Mychael and Repatriation Commission - [2003] AATA 1162

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 1162
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1456

VETERANS' APPEALS DIVISION )

Re Sylvia Mychael

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member
Date19 November 2003
PlaceSydney

Decision
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and in substitution therefor, the Tribunal decides that the death of the late veteran, Mr Vernon Mychael, is war-caused. Mrs Mychael is qualified to receive a War Widow’s Pension with effect from and including 10 May 1998.

..............................................
Ms S M Bullock
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – Whether Death of Veteran was War-Caused – Reasonable Hypothesis –Hypertension –Alcohol Dependence
LEGISLATION
Veterans’ Entitlements Act 1986 ss 8, 9, 119, 120, 120A
AUTHORITIES
Repatriation Commission v Gorton (2001) 110 FCR 321
Bull v Repatriation Commission (2001) 66 ALD 271
Connors v Repatriation Commission (2000) 59 ALD 61
Repatriation Commission v Hancock [2003] FCA 711
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Deledio (1998) 83 FCR 82
Mason v Repatriation Commission [2000] FCA 1409
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Gorton v Repatriation Commission (2001) 63 ALD 723
REASONS FOR DECISION

19 November 2003
  Ms S M Bullock, Senior Member

1.      This matter is a remittal from the Federal Court of Australia in relation to matter number N2000/1202. A decision by the Administrative Appeals Tribunal (“the Tribunal”), differently constituted, was made in relation to this matter on 27 June 2002. The Applicant, Mrs Sylvia Mychael, lodged an appeal to the Federal Court on 25 July 2002. On 23 August 2002, Whitlam J of the Federal Court of Australia ordered, by consent, that the appeal be allowed, that the decision of the Tribunal dated 27 June 2002 be set aside and that the matter to be remitted to the Tribunal for hearing and determination.
2.      The original application for review to the Tribunal by Mrs Sylvia Mychael was of a decision by the Repatriation Commission (“the Commission”) dated 12 August 1998 (T2), as affirmed by the Veterans’ Review Board (“the Board”) on 9 June 2000, that determined that the death of the Applicant’s late husband, Vernon Archibald Mychael, was not war-caused.
3.      A Hearing was held before the Tribunal in Sydney on 20 March 2003. Mrs Mychael was represented by Mr M Vincent of Counsel, and the Respondent, the Commission, was represented by Miss R Henderson of Counsel. Oral evidence was provided to the Tribunal by Mrs Mychael. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeal Tribunal Act 1975 (“T Documents”, T1-18) in addition to the following exhibits:

Exhibits

Description

Date

Exhibit A1

Applicant’s Statement of Facts and Contentions

17 October 2001

Exhibit A2

Statement of Mrs Sylvia Mychael and Annexures A-G

23 November 2000

Exhibit A3

Statement of Mrs Sylvia Mychael

15 October 2001

Exhibit A4

Statement of Annette Marion Mychael

23 November…

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 Mychael and Repatriation Commission

Details

AGLC: Mychael and Repatriation Commission [2003] AATA 1162
Case: [2003] AATA 1162
Decision Date: 19 November 2003

CaseChat Overview and Summary

The matter under consideration was an appeal against a decision of the Administrative Appeals Tribunal (AAT) which had dismissed an application for a War Widow’s Pension. The appellant, Mrs Mychael, sought a review of the AAT's determination that the death of her late husband, Mr Vernon Mychael, was not war-caused, thereby disqualifying her from receiving a War Widow’s Pension. The case was heard in the Federal Court of Australia.

The central legal issue revolved around whether the death of Mr Mychael was attributable to his war service, specifically if there was a reasonable hypothesis linking his hypertension and alcohol dependence to his service. The court had to assess whether the evidence presented was sufficient to establish a causal connection between Mr Mychael’s service and the conditions that ultimately led to his death.

The Federal Court, in examining the evidence, found that there was indeed a reasonable hypothesis that Mr Mychael’s hypertension and alcohol dependence were connected to his war service. The court considered the medical evidence and testimonies provided, which suggested that Mr Mychael’s exposure to traumatic events during his service had a significant impact on his health, leading to the conditions that caused his death. Based on this reasoning, the court concluded that the AAT’s decision was not supported by the evidence and set it aside, substituting it with a decision that Mr Mychael's death was war-caused. Consequently, Mrs Mychael was qualified to receive a War Widow’s Pension from the specified date.

In light of the findings, the court made an order setting aside the AAT's decision and substituting it with a determination that Mr Mychael's death was war-caused. Mrs Mychael was thus entitled to receive a War Widow’s Pension with effect from and including 10 May 1998.

Orders

Orders of the court

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and in substitution therefor, the Tribunal decides that the death of the late veteran, Mr Vernon Mychael, is war-caused. Mrs Mychael is qualified to receive a War Widow’s Pension with effect from and including 10 May 1998.

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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Exhibits	Description	Date
Exhibit A1	Applicant’s Statement of Facts and Contentions	17 October 2001
Exhibit A2	Statement of Mrs Sylvia Mychael and Annexures A-G	23 November 2000
Exhibit A3	Statement of Mrs Sylvia Mychael	15 October 2001
Exhibit A4	Statement of Annette Marion Mychael	23 November…