CATCHWORDS – REPATRIATION COMMISSION – widow's and veteran's pensions – fifty-three applications – whether malignant neoplasm of the prostate as suffered by each of the fifty-three veterans was war-caused within the meaning of the Veterans Entitlements Acts 1986 – which statements of principle (SoP) to apply – reference to principles to be applied in determining the applicable SoP in a particular application – Commission's decision to be reviewed on the basis of state of affairs at the time of its decision – SoPs 95 and 96 to apply.
[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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AGLC
Merrell & Ors and Repatriation Commission [2001] AATA 413
Case
[2001] AATA 413
Decision Date
CaseChat Overview and Summary
In Merrell & Ors v Repatriation Commission, the applicants sought review of decisions made by the Repatriation Commission, which had refused their claims for pensions based on the assertion that the veterans' prostate cancer was war-caused. The Tribunal was required to determine the Statements of Principles (SoP) to be applied in reviewing the decisions. The Tribunal found that the Commission's decisions in the forty eight applications based on operational service were to be reviewed based on SoP 95, which was in effect at the time of the Commission's decision. Similarly, the decisions in the five applications based on eligible war service were to be reviewed based on SoP 96, which was in effect at the time of the Commission's decision. The reasoning behind this decision was based on the Federal Court's interpretation of the relevant provisions of the Veterans' Entitlements Act 1986, which held that upon making a claim, an applicant does not accrue a right to have the claim determined according to the state of affairs prevailing at the time the claim is lodged, but does accrue a right to have the claim decided by the Commission. The Tribunal held that the accrued right is determined under the law as it stood when the right accrued, and that the fact a later SoP may be more beneficial to an applicant does not justify a departure from this principle.