Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 818
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N2000/896
VETERANS’ APPEALS DIVISION ) Re MARIE DOROTHY PARKES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr J D Campbell, MemberDate21 August 2003
PlaceSydney
Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision that the Applicant, Marie Dorothy Parkes, is entitled to pension pursuant to section 13 of the Veterans’ Entitlements Act 1986 consequent upon the death of Kenneth Charles Parkes as and from the 1 June 1999.
(Sgd) M D Allen
…..........................................…....
Presiding Member
CATCHWORDS
VETERAN’S ENTITLEMENTS – Widow’s claim - death from metastatic cancer – primary site unknown - hypothesis that primary site of the biliary system and that smoking is a risk factor for biliary cancer - hypothesis raised on material and raised facts not negatived - no applicable Statement of Principle.
Veterans’ Entitlements Act, 1986 ss 120 (1), (3) and (6); 120A
Spencer v. Repatriation Commission (2002) 118 FCR 453
Bushell v. Repatriation Commission (1992) 175 CLR 408
Byrnes v. Repatriation Commission (1993) 177 CLR 564
East v. Repatriation Commission (1987)16 FCR 517
Repatriation Commission v. Hancock [2003] FCA 711
Reg v. Malcherek and Reg v. Steel [1981] 1 WLR 690
Nicolia v. Commissioner for Railways (NSW) (1970) 45 ALJR 465
REASONS FOR DECISION
21 August 2003 Senior Member M D Allen
Dr J D Campbell, Member1. By application made the 13th June 2000, the Applicant sought review of a decision of the Respondent dated 6 September 1999, which held that the death of her late husband, Kenneth Charles Parkes, was not related to his war service.
2. The late Kenneth Charles Parkes was a veteran who served in the Australian Army during the period of the second world war including service in the British Commonwealth Occupation Forces in Japan. As such, he had operational service as that term is defined in section 6A Veterans’ Entitlements Act 1986 (“VEA Act”).
3. As the deceased veteran had operational service, the standard of proof in this matter is that prescribed by subsection 120 (1) and (3) of the VEA Act, namely that the Tribunal shall determine that the death of the deceased was war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall however be deemed to be so satisfied if, after a consideration of all of the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the death of the deceased with the circumstances of the service rendered by him.
4. Subsection 120 (6) of the VEA provides that neither party to this review bears any onus of proof.
5. The first matter to be determined by the Tribunal is the “kind of death” experienced by the veteran. Put another way, what must be determined is the real and operative cause…
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CaseChat Overview and Summary
The court was required to determine whether the hypothesis regarding the primary site of the cancer and the risk factor of smoking was sufficient to establish a causal link between the deceased's service and his death. The court also needed to assess if there was an applicable statement of principle under the Act that would support the applicant's claim.
The court held that the hypothesis regarding the primary site of the cancer and the risk factor of smoking was not negated by the evidence presented. Given that there was no applicable statement of principle, the court found that the hypothesis was sufficient to establish a causal link between the deceased's service and his death. Consequently, the decision of the Repatriation Commission was set aside, and the Tribunal substituted its decision, granting the applicant a pension under section 13 of the Veterans’ Entitlements Act 1986, effective from 1 June 1999.
Orders
Orders of the court
The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision that the Applicant, Marie Dorothy Parkes, is entitled to pension pursuant to section 13 of the Veterans’ Entitlements Act 1986 consequent upon the death of Kenneth Charles Parkes as and from the 1 June 1999.
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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