including Repatriation Commission v Deledio and Bushell v Repatriation Commission, to support its findings. The Tribunal also considered the statutory provisions and the Statements of Principles as outlined in the Veterans’ Entitlement Act 1986. Ultimately, the Tribunal affirmed the decision of the Repatriation Commission that the claim for the widow’s pension should be dismissed.

The final orders of the Tribunal were that the decision under review, which was the dismissal of the widow's pension claim by the Repatriation Commission, was affirmed. The widow’s pension claim was therefore denied.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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