MARGARET GUNTER and REPATRIATION COMMISSION - [2012] AATA 189

[2012] AATA 189

Division VETERANS' APPEALS DIVISION

File Number(s)

2011/2897

Re

MARGARET GUNTER

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal
The Hon R J Groom AO (Deputy President)

Date 2 April 2012

Place Hobart
The decision under review is affirmed.
[Sgd Hon R J Groom]
Deputy President
CATCHWORDS
VETERANS' ENTITLEMENTS - war widow's pension - veteran's death in 1996 - kind of death - metastatic carcinoma of the prostate - no hypothesis raised connecting cause of death to circumstances of veteran's operational service - Tribunal satisfied beyond reasonable doubt that veteran's death not war caused - decision under review affirmed
LEGISLATION
Veterans' Entitlement Act 1986, ss 8(1)(b), 13, 26, 120(1), (3) and (4)
CASES
Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408
Collins v Repatriation Commission [2011] AATA 888
Collins v Repatriation Commission [2009] FCAFC 90; (2009) 177 FCR 280
Repatriation Commission v Law (1980) 147 CLR 635
REASONS FOR DECISION
The Hon R J Groom AO (Deputy President)

On 14 May 2010 Mrs Gunter lodged a claim for a widow’s pension under the Veterans’ Entitlements Act 1986 (“the Act”).
The claim was refused by the Repatriation Commission and on review also by the Veterans’ Review Board (“VRB”). Mrs Gunter now asks this Tribunal to review the VRB decision made on 30 May 2011.
Mrs Gunter is the widow of the late Mr Thomas Gunter who died on 21 June 1996 at the age of 72 years. Mr Gunter rendered service in the Australian Army from 4 June 1942 to 5 February 1945. It is not in dispute in these proceedings that the whole of that period of service was “operational service” and “eligible war service” for the purposes of the Act.
Mrs Gunter contends that Mr Gunter’s death was “war caused” and therefore as the veteran’s widow she is entitled under the Act to receive a widow’s pension.
THE LEGISLATION
Section 13 of the Act provides that when the death of a veteran was “war-caused” the Commonwealth is liable to pay a pension “by way of compensation” to the dependants of the veteran. The term “dependants” includes the widow of the veteran.
Section 8(1)(b) of the Act relevantly provides that the death of a veteran shall be taken to have been “war-caused”:
“… if the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.”
There are unique provisions in the Act which facilitate proof of the relationship between a veteran’s death and his war service when the death is said to relate to operational service.
If a veteran’s death is related to operational service section 120(1) of the Act directs the decision maker to determine that the particular death was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
Section 120(3) of the Act provides as follows:
In applying subsection (1) or (2) in respect of the incapacity of a person…

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.

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Details

Case: [2012] AATA 189
Decision Date: 2 April 2012

CaseChat Overview and Summary

Margaret Gunter and the Repatriation Commission came before the court in a matter concerning a war widow's pension following the death of a veteran in 1996. The veteran had died from metastatic carcinoma of the prostate, and the issue at hand was whether this death could be considered war-caused. The applicant, Margaret Gunter, sought to establish a connection between the veteran's operational service and the cause of death, which would entitle her to a war widow's pension. The matter was reviewed and subsequently brought before the court for further determination.

The primary legal issue for the court to decide was whether there was sufficient evidence to connect the veteran's death to his operational service. The onus was on the applicant to raise a reasonable hypothesis linking the cause of death to the service, and then to prove it beyond reasonable doubt. The Tribunal had already found that no such hypothesis was raised, and that the evidence did not support a connection between the veteran's prostate cancer and his war service. The court was tasked with reviewing this decision and determining whether it was correct.

The court examined the evidence presented and the reasoning of the Tribunal, ultimately finding that the Tribunal's conclusion was sound. There was no evidence to support a hypothesis that the veteran's death was war-caused, and thus, the Tribunal was satisfied beyond reasonable doubt that the death was not related to his service. The court found no error in the Tribunal's decision and affirmed the original ruling. The applicant's appeal was dismissed, and the decision under review was upheld.

The final orders of the court were that the decision of the Tribunal, finding that the veteran's death was not war-caused, was affirmed. Margaret Gunter's application for a war widow's pension was denied, and the Repatriation Commission's decision was upheld. The court's decision was certified as an accurate copy of the reasons for the decision, signed by the Administrative Assistant and dated 2 April 2012. The hearing had taken place on 7 February 2012, with Mr Brian Warren representing the applicant and Mr Ken Rudge representing the respondent.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal is therefore satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of the veteran was war caused.DECISION The decision under review is affirmed.I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for decision herein of The Hon R J Groom AO (Deputy President)[Sgd R Hunt]Administrative AssistantDated 2 April 2012Date(s) of hearing 7 February 2012Advocate for the applicant Mr Brian Warren, Naval AssociationSolicitor for the respondent Mr Ken Rudge, Department of Veterans’ Affairs

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number(s)	2011/2897
Re	MARGARET GUNTER
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

Tribunal	The Hon R J Groom AO (Deputy President)
Date	2 April 2012
Place	Hobart