Parkes and Repatriation Commission

[2003] AATA 818

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, Member

Date21 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, Member

1.      By application made the 13^th 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…