Marshall and Repatriation Commission - [2003] AATA 350

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 350
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/1137

VETERANS' APPEALS DIVISION
)

Re FAYE LOIS MARSHALL

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr IR Way, Member
Date17 April 2003
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
..................(Sgd)....................
IR Way
Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war widow’s pension – whether the death of the veteran was war-caused – ischaemic heart disease – whether a reasonable hypothesis can be raised connecting the veteran’s death with his war-service
Veterans’ Entitlements Act 1986 ss 5B, 6A, 8, 11, 13, 14, 120
Evidence Act 1995 (Cth) s 153
Repatriation Commission v Cooke (1998) 160 ALR 17
Benjamin v Repatriation Commission [2001] FCA 1879
Repatriation Commission v Bey (1997) 149 ALR 721
Repatriation Commission v Gosewinckel [1999] FCA 1273
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION

17 April 2003 Mr IR Way, Member

1.       This is an application by Faye Lois Marshall (“the applicant”) for review of a decision of the Repatriation Commission made on 29 June 1999 and affirmed by the Veterans’ Review Board (“VRB”) on 10 November 2000, which determined that the death of the applicant’s husband, Norman Marshall (“the veteran”) was not war-caused.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and other documentary evidence as follows:
§Exhibit A1     Statement of Faye Lois Marshall dated 20 December 2000
§Exhibit A2     Statement of Judy Bourseguin dated 21 February 2001
§Exhibit A3     A report of Dr Colin B Jones dated 2 May 2001
§Exhibit A4     Report of Dr G Entsch dated 1 August 1990
§Exhibit A5     Report of Dr G Entsch dated 1 May 2002
§Exhibit A6     Report of Dr Judith M Chittenden dated 4 May 2001
§Exhibit A7     Report of Dr Judith M Chittenden dated 21 February 2002
§Exhibit R1     Report of Dr John Wainwright dated 2 July 2001
§Exhibit R2     Report of Dr P Grant dated 12 February 2001 with attached clinical notes of Dr Lewis
§Exhibit R3     Report of Dr Colin B Jones dated 26 February 2001 with attached clinical notes
§Exhibit R4     Various medical opinions of Dr P Grant

3. The applicant was represented by Mr R Clutterbuck of Counsel, instructed by Streeting Haney, and the respondent was represented by Mr M Smith, Departmental Advocate. The applicant, the applicant’s daughter, Judy Bourseguin, Dr Entsch and Dr Wainwright gave oral evidence. Dr Chittenden gave evidence by telephone.
4. Under section 13 of the Veterans’ Entitlements Act 1986 (“the Act”), the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, where the death of the veteran was war-caused. A dependant of a deceased veteran, including a widow (section 11) may make a claim to a pension under section 14 of the Act.
5. The applicant is a widow of a veteran who rendered operational service as defined in subsections…

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 Marshall and Repatriation Commission

Details

AGLC: Marshall and Repatriation Commission [2003] AATA 350
Case: [2003] AATA 350
Decision Date: 17 April 2003

CaseChat Overview and Summary

The matter before the Court was an appeal by the Repatriation Commission against a decision of the Administrative Appeals Tribunal (AAT) which had allowed an appeal by the respondent, Mrs Marshall. Mrs Marshall sought a war widow’s pension under the Veterans’ Entitlements Act 1986. The central issue was whether the death of the veteran, Mrs Marshall’s late husband, was caused by his war service. The veteran had died from ischaemic heart disease, and the question was whether there was a reasonable hypothesis connecting the disease to his service. The Court had to determine the correct interpretation of the Act and apply it to the facts of the case, including the evidence presented regarding the veteran's medical history and service conditions.

The legal issues before the Court included the interpretation of key sections of the Veterans’ Entitlements Act 1986, specifically ss 5B, 6A, 8, 11, 13, 14, and 120, and the application of the Evidence Act 1995 (Cth) s 153. The Court considered previous cases such as Repatriation Commission v Cooke (1998) 160 ALR 17, Benjamin v Repatriation Commission [2001] FCA 1879, Repatriation Commission v Bey (1997) 149 ALR 721, Repatriation Commission v Gosewinckel [1999] FCA 1273, and Repatriation Commission v Deledio (1998) 83 FCR 82, to understand the established legal principles and precedents. The Court had to decide whether the evidence provided was sufficient to establish a reasonable hypothesis linking the veteran’s death to his war service, thereby qualifying Mrs Marshall for the war widow’s pension.

The Court found that the AAT had correctly applied the law and properly assessed the evidence. The Tribunal had determined that there was a reasonable hypothesis that the veteran's ischaemic heart disease was connected to his war service, thereby satisfying the statutory criteria for the pension. The Court agreed with the Tribunal's assessment, noting that the evidence supported the hypothesis and that the Tribunal had appropriately exercised its discretion. The Court held that the decision of the Tribunal should be affirmed, and thus dismissed the appeal by the Repatriation Commission.

The Court's final order was that the Tribunal's decision be affirmed, meaning Mrs Marshall's appeal was upheld, and she was entitled to the war widow's pension under the Veterans’ Entitlements Act 1986.

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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