Howorth and Repatriation Commission - [2011] AATA 923

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 923
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0958

VETERANS’ APPEALS DIVISION )

Re Georgina Howorth

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal Deputy President J W Constance
Date21 December 2011
PlaceMelbourne

Decision
1. The decision under review, being the decision of the Repatriation Commission made 22 February 2010 is set aside.

2. In substitution for the decision set aside it is decided that the death of the late Mr Ross on 23 December 2009 was “war-caused” within the meaning of the Veterans’ Entitlements Act 1986 (Cth).

.......(sgd J W Constance).......
Deputy President

CATCHWORDS
VETERANS’ AFFAIRS – operational service with the Royal Australian Navy – whether death was war-caused – suicide - depressive condition - alcohol abuse - decision under review set aside
Hardman v Repatriation Commission (2004) 82 ALD 433
Repatriation Commission v Deledio (1998) 83 FCR 82
Woodward v Repatriation Commission [2003] FCAFC 160
Veterans’ Entitlements Act 1986 (Cth) ss 9(1), 120(1), 120(3), 120(6), 120A(3) and 120A(4)
REASONS FOR DECISION

21 December 2011
  Deputy President J W Constance

INTRODUCTION
1.      Ms Howorth is the widow of the late Mr Ross who died on 23 December 2009. From 22 August 1990 until 14 December 1990 Mr Ross rendered operational service as a member of the Royal Australian Navy.
2.      In 2010 Ms Howorth claimed benefits under the Veterans’ Entitlements Act 1986 (Cth) on the basis that her late husband’s death was “war-caused”. The Repatriation Commission rejected this claim and the Veterans’ Review Board affirmed the Commission’s decision.
3.      For the reasons which follow the decision of the Commission will be set aside and a decision that the late Mr Ross’ death was war-caused will be substituted.
MATERIAL BEFORE THE TRIBUNAL
4.      In addition to the evidence of Ms Howorth, the following material is before the Tribunal:

Exhibit

Description

A1

Copy of a statement of Georgina Howorth dated 10.3.2011

A2

Copy of a statement of Andrew Ross (undated)

A3

Copy of an alcohol questionnaire completed by Andrew Ross dated 8.2.2005

A4

Copy of a lifestyle questionnaire completed by Andrew Ross dated 9.2.2005

A5

Copy of an application for a claim for disability pension completed by Andrew Ross dated 8.12.2004

A6

Copy of the s 37 documents

R1

Copy of the Veteran’s Review Board – Decision & Reasons dated 28.11.2006

R2

Copy of a Writeway report dated 22.7.2011 and a copy of the letter of instruction dated 16.5.2011

Mr Ross’ Record of Service [1]
[1] Exhibit A6.
5.      Mr Ross was born in 1963. He enlisted in the Royal Australian Navy on 7 January 1980 and was discharged on 26 April 2000.
6.      From 22 August 1990 until 14 December 1990 Mr Ross served as a member of the crew of HMAS Adelaide. It is not in dispute that during this period Mr Ross rendered operational service.
Writeway Research Service Pty Ltd report [2]
[2] Exhibit R2.
7.      HMAS Adelaide sailed from Freemantle Western Australia on 22 August 1990 to…

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 Howorth and Repatriation Commission

Details

AGLC: Howorth and Repatriation Commission [2011] AATA 923
Case: [2011] AATA 923
Decision Date: 21 December 2011

CaseChat Overview and Summary

The matter of Howorth and the Repatriation Commission involved a dispute regarding the status of a veteran's death under the Veterans’ Entitlements Act 1986 (Cth). The deceased, Mr Ross, had served in the Royal Australian Navy and passed away on 23 December 2009. The primary issue before the court was whether Mr Ross’s death was caused by his war service, specifically if it was "war-caused" within the meaning of the Act. The case was heard and determined by the Federal Court of Australia.

The legal issues that needed resolution included whether Mr Ross's depressive condition and alcohol abuse, which culminated in his suicide, were linked to his service in the Royal Australian Navy. The court had to assess if these conditions were a direct result of his war service and whether they contributed to his death in a manner that could be classified as "war-caused". The court was also required to review the decision of the Repatriation Commission, made on 22 February 2010, which had denied the claim that Mr Ross's death was war-caused.

The Federal Court, in its decision, found that the evidence presented indicated a strong connection between Mr Ross's service and his subsequent mental health issues. The court noted that Mr Ross had suffered from a depressive condition and alcohol abuse, which were exacerbated by his experiences during his military service. The court held that these conditions were significantly influenced by his operational service, which ultimately led to his suicide. Consequently, the court set aside the decision of the Repatriation Commission and determined that Mr Ross's death was indeed "war-caused". This finding ensures that the veteran's family is entitled to the benefits and support provided under the Veterans’ Entitlements Act 1986 (Cth).

Orders

Orders of the court

1. The decision under review, being the decision of the Repatriation Commission made 22 February 2010 is set aside.

2. In substitution for the decision set aside it is decided that the death of the late Mr Ross on 23 December 2009 was “war-caused” within the meaning of the Veterans’ Entitlements Act 1986 (Cth).

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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Exhibit	Description
A1	Copy of a statement of Georgina Howorth dated 10.3.2011
A2	Copy of a statement of Andrew Ross (undated)
A3	Copy of an alcohol questionnaire completed by Andrew Ross dated 8.2.2005
A4	Copy of a lifestyle questionnaire completed by Andrew Ross dated 9.2.2005
A5	Copy of an application for a claim for disability pension completed by Andrew Ross dated 8.12.2004
A6	Copy of the s 37 documents
R1	Copy of the Veteran’s Review Board – Decision & Reasons dated 28.11.2006
R2	Copy of a Writeway report dated 22.7.2011 and a copy of the letter of instruction dated 16.5.2011