Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 482
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/6297
VETERANS’ AFFAIRS DIVISION ) Re MARGERY JOYCE SWINDELLS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr Egon Fice, Senior Member
Miss E A Shanahan, MemberDate30 June 2010
PlaceMelbourne
Decision
The Tribunal affirms the decision under review.
(sgd) Egon Fice
Senior Member
VETERANS’ AFFAIRS – ischaemic heart disease – contribution to veteran’s death – kind of death – pathological changes leading to death - death caused by hypercalcaemia and progressive low grade lymphoma
Veterans’ Entitlement Act 1986 ss 7, 8, 13, 120, 120A, 196B
Collins v Repatriation Commission [2009] FCAFC 90
Doolette v Repatriation Commission (1990) 21 ALD 489
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock (2003) 37 AAR 383
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Law (1981) 147 CLR 635
REASONS FOR DECISION
30 June 2010 Mr Egon Fice, Senior Member
Miss E A Shanahan, Member1. Mrs Margery Joyce Swindells is the widow of Mr Keith Alex Swindells, who died on 25 December 2006. She lodged an application for a widow’s pension with the Department of Veterans’ Affairs (DVA) on 6 February 2007. Mr Swindells’ death was certified by Dr A Waldron, who listed the causes of death as hypercalcemia of six months duration; progressive low grade lymphoma of 10 months duration; and chronic lymphocytic leukaemia of 18 months duration. Mrs Swindells’ contended that underlying existing ischaemic heart disease, a condition which the DVA had accepted as being war-caused, contributed to her husband’s death.
2. Mr Swindells served in the Royal Australian Air Force (RAAF) from 27 January 1944 to 7 March 1945. His service constitutes eligible war service as that expression is defined in the Veterans’ Entitlements Act 1986 (the Act) because Mr Swindells served in the South West Pacific area. The Repatriation Commission (the Commission) accepted that the whole of Mr Swindells’ service was operational service.
3. On 4 April 2007 a delegate of the Commission determined that Mr Swindells’ death was not related to his war service and therefore a pension was not payable to Mrs Swindells. She sought a review of that decision by the Veterans’ Review Board (VRB). On 19 November 2007 the VRB affirmed the Commission’s decision. Mrs Swindells now seeks a review of the VRB decision by this Tribunal.
4. We are required to determine:
(a) the kind of death (cause of death) met by Mr Swindells; and
(b)whether Mr Swindells’ death was war-caused within the meaning of s 8 of the Act.
KIND OF DEATH
5. Where the death of a veteran was war-caused, the Commonwealth is, subject to the Act, liable to pay a pension by way of compensation to the dependants of the veteran in accordance with the Act (s 13). To be eligible to receive the pension Mrs Swindells must establish that her husband’s death was war-caused.
6. Section 8 of the Act provides that, for…
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- Case
- [2010] AATA 482
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the Repatriation Commission had appropriately assessed Ms Swindells' health condition and its impact on her eligibility for a disability pension. This required the Tribunal to consider the relevant legislative provisions and the evidence presented regarding Ms Swindells' medical condition. The Tribunal needed to ascertain if the Commission had erred in its application of the law or in its evaluation of the evidence.
The Tribunal reviewed the evidence and legal arguments presented by both parties. It examined the medical reports, testimonies, and other documentation submitted to determine if the Commission's decision was reasonable and supported by the evidence. The Tribunal found that the Commission had correctly applied the relevant provisions of the Repatriation Act and had reasonably assessed the evidence. Consequently, the Tribunal upheld the Commission's decision, affirming that the current pension amount was appropriate based on the available evidence.
Orders
Orders of the court
The Tribunal affirms the decision under review.
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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