Norris and Repatriation Commission - [2003] AATA 312

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 312
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/564

VETERANS' APPEALS DIVISION )

Re ROSALEEN EVELYN NORRIS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr E K Christie, Member
Date4 April 2003
PlaceBrisbane

Decision The decision under review is affirmed. This means the application by Rosaleen Evelyn Norris is unsuccessful.
(Sgd) Dr E K Christie
Member

CATCHWORDS
VETERANS' AFFAIRS - veteran's entitlements - war widow's pension - whether assumed fact reasonably open to be inferred from, pointed to, raised by and so permitted by the material - whether reasonable hypothesis - whether Statement of Principles satisfied - whether death war-caused
Veterans' Entitlements Act 1986 ss 8, 120, 120A
Briginshaw v Briginshaw (1938) 60 CLR 336
Mason v Repatriation Commission [2000] FCA 1409
Brew v Repatriation Commission (1999) 56 ALD 403
Repatriation Commission v Deledio (1998) 49 ALD 193
Connors v Repatriation Commission [2000] FCA 783
Byrnes v Repatriation Commission (1993) 177 CLR 564
McLean v Repatriation Commission [2001] FCA 1505
Caswell v Powell Duffryn Associated Collieries 3 [1939] All ER 722
Nicolia v The Commissioner for Railways, New South Wales (1970) 45 ALTR 465
Skolgarev v Australian Fisheries Management Authority (1995) 22 AAR 331
REASONS FOR DECISION

4 April 2003 Dr E K Christie, Member

1.      This is an application by Rosaleen Norris to review the decision of the Veterans’ Review Board made on 13 June 2001 in which the Board affirmed the decision of the Repatriation Commission that the death of her late husband, James Douglas Norris, was not war-caused.
2.      In its reasons for decision the Veterans’ Review Board concluded:
“20.     …Even if the veteran only began smoking from when the applicant met him in 1948 and continued only until 1955, he would have smoked 5.6 pack years. His son stated that he remembers his father smoking until 1964 or 1966 (see folio 58, section 137 Report) and thus the veteran’s consumption of tobacco was probably considerably more than the required 5 pack years.
21.      As to the onset of the veteran’s ischaemic heart disease, the veteran had a coronary bypass in 1973 (see Veterans’ Review Board decision, 24 January 1996) and his ischaemic heart disease had undoubtedly been present for some time before that. Mr Day contended that onset was possibly as early as 1971 (see folio 56). Thus the veteran might not have ceased smoking until less than 10 years before onset of his ischaemic heart disease. On the evidence, it is possible that the elements of factor 5(e)(ii) relating to quantity and to time of cessation, might both be met.
22.      The difficulty for the Board, however, was to determine when the veteran commenced smoking and whether his smoking was caused by his war service. There was simply no clear evidence of this crucial issue. Irrespective of her memory difficulties, the applicant did not meet the veteran until 1948, at least 18 months after he completed his war service. The Board noted that on…

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 Norris and Repatriation Commission

Details

AGLC: Norris and Repatriation Commission [2003] AATA 312
Case: [2003] AATA 312
Decision Date: 4 April 2003

CaseChat Overview and Summary

Rosaleen Evelyn Norris, the applicant, sought a war widow's pension from the Repatriation Commission, which was denied. The dispute was heard in the Federal Court of Australia. The central issue was whether the death of Norris' husband was reasonably attributable to his war service, thereby qualifying him for a war widow's pension. The court had to determine if the death was war-caused and whether the Statement of Principles, which outlines the criteria for such entitlements, was satisfied.

The court examined the burden of proof, which required the applicant to show on the balance of probabilities that the husband's death was caused by his war service. The court relied on previous cases such as Briginshaw v Briginshaw, which sets the standard for proof on the balance of probabilities, and other related cases. The evidence presented included medical records and statements from witnesses, but the court found that it did not reasonably support the inference that the husband's death was war-caused. The reasoning hinged on the lack of direct and sufficient evidence linking the death to war service.

In conclusion, the court affirmed the decision of the Repatriation Commission, finding that the applicant had not met the required standard of proof. The application for a war widow's pension was therefore unsuccessful. The decision underscores the necessity of substantial and credible evidence to establish a causal link between the veteran's service and the subsequent death for pension entitlements.

Orders

Orders of the court

The decision under review is affirmed. This means the application by Rosaleen Evelyn Norris is unsuccessful.

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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VETERANS' APPEALS DIVISION		)
Re		ROSALEEN EVELYN NORRIS