JULIETA MOFFATT and REPATRIATION COMMISSION

[2009] AATA 845

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 845

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4997

VETERANS' APPEALS DIVISION		)
Re		JULIETA  MOFFATT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date2 November 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

..................[Sgd].......................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – claim for widow’s pension – operational service with Royal Australian Air Force – death from Parkinson’s disease – application of Statements of Principles – reasonable hypothesis of relevant relationship to eligible war service not raised –– death not war-caused – decision affirmed

Veterans’ Entitlement Act 1986 (Cth), ss 5C, 5E, 6A, 7, 8, 11, 14, 119, 120, 120A
Administrative Appeals Tribunal Act 1975 (Cth), s 34J

Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Repatriation Commission v Bey (1997) 149 ALR 721 at 730

Blair and Repatriation Commission [2005] FCA 1076

REASONS FOR DECISION

2 November 2009   Mr R G Kenny, Senior Member

BACKGROUND

1.      Charles Richard Moffatt served in the Royal Australian Air Force (“RAAF”) from 19 May 1942 until 18 December 1945.  He died on 9 October 2007 at the age of 92 years.  On 1 February 2008, Julieta Moffatt, his widow and dependant as those terms are defined in ss 5E and 11, respectively, of the Veterans’ Entitlements Act 1986 (“the Act”), lodged a claim, under s 14 of the Act, for a pension. This was on the basis that Mr Moffatt’s death was believed to be war-caused under s 8 of the Act. That claim was rejected by the Repatriation Commission (“the respondent”) on 21 April 2008 and, in turn, by the Veterans’ Review Board (“the Board”) on 30 September 2008. Mrs Moffatt seeks review of that decision by the Administrative Appeals Tribunal (“the Tribunal”).

HEARING

2. Section 34J of the Administrative Appeals Tribunal Act 1975 makes provision for a hearing to be conducted in the absence of the parties.  It reads:

34J  If:

(a) it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and

(b)       the parties consent to the review being determined without a hearing;

the Tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing.

3.      Both parties provided written submissions and consented to the matter being dealt with in their absence.  I am satisfied that it is appropriate to proceed in that manner.

SERVICE

4.      Mr Moffatt served in the Northern Territory from 15 March 1943 to 28 August 1944.  It is not in dispute that he is a veteran and that all of his RAAF service constitutes eligible war service in the form of operational service in accordance with ss 5C, 7 and 6A, respectively, of the Act.

STANDARD OF PROOF, CAUSATION AND…