Lecole and Repatriation Commission - [2005] AATA 327

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 327
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/994

VETERANS' APPEALS DIVISION
)

Re DAPHNE LECOLE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr EK Christie, Member
Date12 April 2005
PlaceBrisbane

Decision
The Tribunal affirms the decision under review. This means Mrs Lecole’s application for review is unsuccessful.

..................[Sgd].........................
EK Christie
Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war widow’s pension – colorectal cancer – alcohol threshold – reasonable hypothesis raised by assumed or raised fact – satisfaction of Statement of Principles – war-caused death
Veterans’ Entitlements Act 1986 ss 120(1), 120(3), 196
Repatriation Commission v Deledio 1998) 49 ALD 193
Critch v Repatriation Commission (1996) 43 ALD 574
Byrnes v Repatriation commission (1993) 177 CLR 564
Connors v Repatriation Commission [2000] FCA 783
Borrett v Repatriation Commission [2000] FCA 1829
Re Borrett and Repatriation Commission [2000] AATA 481
Kattenberg v Repatriation Commission [2002] FCA 412
REASONS FOR DECISION

12 April 2005 Dr EK Christie, Member

1. The Tribunal issued the following Direction as part of its decision made on 24 September 2004 following the hearing of this application for review.
“(a)the respondent arrange for a posthumous psychiatric evaluation of the kind of injury that the late Mr Lecole may have suffered in the immediate post-war service period as well as in the later part of the post-war period. The standard of proof in this regard to be the ‘reasonable satisfaction’ standard in subsection 120(4); and
(b)the matter be relisted for a resumed hearing on a date to be fixed.”

2.      The respondent responded in good faith and arranged for the posthumous psychiatric evaluation as specified in the Tribunal’s Direction. Dr William Kingswell, Consultant Psychiatrist, prepared a report regarding the mental health of the late Mr Lecole. His expert report was filed with the Tribunal on 23 February 2005.
3.      A Telephone Directions Hearing was held on 11 March 2005 to determine with the parties, the most effective case management process for addressing Dr Kingswell’s report and further submissions. The parties agreed that written supplementary submissions in response to the expert medical report was the preferred process for proceeding to complete the information and evidence before the Tribunal. Supplementary submissions from the applicant and the respondent were filed with the Tribunal on 18 March 2005 and 23 February 2005, respectively.
Earlier Findings By The Tribunal
4.      With respect to “Deledio Step 3” [“Whether the Hypothesis is a Reasonable One”], the Tribunal concluded:
“57.    In relation to the hypothesis identified in [the instant case], and pursuant to subsection 120(3) of the Act, the following factors are contained within the [Malignant Neoplasm of the Colorectum] SoP and are consistent with the template or factor:
‘Factors that must be related to service
4.        Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.        The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lecole and Repatriation Commission

Details

AGLC: Lecole and Repatriation Commission [2005] AATA 327
Case: [2005] AATA 327
Decision Date: 12 April 2005

CaseChat Overview and Summary

The matter before the Court involved Mrs Lecole, who sought a review of a decision made by the Repatriation Commission in relation to her eligibility for a war widow’s pension. The core issue revolved around whether her late husband's death from colorectal cancer could be considered as war-caused, which would entitle her to the pension under the Veterans’ Entitlements Act 1986. Mrs Lecole argued that the Commission failed to properly consider the impact of her late husband’s alcohol consumption on his health and subsequent death. The Court had to determine whether the threshold for alcohol consumption raised a reasonable hypothesis that the alcohol contributed to the cancer, thus impacting the eligibility for the pension.

The primary legal issue was whether the Repatriation Commission appropriately considered the evidence regarding the deceased veteran's alcohol consumption and its potential impact on his death from colorectal cancer. The Court needed to assess whether the Commission’s decision was consistent with the principles laid down in relevant case law, including the requirement to satisfy the Statement of Principles as per the Veterans’ Entitlements Act 1986. The Court also had to consider whether the Commission properly applied the legal standard of proof in assessing Mrs Lecole’s application.

The Court found that the Repatriation Commission had correctly applied the relevant legal principles and evidence in making its decision. It held that the threshold for alcohol consumption in this case did not raise a reasonable hypothesis that alcohol contributed to the veteran's death. The Court determined that the Commission's decision was consistent with the applicable case law, including the precedent set in Byrnes v Repatriation Commission and Connors v Repatriation Commission. The Court also noted that the Commission had appropriately considered the evidence before it and that Mrs Lecole had not provided sufficient evidence to satisfy the Statement of Principles. Therefore, the Court affirmed the decision under review, finding that Mrs Lecole's application for review was unsuccessful.

The Tribunal’s decision affirms the Repatriation Commission’s earlier ruling, thereby dismissing Mrs Lecole’s application for review. Consequently, Mrs Lecole remains ineligible for the war widow’s pension in relation to her late husband’s death.

Orders

Orders of the court

The Tribunal affirms the decision under review. This means Mrs Lecole’s application for review is unsuccessful.

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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