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…
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- AGLC
- JUNE L’ESTRANGE and REPATRIATION COMMISSION [2010] AATA 150
- Case
- [2010] AATA 150
- Decision Date
CaseChat Overview and Summary
In examining the case, the court meticulously reviewed the evidence and arguments presented by both parties. The court considered whether the Repatriation Commission’s decision was in accordance with the relevant statutory provisions and if it correctly applied the principles established in previous cases. The court further assessed the sufficiency of the evidence to support a reasonable hypothesis that the veteran’s death was caused by his operational service. In its reasoning, the court found that the Commission had failed to adequately consider certain evidence and had misapplied the legal principles, leading to an incorrect conclusion. Consequently, the court determined that the decision under review was flawed and decided to set it aside.
The Federal Court substituted the original decision with one that recognised the veteran’s death as war-caused. As a result, the Commonwealth is mandated to pay a pension to the applicant. This outcome reflects the court’s recognition of the importance of accurately applying the statutory criteria and principles to ensure that veterans and their families receive the benefits to which they are entitled.
Orders
Orders of the court
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.
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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