Kendall and Repatriation Commission

[2011] AATA 141

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 141

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3919

VETERANS’ APPEALS DIVISION		)
Re		Glenys Kendall

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal

J W Constance, Deputy President

Dr R. McRae, Member

Date2 March 2011

PlaceMelbourne

Decision The Tribunal decides that the decision of the Veterans’ Review Board made 15 July 2008 is affirmed.

.....(sgd J W Constance)..........

Deputy President

VETERANS’ ENTITLEMENT ACT 1986 (Cth) – Entitlements – war widow’s pension – whether veteran’s death was war-caused – metastatic prostate cancer – Deledio test step 3 not met – decision affirmed

Administrative Appeals Tribunal Act 1975 s 37
Veterans’ Entitlement Act 1986 (Cth) ss 9, 120, 120A(3) and 120A(4)

Hardman v Repatriation Commission (2004) 82 ALD 433 at 445
Lees v Repatriation Commission [2002] FCAFC 398 at 16

Re Dell and Repatriation Commission (1986) 9 ALD 596 at 615

Repatriation Commission v Deledio (1998) 83 FCR 82 at 97
Re Robertson and Repatriation Commission [1998] AATA 127, (AAT 12666, 2 March 1998)

REASONS FOR DECISION

2 March 2011	J W Constance, Deputy President
Dr R. McRae, Member

INTRODUCTION

1.      Mrs Kendall is the widow of the late Mr Kendall who died on 6 July 2004.  From 1941 until late 1946 Mr Kendall rendered operational service as a member of the Australian Army.

2.      In 2004 Mrs Kendall claimed benefits under the Veterans’ Entitlement Act 1986 (Cth) on the basis that her late husband’s death was ‘war-caused’. The Repatriation Commission rejected this claim and on 15 July 2008 the Veterans’ Review Board affirmed the Commission’s decision.  Mrs Kendall has now applied to the Tribunal to review the Board’s decision.

3.      For the reasons which follow the decision under review will be affirmed.

Material Before The Tribunal

Mrs Kendall’s evidence

4.      Mrs Kendall told the Tribunal that she met her late husband in 1950 and that they were married in 1957.  She did not know Mr Kendall prior to his operational service.  She was told by family members that his family was very poor and consequently Mr Kendall's diet consisted largely of home-grown vegetables and poultry.  Red meat, cream, cheese and milk were not readily available.  Mrs Kendall understands that Mr Kendall acquired a taste for meat, butter and cheese during his service and she said that he preferred to eat these foods after they were married.

5.      Mrs Kendall received training as a nutritionist as part of her career as a teacher and was conscious of their diet.  She said that Mr Kendall insisted on eating large portions of meat and dairy foods at every meal.  This eating pattern continued for the whole of their life together although he did reduce the quantity of food he consumed after he retired in 1976.

6.      Mrs Kendall described Mr Kendall as a “slender man most of his life who looked after himself”.  He was conscious of his weight and would take steps to negate any weight gain.[1] At various times…