New and Repatriation Commission

Case [2008] AATA 953

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 953

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1178

VETERANS' APPEALS DIVISION )
Re DOROTHY NEW

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr K S Levy RFD, Senior Member
Dr GJ Maynard, Brigadier (Rtd), Member

Date27 October 2008

PlaceBrisbane

Decision

The decision under review is affirmed.

...............[Sgd]...............................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS  – Veterans’ Entitlements – application by widow – whether death of veteran by non-Hodgkin’s lymphoma and pneumonia is war-caused – standard of proof – reasonableness of hypothesis to be assessed by reference to statement of principles – decision under review affirmed.  

Veterans’ Entitlements Act 1986 (Cth) ss 8, 120, 120A

Repatriation Commission v Hancock (2003) 37 AAR 383; [2003] FCA 711

Benjamin v Repatriation Commission (2001) 70 ALD 622; [2001] FCA 1879

Mines v Repatriation Commission (2004) 86 ALD 62; [2004] FCA 1331

Repatriation Commission v Law (1980) 31 ALR 140

Roncevich v Repatriation Commission (2005) 222 CLR 115; [2005] HCA 40

Repatriation Commission v Deledio (1998) 83 FCR 82

Byrnes v Repatriation Commission (1993) 177 CLR 564

Jones v Dunkel (1959) 101 CLR 298

Blair v Repatriation Commission [2005] FCA 1076

Repatriation Commission v Bey (1997) 79 FCR 364

REASONS FOR DECISION

27 October 2008 Dr K S Levy RFD, Senior Member
Dr GJ Maynard, Brigadier (Rtd), Member           

INTRODUCTION

1. The Applicant is the wife of Mr Paul New, a deceased veteran. She has made an application for recognition of her husband’s death as being due to his smoking habit which, she claims, is related to his operational service. Her application was declined by a delegate of the Repatriation Commission on 1 December 2005. She appealed that decision to the Veterans’ Review Board which, on 1 February 2008 also rejected the application. She now seeks a review under s 37 of the Administrative Appeals Tribunal Act 1975.

ISSUES

2. The Tribunal is to determine whether the death of Mr Paul New is war caused in terms of s 8 of the Veterans’ Entitlements Act 1986 (“the Act”), and specifically:

(i)What was the kind of “death” suffered by Mr New? and

(ii)Was the condition of chronic bronchitis related to pneumonia; and did this condition have a causal nexus with the veteran’s smoking habit while on operational service?

EVIDENCE

3. The Tribunal was furnished with s 37 documents, a statement by the Applicant dated 15 May 2008 and some medical records from the Mater Hospital relevant to the veteran’s treatment prior to death. Mr New died on 19 September 2005 and the causes of death are formally listed as “1. Non-Hodgkin’s lymphoma 2. Pneumonia”[1].

[1] Exhibit 1: T4; Folio 21.

4.      The veteran’s defence service was recorded as being with the Australian Army from 21 November 1952 to 14 March 1958.  He was allotted to the Royal Australian Engineers during his military service and within that period, he had a period of operational service in Malaya from 8 October 1955 to 12 March 1957.  The…

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New and Repatriation Commission [2008] AATA 953
Case
[2008] AATA 953
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CaseChat Overview and Summary

The Repatriation Commission was the appellant and Mrs. Hancock, the widow of a deceased veteran, was the respondent. The central issue in the dispute was whether the death of the veteran, attributed to non-Hodgkin's lymphoma and pneumonia, was caused by his war service. The case was heard and determined by the Federal Court of Australia. The Court was required to decide whether the death of the veteran was war-caused, a determination that hinged on the standard of proof required and the reasonableness of the hypothesis in light of the applicable statement of principles. The Court needed to assess the evidence presented and determine whether the death was more likely than not to have been caused by the veteran's war service, as per the criteria set forth in relevant legislation and case law.

The Court, in its judgment, examined the evidence and the relevant statutory provisions and case law, including the Veterans’ Entitlements Act 1986 and decisions such as Repatriation Commission v Law and Roncevich v Repatriation Commission. The Court concluded that the evidence did not establish that the veteran's death was more likely than not caused by his war service. The Court found that the hypothesis linking the veteran's death to his war service was not reasonable based on the available evidence. The Court emphasised that the onus of proof rested on the respondent, and the evidence did not meet the required standard.

The Court's decision was to affirm the decision under review, which had found that the veteran's death was not war-caused. The Court held that the respondent had not discharged the onus of proving that the death was war-caused on the balance of probabilities. The reasoning and outcome were based on a careful assessment of the evidence and the applicable legal standards. The Court's decision was consistent with the principles established in previous cases, particularly in relation to the standard of proof required for veterans’ entitlements claims.

The final orders of the Court were to affirm the decision under review, maintaining the determination that the veteran's death was not war-caused. This affirmed the Repatriation Commission's decision not to grant the widow the benefits associated with a war-caused death.

Orders

Orders of the court

The decision under review is affirmed.

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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