McCarthy and Repatriation Commission

Case [2003] AATA 719

Administrative

Appeals

Tribunal
 

DECISION AND REASONS FOR DECISION [2003] AATA 719

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/649

VETERANS' APPEALS  DIVISION )
Re MARIE MCCARTHY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr M E Thorpe, Member

Date31 July 2003

PlaceSydney

Decision

The Tribunal sets aside the decision under review and in its stead decides that the death of the veteran, Mr K. McCarthy, was war‑caused and that the Applicant is entitled to a war widow's pension with effect from 4 April 2001.

..............................................

Dr M E Thorpe   Member

CATCHWORDS

VETERANS' AFFAIRS - War Widow's pension – Adducing cause of death – Whether a Statement of Principles instrument allows for more than one kind of death

LEGISLATION

Veterans' Entitlement Act 1986 - section 8

Statement of Principles concerning Malignant Neoplasm of the Prostate, No 84 of 1999

AUTHORITIES

Repatriation Commission v Smith (1987) 15 FCR 327 at 335

Langley v Repatriation Commission (1993) 30 ALD 8 at 18

Doolette v Repatriation Commission (1990) 21 ALD 489 at 492

Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634

Etheridge v Repatriation Commission (1998) 51 ALD 175

Repatriation Commission v Bey (1997) 79 FCR 364

Byrnes v Repatriation Commission (1993) 177 CLR 564

Repatriation Commission  v Deledio (1998) 83 FCR 82

East v Repatriation Commission (1987) 16 FCR 517

Repatriation Commission v Bull (2001) 66 ALD 271

Bushell v Repatriation Commission (1992) 175 CLR 408

REASONS FOR DECISION

31 July 2003 Dr M E Thorpe, Member   

1.      This is an application to the Administrative Appeals Tribunal ("the Tribunal") by Mrs Marie McCarthy ("the Applicant") for the review of a decision of the Repatriation Commission dated 23 July 2001 which was affirmed by the Veterans' Review Board ("the VRB") on 28 March 2002, that Mr Keith McCarthy’s (the “Veteran”) death was not war-caused within the meaning of section 8 of the Veterans' Entitlement Act 1986 ("the Act"). 

2.      The Applicant gave oral evidence at the hearing in this matter in Sydney on 22 May 2003. Oral evidence was also given by Dr Burns, Respiratory Physician, and Dr Breslin, Thoracic Physician.  Mr Mark Vincent represented the Applicant and Mr Jim Marsh from the Department of Veterans' Affairs represented the Repatriation Commission (“the Respondent”).

3.      The following documents were placed in evidence before the Tribunal:

Exhibit

Description

Date

T1-T20
pp1-102

Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975

A1

Applicant's Statement of Facts and Contentions 

9 April 2003

A2

Report of Dr M Burn

2 December 2002

R1

Clinical Notes of Dr B Walsh (6 pages)

Various

R2

Clinical Notes of Dr AJ Darrack, Swansea Medical Centre (91 pages)

Various

R3

Report of Dr A B X Breslin, Consultant Thoracic Physician

21 February 2003

R4

Explanatory Notes (terminal event)

22 May 2003

R5

Respondent's Statement of Facts and Contentions  

29 April 2003

Additional component to T-Documents

findings of fact

4.      The Tribunal finds the following: 

·that the Applicant is a "dependant" of the deceased Veteran as defined…

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Details
AGLC
McCarthy and Repatriation Commission [2003] AATA 719
Case
[2003] AATA 719
Decision Date

CaseChat Overview and Summary

The case before the court involved the Applicant, seeking a war widow's pension following the death of her husband, Mr K. McCarthy. The dispute centred on the cause of Mr McCarthy's death and whether it was connected to his war service, which would entitle the Applicant to the pension. The matter was heard by the Administrative Appeals Tribunal (AAT).

The central legal issues before the court were whether the death of Mr McCarthy was attributable to his war service and if the Statement of Principles instrument permitted more than one kind of death to be considered in such circumstances. The Applicant argued that Mr McCarthy's death was war-caused, while the Repatriation Commission contended otherwise. The interpretation and application of the relevant legislation and the Statement of Principles were critical to resolving these issues.

In reaching its decision, the court meticulously examined the evidence provided and the provisions of the relevant legislation. It determined that Mr McCarthy's death was indeed war-caused, and thus, the Applicant was entitled to a war widow's pension. The court found that the Statement of Principles instrument allowed for multiple kinds of death to be considered when assessing the connection to war service. Consequently, the Tribunal set aside the decision under review and decided that the Applicant should receive the pension from 4 April 2001.

The final orders of the court mandated that the decision under review be set aside and replaced with a decision that Mr McCarthy's death was war-caused. The Applicant was to be granted a war widow's pension effective from 4 April 2001. This ruling provided clarity and resolution to the dispute, ensuring that the Applicant received the benefits to which she was legally entitled.

Orders

Orders of the court

The Tribunal sets aside the decision under review and in its stead decides that the death of the veteran, Mr K. McCarthy, was war‑caused and that the Applicant is entitled to a war widow's pension with effect from 4 April 2001.

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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