Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 81
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2006/129
VETERANS' APPEALS DIVISION ) Re JUDITH McKENZIE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S. Webb, Member Date14 March 2007
PlaceCanberra
Decision The decision under review is set aside and in place thereof the Tribunal decides that Ian McKenzie's death was war caused.
..............................................
Mr S. Webb, Member
CATCHWORDS
VETERANS’ ENTITLEMENTS - Death of veteran - Kind of death - Real or operative cause of death – Reasonable satisfaction – Statement of principles – Hypertension – Reasonable hypothesis not disproved – Decision set aside.
Veterans' Entitlements Act 1986 ss 6A, 8, 9, 13, 120, 120A
Statement of Principles concerning Hypertension Instrument No. 35 of 2003, as amended by Instrument No. 3 of 2004
Bull v Repatriation Commission (2001) 188 ALR 756; [2001] FCA 1834
Spencer v Repatriation Commission (2002) 118 FCR 453; (2003) 34 AAR 379; [2002] FCA 229
Woodward v Repatriation Commission [2003] FCAFC 160
Gerzina v Repatriation Commission [2004] FCAFC 96
Byrnes v Repatriation Commission (1993) 177 CLR 564; [1993] HCA 51
Hayes v Repatriation Commission [2005] FMCA 125
Repatriation Commission v Towns (2003) 38 AAR 77; [2003] FCA 1262
Treloar v Austalian Telecommunications Commission (1990) 26 FCR 316; (1990) 97 ALR 321
Re Martyn and Repatriation Commission [2006] AATA 895
Repatriation Commission v Hancock (2003) 37 AAR 387; [2003] FCA 711
REASONS FOR DECISION
14 March 2007 Mr S. Webb, Member 1. Judith McKenzie is the widow of Ian McKenzie, a veteran with World War Two operational service. Mrs McKenzie made a claim for pension following the death of her husband For that claim to succeed the death of her husband must be war-caused. Successive decision makers, including the Veterans’ Review Board, have determined that the death was not war-caused. Mrs McKenzie is unhappy with this outcome.
2. The issue for the Tribunal to determine is whether or not Mr McKenzie’s death was attributable to his war service. His Honour Justice Selway set out the correct approach to be adopted by the Tribunal in cases such as this in Repatriation Commission v Hancock [2003] FCA 711 at paragraph 11. Thus it is first necessary to determine the preconditions for a claim, other than causation. The standard of proof is the reasonable satisfaction standard, on the balance of probabilities.[1] There is no dispute and I find that:
(a)Mr McKenzie died on 17 March 2005.
(b)Mrs McKenzie is his widow.
(c)Mr McKenzie had operational service within the meaning of that term pursuant to section 6A of the Veterans’ Entitlements Act 1986 (Cth) from 11 September 1940 to 2 January 1949. The total period of his service was from 11 September 1940 to 31 July 1956.
[1] Subsection 120(4).
3. It is not disputed that the Commission previously accepted that Mr McKenzie’s essential hypertension, chronic blepharo-conjunctivitis and pityriasis capitis were due to his service.
4. The next step, applying the same reasonable satisfaction standard, is…
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CaseChat Overview and Summary
The primary legal issue before the court was whether the Tribunal had correctly applied the Veterans' Entitlements Act 1986 when deciding that Mr McKenzie's death was not attributable to his war service. Specifically, the court needed to assess whether the Tribunal had erred in its application of the concept of 'real or operative cause of death' and whether it had reasonably satisfied itself that the veteran's death was not war caused. The court also had to consider whether the Tribunal had appropriately applied the Statement of Principles concerning Hypertension and whether the decision to set aside the Tribunal's original decision was warranted.
The court held that the Tribunal had erred in its interpretation of the legislative provisions and the applicable case law. It found that the Tribunal had failed to properly apply the principle of reasonable satisfaction and had not adequately considered the Statement of Principles concerning Hypertension. The court noted that the Tribunal had not sufficiently weighed the evidence and had not reached a decision that was consistent with the relevant legislative framework. As a result, the court set aside the Tribunal's decision and remitted the matter back to the Tribunal for redetermination.
In light of the court's findings, the Tribunal was directed to reconsider the matter and determine whether Mr McKenzie's death was war caused, taking into account the correct application of the legislative provisions and the Statement of Principles. The court's decision emphasised the importance of proper legal reasoning and the need for tribunals to meticulously apply the law when making determinations that affect veterans' entitlements.
Orders
Orders of the court
The decision under review is set aside and in place thereof the Tribunal decides that Ian McKenzie's death was war caused.
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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