Margaret Julian and Repatriation Commission - [2012] AATA 426

[2012] AATA 426

Division	VETERANS' APPEALS DIVISION
File Number(s)	2011/4148
Re	Margaret Julian
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Mr S. Webb, Member
Date	6 July 2012
Place	Canberra

The decision under review is affirmed.

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

Mr S. Webb, Member

VETERANS’ ENTITLEMENTS – widow pension – death – disease from which the veteran died – medical causes of renal failure – atherosclerotic renovascular disease – hypertension a risk factor that may have contributed – not established that hypertension is a medical cause of the death – decision affirmed

Administrative Appeals Tribunal Act 1975 s 33

Judiciary Act 1903 s 55ZG
Veterans’ Entitlements Act 1986 ss 5D, 8, 68, 70, 119, 120, 120A, 120B, 196B

Australian Investments and Securities Commission v Hellicar & Ors [2012] HCA 17
Collins v Repatriation Commission [2009] FCAFC 90
Director-General of Social Security v Chaney (1980) 3 ALD 161
FVR (WA) Pty Ltd v Federal Commissioner of Taxation [2012] FCAFC 90
Hill v Repatriation Commission [2009] FCAFC 91
Re Julian and Repatriation Commission [2010] AATA 1026.
Re Magill and Repatriation Commission [2007] AATA 9
Melbourne Steamship Limited v Moorhead (1912) 15 CLR 333
Repatriation Commission v Hayes [1982] FCA 107
Repatriation Commission v Law (1980) 47 FLR 57
SCI Operations Pty Ltd & Anor v Commonwealth of Australia (1996) 69 FCR 346
Scott v Handley [1999] FCA 404
Re Shaw and Repatriation Commission [2005] AATA 354

Woodward v Repatriation Commission (2003) 131 FCR 473

Wodrow v Commonwealth of Australia [2003] FCA 403

Statement of Principles concerning Hypertension, Instrument No 35 of 2003 (as amended by Instrument No 3 of 2004 and by Statement of Principles concerning Hypertension No 11 of 2008)

Statement of Principles concerning Hypertension, Instrument No 36 of 2003 (as amended by Instrument No 4 of 2004 and by Statement of Principles concerning Hypertension No 12 of 2008)

Death From An Accepted Disability, Bruce Topperwien, Veterans’ Review Discussion Paper No 7, April 2000.

REASONS FOR DECISION

Mr S. Webb, Member

6 July 2012

Mr Harry Julian died in June 2008. His widow, Margaret, claimed a pension on the basis that her husband suffered from hypertension, a disability accepted by the Repatriation Commission, which contributed to his death. The Commission rejected her claim. The Veterans’ Review Board affirmed the decision and Mrs Julian applied for review.
The issue to be decided is whether Mrs Julian is entitled to a pension by way of compensation under the Veterans’ Entitlements Act 1986. For that purpose it is necessary to determine whether or not Mr Julian’s death was war-caused or defence-caused. That will be so, if the disease from which he died is a disease that has been determined to be war-caused[1] or defence-caused[2]. The sole issue pressed in these proceedings is whether hypertension is a disease from which Mr Julian died.
[1] Section 8(1)(f), Veterans’ Entitlements Act 1986.
[2] Section 70(5)(e).

Background

The following uncontroversial matters are established, on the balance of probabilities. Mr Julian served in the Royal Australian Navy with operational service…

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 426
Decision Date: 6 July 2012

CaseChat Overview and Summary

Margaret Julian, the widow of Mr Harry Julian, has sought a widow's pension from the Repatriation Commission, claiming that her husband's death was caused by hypertension, an accepted service-related disability. The Commission rejected the claim, as did the Veterans' Review Board. The decision of the Board is the subject of the review proceedings before the Administrative Appeals Tribunal. The sole issue to be determined is whether hypertension is a disease from which Mr Julian died. The decision under review is affirmed. It is not established to the reasonable satisfaction standard that hypertension is a disease from which Mr Julian died. The evidence establishes that Mr Julian died from progressive chronic renal failure caused by atherosclerotic renovascular disease, and that hypertension was a risk factor for the development of that disease. However, it is not established that hypertension was a disease from which Mr Julian died. The evidence does not establish to the reasonable satisfaction standard that hypertension contributed to the pathological changes that led to Mr Julian's death or that it played any real role in the medical causes of his death. The decision of the Veterans' Review Board is affirmed.

Orders