KNIGHT And REPATRIATION COMMISSION

[2009] AATA 929

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 929

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5801

VETERANS' APPEALS  DIVISION		)
Re		JACQUELINE KNIGHT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen
Dr Alexander, Member

Date18 November 2009

PlaceSydney

Decision The decision under review is AFFIRMED.

...................[sgd]...........................

Presiding Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – was myocardial infarction materially contributed to by passive smoking – was death war-caused or connected to defence service - decision under review is affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986 sections 6C, 68, 120, 120A

Statement of Principles concerning Ischaemic Heart Disease:  Statutory Instrument Nos. 53 of 2003 (as amended by No.9 of 2004); 54 of 2003; 10 of 2004, 89 of 2007 and 90 of 2007

CASES

Kattenberg v Repatriation Commission [2002] 34AAR 562

Repatriation Commission v Newton [2008] FCA 401

Comcare v Canute [2005] FCAFC 266

REASONS FOR DECISION

18 November 2009 Senior Member M D Allen
Dr Alexander, Member       

1. At the conclusion of this hearing of the above matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and Respondent of a copy of the decision that was in fact made, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish to them a statement in writing of the reasons of the Tribunal for the decision,

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3.      The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.

I certify that this and the following paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:         .............................[sgd]…...............................................
  K. Lynch, Associate

Date of Hearing  18 November 2009
Date of Decision  18 November 2009
Counsel for the Applicant  Mr M Vincent
Solicitor for the Applicant  Kemp & Co Lawyers
Counsel for the Respondent                  Mr Nigel Bunn
Representative for the Respondent      Department of Veterans’ Affairs

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR ALLEN:    The applicant is the widow of Keith KNIGHT, deceased, a former member of the Royal Australian Navy (“RAN”), who died on 9 July 1998, the certified cause of death being myocardial infarction. 

In these proceedings the applicant claimed that the deceased’s myocardial infarction was materially contributed to by passive smoking, to which he was subjected whilst a member of the RAN.  

The deceased had operational service, as that term is defined in section 6C of the Veterans’ Entitlements Act 1986 (“VEA”), for a total period of 194 days as well as defence service, as defined in section 68 of the Act, between 7 December 1972 and his date of discharge, namely, 18 January, 1974.

As the deceased had operational service,…