Norton and Repatriation Commission - [2011] AATA 195

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 195
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3016

VETERANS’ APPEALS DIVISION )

Re Lorraine Norton

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal J W Constance, Deputy President
Date24 March 2011
PlaceMelbourne

Decision
The decision of the Veterans’ Review Board made 9 June 2010 is affirmed.

.....(Sgd. J. W. Constance)............
Deputy President

VETERANS’ ENTITLEMENTS ACT 1986 – war widow’s pension – whether death was war caused – Deledio test – primary hepatocellular (liver) adenocarcinoma with bony metastases – issue previously decided by Administrative Appeals Tribunal – decision affirmed.
Administrative Appeals Tribunal Act (Cth) 1975 ss 25(4A) and 2A
Veterans’ Entitlements Act 1986 (Cth) s 8, 13(1), and 120
Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374
Re Norton v Repatriation Commission (2010) 115 ALD 187
Repatriation Commission v Deledio (1998) 49 ALD 193
REASONS FOR DECISION

24 March 2011   J W Constance, Deputy President

INTRODUCTION
1.      Mrs Norton is the widow of the late Mr Goodwin who served in Vietnam as a member of the Australian Army between April 1969 and March 1970
2.      Mrs Norton has applied for a war widow’s pension under the Veterans’ Entitlements Act 1986 (Cth). Her application was refused by the Repatriation Commission and this refusal has been affirmed by the Veterans’ Review Board. Mrs Norton now seeks a review of the Board’s decision by this Tribunal.
3.      I have decided to affirm the decision under review on the basis that the issue before the Tribunal in this application has been determined previously by the Tribunal and should not be re-agitated. My reasons for this conclusion follow.
THE ISSUE IN DISPUTE
4.      By agreement of the parties, on 28 January 2011 the Tribunal made the following direction:
Pursuant to s 25(4A) of the Administrative Appeals Tribunal Act 1975 the review of the decision under review is limited to a consideration of the issue of whether the death of the late Mr Perrin J Goodwin was war caused within Veterans’ Entitlements Act 1986…

FACTS
5.      The parties agreed that the relevant facts are contained in a number of documents which are set out in a second direction made by the Tribunal on 28 January 2011. I make the following findings of fact based on those documents. I am satisfied of the facts found on the balance of probabilities.
6.      The late Mr Goodwin was a member of the Australian Army from 1 May 1968 and 30 April 1970. He served in Vietnam from 2 April 1969 until 4 March 1970.
7.      Mr Goodwin died on 30 November 2006. On 22 December 2006 Mrs Norton, as executor of the estate of the late Mr Goodwin, applied to this Tribunal for a review of a decision of the Veterans’ Review Board which affirmed a decision of the Repatriation Commission rejecting his claim for acceptance of malignant neoplasm of the liver.
8.      On 2 January 2008 the Tribunal affirmed the decision of the…

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 Norton and Repatriation Commission

Details

AGLC: Norton and Repatriation Commission [2011] AATA 195
Case: [2011] AATA 195
Decision Date: 24 March 2011

CaseChat Overview and Summary

Norton applied for a war widow’s pension under the Veterans’ Entitlements Act 1986. She claimed the death of her husband, a deceased member of the Defence Force, was war caused. The Administrative Appeals Tribunal had previously found against her claim, a decision she appealed to the Veterans’ Review Board. The Board affirmed the Tribunal’s decision, which Norton further appealed to the Federal Court. The court needed to decide whether the Board’s decision was correct, focusing on whether the husband’s death was war caused under the Act.
The court examined the evidence and the application of the Deledio test to determine whether the deceased member’s death was caused by his service. The husband had been diagnosed with primary hepatocellular (liver) adenocarcinoma with bony metastases. The court assessed whether this condition was connected to his service and whether it was the primary cause of death. The court found that the Board had correctly applied the Deledio test and concluded that the husband’s death was not war caused.

The court affirmed the Board’s decision, finding no error in its application of the law or its assessment of the evidence. The court held that the Board had properly determined that the husband’s service did not contribute to his death. Consequently, Norton’s claim for a war widow’s pension was denied. The Federal Court upheld the Board’s decision, finding no basis to overturn it. The court’s decision was final, and Norton’s appeal was dismissed.

Orders

Orders of the court

The decision of the Veterans’ Review Board made 9 June 2010 is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.