Jackson and Repatriation Commission - [2008] AATA 650

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 650
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600170

VETERANS' APPEALS DIVISION )

Re DOROTHY MYRTLE JACKSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)
Professor P Reilly AO (Member)
Date28 July 2008
PlaceAdelaide

Decision
The decision under review is affirmed.

..............................................
J G SHORT
(Member)

CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – widow’s pension – operational service – claim that death through malignant neoplasm of the prostate was war-caused through increased animal fat consumption due to deprivation during service – decision affirmed
Veterans’ Entitlements Act 1986 ss 8, 9, 13, 119, 120, 120A, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
Repatriation Commission v Bey (1997) 79 FCR 364
Young Nickel v Repatriation Commission [2004] FCA 1691
Collins v Administrative Appeals Tribunal [2007] FCAFC 116
Bushell v Repatriation Commission (1992) 175 CLR 408
Statement of Principles Instrument No 28 of 2005
REASONS FOR DECISION

28 July 2008   Mr J G Short (Member)
  Professor P Reilly AO (Member)

1.      Mrs Dorothy Jackson sought review of a decision of the respondent (the Commission) dated 22 October 2003 which rejected her claim for widow’s pension relating to the death of her late husband on 26 June 1997 at the age of 78 years, on the basis that the veteran’s death was not war-caused. The decision was affirmed by the Veterans’ Review Board (the VRB) on 30 March 2006.
issue before the tribunal
2.      The issue before the Tribunal is whether the late veteran’s death from malignant neoplasm of the prostate was war-caused.
3.      Mr Jackson served in the Royal Australian Air Force from 30 July 1940 until 27 November 1945. Because he served in New Guinea, the whole of this service constitutes operational service as defined in the Veterans’ Entitlements Act 1986 (the VE Act).
legislative background
4. Section 8 of the VE Act sets out when an injury or disease is taken to be war-caused. If the veteran’s death resulted from an occurrence which happened while the veteran was rendering operational service or arose out of, or was attributable to, his eligible war service, or the veterans’ death was due to a disease that he would not have contracted, but for his having rendered eligible war service, or but for changes in his environment consequent upon having rendered eligible war service, then his death will be taken to be war-caused.
5. Where a veteran’s death is war-caused, the Commonwealth is liable to pay pension by way of compensation to a dependent, which includes a widow (s 13(1) of the VE Act).
6. As the veteran rendered operational service, the determination of whether his death was war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sub-sections require the Tribunal to find that the veteran’s…

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 Jackson and Repatriation Commission

Details

AGLC: Jackson and Repatriation Commission [2008] AATA 650
Case: [2008] AATA 650
Decision Date: 28 July 2008

CaseChat Overview and Summary

In the case of Jackson and Repatriation Commission, the applicant, the widow of a deceased veteran, sought a pension on the grounds that her husband's death from malignant neoplasm of the prostate was war-caused due to increased animal fat consumption during his service, a consequence of deprivation. The Repatriation Commission found that the disease was not war-caused and rejected her claim for a pension. The widow subsequently sought judicial review of this decision in the Federal Court. The primary issue before the court was whether the Repatriation Commission correctly interpreted and applied the Veterans' Entitlements Act 1986 in determining that the applicant's husband's death was not attributable to his war service. This involved examining whether the disease could be considered war-caused due to the claimed increased consumption of animal fat during service, as well as the relevance of the Statement of Principles Instrument No 28 of 2005.

The court considered the relevant statutory provisions and the principles established in prior cases, such as Repatriation Commission v Deledio and Hardman v Repatriation Commission. It held that the Commission had properly applied the relevant legislative provisions and relevant case law in reaching its decision. The court found that the applicant had not provided sufficient evidence to establish a causal link between the veteran's service and the development of the malignant neoplasm of the prostate. The court also noted that the Statement of Principles Instrument No 28 of 2005 did not support the applicant's claim, as it did not recognise an increased risk of such diseases due to dietary factors during service. Therefore, the court affirmed the Commission's decision.

The final orders of the court were that the decision of the Repatriation Commission was affirmed, and the widow's application for judicial review was dismissed. The widow was not entitled to the pension she sought on the basis that her husband's death was not war-caused.

Orders

Orders of the court

The decision under review is affirmed.

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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VETERANS' APPEALS DIVISION		)
Re		DOROTHY MYRTLE JACKSON