Joan Donovan v Repatriation Commission

[2011] AATA 510

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 510

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2748

VETERANS'        APPEALS       DIVISION		)
Re		JOAN DONOVAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss E A Shanahan, Member

Date25 July 2011

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and substitutes its decision that the Applicant qualifies for the widow’s pension under the Veterans’ Entitlements Act 1986.

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Member

VETERANS’ AFFAIRS – claim for widow’s pension – kind of death – acute pancreatitis – application of the Statement of Principles – alcohol consumption – eligible war service – reasonable satisfaction – decision set aside

Veterans’ Entitlements Act 1986 (Cth) s 7, s 8, s 13, s 120, s 120A, s 120B

Kattenberg v Repatriation Commission (2002) 73 ALD 365

Military Rehabilitation and Compensation Commission v Wall (2005) 88 ALD 1

Re Kathleen Robertson and Repatriation Commission [1998] AATA 127

Repatriation Commission v Codd (2007) 95 ALD 619

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Repatriation Commission v Law (1980) 47 FLR 57

Winch v Repatriation Commission [1998] FCA 1110

Winch v Repatriation Commission (1999) 55 ALD 351

Statement of Principles Instrument No 46 of 1997 concerning acute pancreatitis as amended by No 75 of 1998 and No 42 of 2003

Statement of Principles Instrument No 86 of 2011 concerning acute pancreatitis

REASONS FOR DECISION

25 July 2011 Miss E A Shanahan, Member       

1.Mrs Donovan is the widow of Graeme Joseph Donovan (the Veteran) who died on 5 February 1993.  The Veteran had eligible defence service from 7 December 1972 until 30 August 1974.  Mrs Donovan lodged a claim for the widow’s pension on 23 June 2009.  The claim was rejected on 17 August 2009 by a delegate of the Repatriation Commission (the Commission).  The Veterans’ Review Board (VRB) affirmed the delegate’s decision on 7 June 2010.  Mrs Donovan applied to this Tribunal for a review of the decision on 8 July 2010.

2.Mrs Donovan was represented by Mr John Horan, an advocate of the Returned and Services League. Mr Ken Rudge appeared for the Commission.  Mrs Donovan gave evidence before the Tribunal.  The parties tendered the following documents:

(a)for the Applicant:

·a photograph of a group of men including the late Veteran – Exhibit A1;

·a photograph of Lieutenant Ralph McMillan – Exhibit A2;

·the envelope containing a letter from Mrs McMillan, posted in 2010 – Exhibit A3(a);

·the letter from Mrs McMillan – Exhibit A3(b);

·the report of Mr PJ Harrington dated 30 December 2010 – Exhibit A4; and

(b)for the Respondent:

·documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents) – Exhibit R1;

·the report of Professor John Cade dated 7 September 2010 – Exhibit R2;

·a report from Writeway Research Service dated 29 September 2010 – Exhibit R3;

·the transcript of the VRB hearing of 7 June 2010 – Exhibit R4;

·the Veteran’s Service Medical Documents (49 pages) – Exhibit R5; and

·supplementary T-documents numbered 54a to…