Lecole and Repatriation Commission

[2004] AATA 997

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 997

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/994

VETERANS' APPEALS DIVISION		)
Re		DAPHNE LECOLE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr EK Christie, Member

Date24 September 2004  

PlaceBrisbane

Decision

The Tribunal directs that:

(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.

  ……………[Sgd]………
  EK Christie
  Member

CATCHWORDS

VETERANS' AFFAIRS – benefits and entitlements - war widow's pension - colorectal cancer - alcohol threshold - assumed fact reasonably open to be inferred from, pointed to, raised by and so permitted by the material - 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)

Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Stares (1996) 41 ALD 212
East v Repatriation Commission (1987) 74 ALR 518
Horne v Repatriation Commission (1996) 24 AAR 127
Critch v Repatriation Commission (1996) 43 ALD 574
Stares v Repatriation Commission (1996) 66 FCR 594
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Bey (1997) 47 ALD 481
Bushell v Repatriation Commission (1992) 175 CLR 408
Connors v Repatriation Commission [2000] FCA 783
Repatriation Commission v Whetton (1991) 24 ALD 690
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Jackman v Repatriation Commission [1997] FCA 564
Repatriation Commission v Williams [2001] FCA 1195
Borrett v Repatriation Commission [2000] FCA 1829
Re Borrett and Repatriation Commission [2000] AATA 481
McLean v Repatriation Commission [2001] FCA 1505

REASONS FOR DECISION

24 September 2004   Dr EK Christie, Member     

1. This is an application by Daphne Lecole to review a decision of the Veterans’ Review Board (“the VRB”) made on 1 September 2003.  The VRB decided that the death of her late husband, Celestin Joseph Lecole, was not war-caused.

2. In reaching its decision, the VRB concluded, on the evidence before it, that:

   “13.     While the Board accepts the correctness of the contention by Mr Clarke that aspects of service in Moratai were stressful for Australian personnel serving there, there is no evidence to link the veteran with any particular such incidents.  Further, even if it were the case that the veteran’s alcohol consumption were related more than temporally with his service, there is no evidence before the Board which would suggest a causal association with service and the continued consumption for more than forty years after service was completed.  For example, there is no evidence of a psychiatric condition which would trigger that response.” (T5, Folio 40)

3. At the hearing, Daphne Lecole was represented by Mr PB O’Neill of…