HAWE and REPATRIATION COMMISSION

Case [2011] AATA 504

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 504

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3923

VETERANS' APPEALS DIVISION )
Re ALISON HAWE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr P McDermott RFD, Senior Member and
Associate Professor J B Morley RFD, Member

Date22 July 2011

PlaceBrisbane

Decision

The Tribunal sets aside the decision under review and substitutes the decision that the applicant is entitled to a war widow’s pension with effect from 5 July 2007.

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

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Pensions, benefits and entitlements – Widow’s pension – Applicant dependent of veteran – Operational service with Australian Army – Diagnoses of posttraumatic stress disorder, panic disorder, anxiety disorder and paranoid psychotic delusions following operational service  – Death of veteran from respiratory failure caused by myasthenia gravis and cerebral ischaemia – Hypotheses that all four psychiatric conditions and cerebral ischaemia were war-caused and contributed to death of veteran – Hypotheses for panic disorder and cerebral ischaemia reasonable – Reasonable hypotheses not disproved beyond reasonable doubt – Decision under review set aside

Veterans’ Entitlements Act 1986 (Cth) ss 8, 9, 13, 120, 196A,196B

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408

Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564

East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517.

Gilbert v Repatriation Commission [1989] FCA 31; (1989) 86 ALR 713

Repatriation Commission v Bey (1997) 79 FCR 364

Repatriation Commission v Cooke (1998) 90 FCR 307

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82

Repatriation Commission v Gorton (2001) 65 ALD 609

Repatriation Commission v Hancock [2003] FCA 711; (2003) 37 AAR 383

Repatriation Commission v Stares (1996) 41 ALD 212

REASONS FOR DECISION

22 July 2011 Dr P McDermott RFD, Senior Member and Associate Professor J B Morley RFD, Member

INTRODUCTION

1.      Ms Alison Hawe (“the applicant”) was a dependent of the late Philip Gawne (“the veteran”), who in World War II served with the Australian Army in New Guinea. The applicant has applied for a war widow’s pension. We have to decide whether the death of the late veteran was related to his service.

DECISIONS

2.      On 16 October 2007, a delegate of the Repatriation Commission rejected a claim by the applicant for war widow’s pension on the ground that the death of the veteran was not related to his service.

3.      The applicant sought review of the decision from the Veterans’ Review Board (“VRB”). On 22 July 2009, the VRB affirmed the decision.

4.      The applicant now seeks review of the decision by this Tribunal.

SERVICE

5.      The veteran served in the Australian Army from 1 June 1944 until 23 December 1946.

6.      On 18 July 1945, he disembarked on operational service in New Guinea. There is evidence that the veteran served in Wewak and Rabaul from 18 July 1945 to 30 June 1946.[1] Therefore, we find that the veteran rendered operational service.[2] 

[1]…

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HAWE and REPATRIATION COMMISSION [2011] AATA 504
Case
[2011] AATA 504
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CaseChat Overview and Summary

Hawe sought a war widow’s pension following the death of her husband, a former serviceman, who had served with the Australian Army. Hawe claimed that her husband’s death was caused by respiratory failure due to myasthenia gravis and cerebral ischaemia, both of which were a result of his operational service. Hawe also claimed that during his service, her husband developed posttraumatic stress disorder, panic disorder, anxiety disorder, and paranoid psychotic delusions. The Repatriation Commission determined that Hawe was not entitled to a war widow’s pension because there were no reasonable hypotheses that her husband's death was caused by his service. Hawe appealed this decision to the Administrative Appeals Tribunal.

The central legal issue in this case was whether there were reasonable hypotheses that Hawe’s husband’s death was caused by his war service, which would entitle Hawe to a war widow’s pension. The Tribunal had to consider whether the hypotheses that all four psychiatric conditions and cerebral ischaemia were war-caused and contributed to the veteran's death were reasonable and not disproven beyond reasonable doubt.

The Tribunal concluded that the hypotheses that Hawe’s husband’s panic disorder and cerebral ischaemia were war-caused were reasonable and had not been disproven beyond reasonable doubt. Therefore, the Tribunal held that Hawe was entitled to a war widow’s pension as the conditions of the relevant legislation had been met. The Tribunal set aside the decision under review and substituted it with a decision that Hawe was entitled to a war widow’s pension with effect from 5 July 2007.

The Tribunal's final orders were that the decision under review was set aside, and a decision was substituted that Hawe was entitled to a war widow’s pension from 5 July 2007.

Orders

Orders of the court

The Tribunal sets aside the decision under review and substitutes the decision that the applicant is entitled to a war widow’s pension with effect from 5 July 2007.

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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