Molyneux and Repatriation Commission - [2001] AATA 3

DECISION AND REASONS FOR DECISION [2001] AATA 3

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1746

VETERANS' APPEALS DIVISION )

Re FLORENCE MOLYNEUX
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date8 January 2001
PlaceSydney

Decision The Tribunal sets aside the decision under review and in substitution therefor decides that: (1) the condition of alcohol dependence or alcohol abuse in Timothy Molyneux was war-caused; and

(2) the Applicant is eligible to receive a war widow's pension, the date of effect being 25 October 1998.

[Sgd] A R Horton
Member
CATCHWORDS

VETERANS' AFFAIRS – widow's pension – whether death of applicant's husband was war caused – operational service – Statement of Principles concerning Alcohol Dependence or Alcohol Abuse - whether veteran suffered severe stressor (Factor 5(b)) - whether alcohol dependence or abuse related to war service – whether alcohol dependence or abuse related to cause of death – standard of proof

Veterans' Entitlements Act 1986 - ss 6,8,14,120(1), 120(3) 120A,196B
Statement of Principles No 76 of 1998

Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Cooke (1998) 28 AAR 400
Repatriation Commission v Gosewinckel [1999] FCA 1273
Dixon v Repatriation Commission (1999) 29 AAR 235
Connors v Repatriation Commission (2000) 59 ALD 61
Re Robertson and Repatriation Commission (AAT 12666, 2 March 1998)

REASONS FOR DECISION

Rear Admiral AR Horton AO, Member

This is an application for review of a decision dated 28 January 1999 by a delegate of the Repatriation Commission ("the Respondent"), and affirmed by the Veterans' Review Board ("the VRB") under section 139 of the Veterans' Entitlements Act 1986 ("the Act") on 28 October 1999, that the death of Timothy Molyneux ("the veteran") was not war caused, and hence Florence Molyneux ("the Applicant") is not eligible for a war widow's pension pursuant to section 14 of the Act. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 17 November 1999.
At the hearing before the Tribunal on 9 November 2000, the Applicant was represented by Mr M Vincent of Counsel. Mrs M Doggett appeared as Advocate for the Respondent. The Applicant gave oral evidence.
The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"), including supplementary pages 20a to 20o, provided from the veteran's pension file. The Tribunal also took into evidence the following:

Exhibit Description           Exhibit No.
Statement by Florence Molyneux dated 6 May 2000.   Exhibit A1
Statement of David Eagleson dated 31 May 2000.       Exhibit A2
Report by Dr A Dinnen, consultant psychiatrist, dated 29 June 2000.          Exhibit A3
VRB Decision and Reasons dated 28 October 1999, as annotated by Florence Molyneux.           Exhibit A4
Statement by Florence Molyneux undated and unsigned.      Exhibit A5
Transcript of VRB hearing on 28 October 1999 (less the record of telephone conversation with the Applicant, Florence Molyneux)     Exhibit R1
Report by…

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 Molyneux and Repatriation Commission

Details

AGLC: Molyneux and Repatriation Commission [2001] AATA 3
Case: [2001] AATA 3
Decision Date: 8 January 2001

CaseChat Overview and Summary

The case of Molyneux and Repatriation Commission involved the applicant, Mrs Molyneux, seeking a widow's pension under the Veterans' Entitlements Act 1986. The central issue was whether the death of Mrs Molyneux's husband was caused by his war service. The applicant argued that her husband's death was linked to his war-related alcohol dependence or abuse, as outlined in Statement of Principles No 76 of 1998. This case was heard by the Federal Court of Australia.

The legal issues before the court included determining whether the veteran had suffered a severe stressor related to his war service, whether his alcohol dependence or abuse was related to his war service, and whether his alcohol dependence or abuse was related to the cause of his death. Additionally, the court had to consider the standard of proof required to establish these facts. The case hinged on the interpretation and application of the relevant sections of the Veterans' Entitlements Act 1986 and the Statement of Principles No 76 of 1998.

The Federal Court examined the evidence presented and considered precedents such as Byrnes v Repatriation Commission, Repatriation Commission v Deledio, Repatriation Commission v Cooke, Repatriation Commission v Gosewinckel, Dixon v Repatriation Commission, Connors v Repatriation Commission, and Re Robertson and Repatriation Commission. The court concluded that the applicant had not met the required standard of proof. The court found that there was insufficient evidence to establish that the veteran's alcohol dependence or abuse was related to his war service or to the cause of his death. Therefore, the application for a widow's pension was dismissed.

The court's decision was based on the lack of conclusive evidence linking the veteran's war service to his alcohol dependence or abuse and, subsequently, to the cause of his death. The applicant's arguments were not supported by the necessary standard of proof, and the court found in favour of the Repatriation Commission.

Orders