MacGregor and Repatriation Commission - [2008] AATA 230

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 230
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V200600750

VETERANS' AFFAIRS DIVISION )

Re DAPHNE MACGREGOR (deceased)

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr Egon Fice and Dr Roderick McRae, Members
Date26 March 2008
PlaceMelbourne

Decision The Tribunal affirms the decision of the Repatriation Commission made on 19 September 2005 refusing Mrs MacGregor’s claim for a pension because of the death of her husband.

...................[Sgd].....................
Mr Egon Fice
Member

Veterans’ Affairs – war-caused disease – estate continuing compensation claim – smoking – ischaemic heart disease – gastric rumination – neurasthenia – failure to diagnose – failure to obtain appropriate clinical management
Safety, Rehabilitation and Compensation Act 1988
Veterans’ Entitlements Act 1986
Brew v Repatriation Commission [1999] 30 AAR 63
Comcare v Mooi (1996) 69 FCR 439
Johnston v The Commonwealth [1982] 150 CLR 331
Repatriation Commission v Bey (1997) 79 FCR 364
REASONS FOR DECISION

26 March 2008 Mr Egon Fice and Dr Roderick McRae, Members

1. Although this application was filed by Daphne Joan MacGregor seeking a widow’s pension, Mrs MacGregor died before this matter came on for hearing before the Tribunal. Ms Susan Adam, the Executrix of the Estate of Mrs MacGregor, applied to the Repatriation Commission (the Commission) to continue the claim on Mrs MacGregor’s behalf. The Commission granted Ms Adam approval to do so, pursuant to s 126 of the Veterans’ Entitlements Act 1986 (the VE Act), on 8 December 2006. The events which have lead to this claim occurred over sixty years ago, during the Second World War and most of the witnesses to the events are deceased.
2.     Mrs MacGregor was the widow of Gregor MacGregor who died on 16 January 1970 as a consequence of ischaemic heart disease. Mrs MacGregor claimed that her husband’s death was war-caused and that she was therefore entitled to a service pension.
3.     We should mention that there appears to be some confusion in the documents regarding the spelling of the veteran’s name. The veteran’s military service documents all spell his name McGregor. His signature, where it appears on those documents, confirms that spelling. However, the Marriage Certificate in evidence spells his name MacGregor, even though the signature on it is clearly McGregor.   Mrs MacGregor appears to have consistently spelled her name MacGregor.   Despite this anomaly, we are satisfied, on balance, that the veteran in this case is the same person as that referred to by Mrs MacGregor as her late husband.   The signature on the service documents appears identical to that on the Marriage Certificate. Therefore, for the sake of convenience, we have used the name MacGregor when referring to the veteran.
4.     On 19 September 2005 the Commission refused Mrs MacGregor’s claim. On 27 June 2006 the Veterans’ Review Board (the VRB) affirmed the Commission’s decision.
5. The only issue before the Tribunal is whether Mr MacGregor’s death was war‑caused within the meaning of s 8 of the VE Act.
RELEVANT…

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 MacGregor and Repatriation Commission

Details

AGLC: MacGregor and Repatriation Commission [2008] AATA 230
Case: [2008] AATA 230
Decision Date: 26 March 2008

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal involved Mrs MacGregor, the appellant, who sought review of a decision by the Repatriation Commission, the respondent, that denied her a pension following the death of her husband. The tribunal was tasked with determining whether the Repatriation Commission's decision was legally sound and if the denial of her pension claim was justified.

The primary legal issue before the tribunal was whether the Repatriation Commission correctly applied the relevant legislative provisions in denying Mrs MacGregor's claim for a pension. Specifically, the tribunal had to examine the interpretation and application of the relevant sections of the legislation that govern pension eligibility in the context of the death of a veteran. Additionally, the tribunal needed to consider whether the Commission's decision was supported by the evidence and whether any errors in law or procedure warranted overturning the decision.

In its judgment, the tribunal found that the Repatriation Commission had properly interpreted and applied the relevant legislative provisions. The tribunal confirmed that Mrs MacGregor did not meet the eligibility criteria for a pension under the legislation, as her husband's death did not occur under circumstances that would qualify her for such a benefit. The tribunal also concluded that the Commission's decision was supported by the evidence and that no procedural errors were present in the handling of the claim. Consequently, the tribunal affirmed the decision of the Repatriation Commission.

The tribunal's decision was final, with no further appeal possible. The tribunal affirmed the Repatriation Commission's decision, which meant that Mrs MacGregor's claim for a pension following her husband's death was denied.

Orders

Orders of the court

The Tribunal affirms the decision of the Repatriation Commission made on 19 September 2005 refusing Mrs MacGregor’s claim for a pension because of the death of her husband.

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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VETERANS' AFFAIRS DIVISION		)
Re		DAPHNE MACGREGOR (deceased)