JUNE L’ESTRANGE and REPATRIATION COMMISSION

[2010] AATA 150

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 150

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2008/1515   

VETERANS’ APPEALS DIVISION		)
Re		JUNE L’ESTRANGE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Ms N Isenberg, Senior Member

Dr T Austin AM, Member

Date01/03/2010

PlaceSydney

Decision The decision under review is SET ASIDE and substituted with the decision that the veteran’s death was war-caused, and that the Commonwealth is required to pay pension to the Applicant.

....................[SGD}..........................

Ms N Isenberg

Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – operational service – claim that the veteran’s death was war-caused – consideration of Statement of Principles – Reasonable hypothesis - the Tribunal decides that the decision under review is set aside.

Veterans’ Entitlements Act 1986 (Cth) ss 9, 120(1), 120(3), 120A and 196

Statement of Principles – Instrument No   of   concerning

Bull v Repatriation Commission (2001) 66 ALD 271

Bushell v Repatriation Commission (1992) 175 CLR 408

Elliott v Repatriation Commission (2002) 73 ALD 377

Fitzgerald v Penn (1954) 91 CLR 268

Fogarty v Repatriation Commission (2003) 37 AAR 363

Hardman v Repatriation Commission (2004) 82 ALD 433

Lees v Repatriation Commission (2002) 125 FCR 331

McKenna v Repatriation Commission [1999] FCA 323

Repatriation Commission v Hancock [2003] FCA 711

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Gorton [2001] FCA 1194

Repatriation Commission v Keeley (2000) 98 FCR 108

Repatriation Commission v Cooke (1998) 90 FCR 307

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Repatriation Commission v Cooke (1998) 90 FCR 307

Repatriation Commission v Budworth (2001) 116 FCR 200

Repatriation Commission v Bey (1997) 79 FCR 364

Youngnickel v Repatriation Commission [2004] FCA 1691

REASONS FOR DECISION

Ms N Isenberg, Senior Member

Dr T Austin AM, Member

1.      The decision under review is the decision of the Repatriation Commission dated 12 May 2006, as affirmed by the Veterans’ Review Board (the VRB) on 8 August 2006. That decision refused the claim that Mr L’Estrange‘s death was service related.

ISSUE BEFORE THE TRIBUNAL

2.      The issue to be considered by the Tribunal is whether the veteran’s death was war-caused.

BACKGROUND

3.      Mr L’Estrange first enlisted in the Australian Army on 5 October 1940 and served until 31 May 1946. He served on large barge companies or small ships companies, in the South Pacific.

4.      The whole of that service was operational service as defined in section 6A of the Veterans’ Entitlements Act 1986 (the VE Act).

LEGISLATIVE BACKGROUND

5. Section 8 of the VE Act provides for when an injury or disease is taken to be war-caused:

War-caused death

(1)Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war‑caused if:

(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

…

(d)in the opinion of…