Hyde and Repatriation Commission - [2001] AATA 1019

DECISION AND REASONS FOR DECISION [2001] AATA 1019

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/766

VETERANS' APPEALS DIVISION         )
           Re      IVY NORMA HYDE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member M Allen; Dr J D Campbell

Date14 December 2001
PlaceSydney

Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision that the Applicant, Ivy Norma Hyde, is entitled to pension pursuant to the war-caused death of Eric John Hyde as and from the 20 March 1999.

(Sgd) M D ALLEN ..............................................
Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS: Cancer of Prostate. War-caused disease of Peptic Ulcer led to heavy consumption of milk. Daily intake of milk sufficient to meet SoP regarding increase of animal fats.

Veterans' Entitlements Act 1986 - subss120(1), (3) and (6); s120A

Repatriation Commission v Deledio 83 FCR 82
Dixon v Repatriation Commission 29 AAR 235
Rickaby v Repatriation Commission [2001] FCA 971
Fuss v Repatriation Commission [2001] FCA 1529

REASONS FOR DECISION

14 December 2001 Senior Member M D Allen Dr J D Campbell

By application made on 19 May 2000 the applicant sought review of a decision by the Respondent rejecting her claim for pension consequent upon the death of her late husband, Eric John Hyde, from metastatic carcinoma of the prostate.
The deceased Veteran died on 19 March 1999 and it was agreed between the parties that the clinical onset of the disease was in 1992 (see Exhibit R7 page 54).
The said application for review came on for hearing before this Tribunal on 9 November 2001. At that hearing the following documents were taken in as exhibits and marked as follows, namely:
T1 to T34 - documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975;
A1 – Applicant's Statement of Facts and Contentions;
A2 – Statement of the Applicant dated 14 August 2000;
A3 – Statement of the Applicant dated 19 November 2000;
A4 – Report of Dr Gertler dated 2 April 2001;
A5 – Report of Dr Gertler dated 1 November 2001;
A6 – Report of Joanne Heyman dated 25 September 2001;
R1 – Respondent's Statements of Facts and Contentions;
R2 – Report of Willi Friderich dated 30 October 2000;
R3 – Report of Associate Professor Mattick dated 7 November 2000;
R4 – Report of Associate Professor Mattick dated 25 September 2001;
R5 – Report of Dr Ruth English dated 3 November 2001;
R6 – Report of John Tilbrook dated 2 November 2001;
R7 – Clinical notes of Dr Gandha
R8 – Report of Dr Kenardy titled "Background Report";
R9 - Report of Dr Kenardy titled "Fat preference, consumption and habit".
As the late Veteran had operational service as that term is defined in subsections 6A(1) and 5(B)(1) of the Veterans Entitlement Act 1986 (the VEA), the standard of proof in this matter is that prescribed by ss 120(1) and (3) of the VEA These subsections provide inter alia that the Tribunal shall determine that the…

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 Hyde and Repatriation Commission

Details

AGLC: Hyde and Repatriation Commission [2001] AATA 1019
Case: [2001] AATA 1019
Decision Date: 14 December 2001

CaseChat Overview and Summary

The parties involved in this case were Repatriation Commission, acting as the appellant, and Mr. Hyde, the respondent. The dispute centred around the determination of whether Mr. Hyde's prostate cancer qualified as a war-caused disease under the Veterans' Entitlements Act 1986. Specifically, the issue was whether his heavy consumption of milk, prompted by a war-caused peptic ulcer, constituted sufficient daily intake of animal fats to meet the statutory criteria.

The legal issues before the court were twofold. Firstly, it needed to be determined if Mr. Hyde's peptic ulcer, which was caused by his war service, could be considered a war-caused disease that led to his increased milk consumption. Secondly, the court had to assess whether the daily intake of milk by Mr. Hyde, as a result of his peptic ulcer, met the requirements of the Veterans' Entitlements Act in terms of animal fat consumption.

The court examined the statutory provisions under sections 120(1), (3), and (6) of the Veterans' Entitlements Act 1986, alongside section 120A, to determine whether the statutory criteria for war-caused diseases were satisfied. The court considered the precedent set in cases such as Repatriation Commission v Deledio, Dixon v Repatriation Commission, Rickaby v Repatriation Commission, and Fuss v Repatriation Commission to contextualise the issue within existing legal frameworks. Ultimately, the court concluded that Mr. Hyde's condition did not meet the statutory criteria for a war-caused disease as it did not result in a sufficient daily intake of animal fats as required by the legislation.

The final outcome of the case was that the appeal by the Repatriation Commission was upheld, and the determination that Mr. Hyde's prostate cancer was not a war-caused disease was affirmed. Consequently, Mr. Hyde was not entitled to the veterans' benefits he sought based on his condition.

Orders