Jacobsen and Repatriation Commission - [2006] AATA 981

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 981
ADMINISTRATIVE APPEALS TRIBUNAL )
) Q2006/30

VETERANS' APPEALS DIVISION )

Re MARCIA JACOBSEN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
Dr KS Levy, Senior Member

Dr J B Morley, Member

Date20 November 2006
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

.............[Sgd].................................
Dr K Levy, Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – widow’s pension – veteran served in Royal Australian Army – cause of death intra-abdominal bleeding and ruptured abdominal aortic aneurysm – was cause of death related to hypertension – was hypertension war-caused – salt intake – insufficient evidence of hypertension to justify a reasonable hypothesis – decision affirmed
Veterans’ Entitlements Act 1986: ss 8 (1), 120(1) (3)
Statement of Principles No 35 of 2003; No 66 of 1998

Repatriation Commission v Gosewinckel (1999) 59 ALD 690; [1999] FCA 1273
Benjamin v Repatriation Commission (2001) 70 ALD 622; (2001) 34 AAR 270; [2001] FCA 1879
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Fogarty v Repatriation Commission [2002] FCA 1541
Repatriation Commission and Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Repatriation Commission v Stares (1996) 66 FCR 594; (1996) 41 ALD 212; (1996) 23 AAR 117
Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) 109 ALR 30; (1992) 66 ALJR 753; (1992) 29 ALD 1; (1992) 16 AAR 1
Byrnes v Repatriation Commission (1993) 177 CLR 564; (1993) 116 ALR 210; (1993)
East v Repatriation Commission (1987) 16 FCR 517; (1987) 74 ALR 518; (1987) 12 ALD 389; (1987) 6 AAR 492
Gilbert v Repatriation Commission (1989) 86 ALR 713; (1989) 10 AAR 73
Repatriation Commission v Bey (1997) 79 FCR 364; (1997) 149 ALR 721; (1997) 47 ALD 481; (1997) 26 AAR 298

REASONS FOR DECISION

20 November 2006 Dr KS Levy, Senior Member and Dr J.B. Morley, Member

INTRODUCTION

1.        The applicant’s husband, Wesley Doil Jacobsen (the veteran) died on 20 June 2004. He served with the Royal Australian Army during World War II and was deployed to Papua New Guinea during that period. The period of service was from 16 December 1941 to 2 April 1946 and as he served outside Australia, he has had operational service for the purposes of the Veteran’s Entitlements Act 1986 (the Act).
2.        The applicant submitted an application to the Repatriation Commission for widow’s pension on the basis that the veteran’s death should be recognised as being war caused. This application was rejected by the Repatriation Commission on 30 August 2004 and on review, it was rejected by the Veterans’ Review Board on 1 November 2005. The applicant now seeks review of that decision by the Administrative Appeals Tribunal (“the Tribunal”).
3.        The applicant represented herself and was assisted by Ms Pamela Niche (her niece) and Mr Robert Niche. The respondent was represented by its advocate, Mr Bruce Williams.
BACKGROUND
4.        The veteran was…

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 Jacobsen and Repatriation Commission

Details

AGLC: Jacobsen and Repatriation Commission [2006] AATA 981
Case: [2006] AATA 981
Decision Date: 20 November 2006

CaseChat Overview and Summary

The matter in Jacobsen and Repatriation Commission involved a claim for a widow's pension under the Veterans' Entitlements Act 1986. The deceased veteran had served in the Royal Australian Army and died from intra-abdominal bleeding and a ruptured abdominal aortic aneurysm. The central dispute was whether the cause of death was related to hypertension, which was alleged to have been caused by the veteran's service. The case was heard by the Federal Court of Australia.

The court had to determine whether the veteran's hypertension, if it existed, was caused by his military service and, if so, whether this condition was linked to his death. This required examining the medical evidence and determining if there was sufficient proof to establish a reasonable hypothesis that the hypertension was war-caused. The court also needed to assess the relevance of the veteran's salt intake to his condition.

In reaching its decision, the court found that the evidence did not sufficiently support a reasonable hypothesis that the veteran had hypertension. Consequently, the cause of death could not be linked to hypertension, and therefore, it was not related to the veteran's military service. The court affirmed the decision of the Repatriation Commission denying the widow's pension. The reasoning was based on the insufficient evidence to establish the required causal link between the veteran's service, hypertension, and his death.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

20 November 2006	Dr KS Levy, Senior Member and Dr J.B. Morley, Member
INTRODUCTION