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Peters and Repatriation Commission

Peters and Repatriation Commission

Case [2001] AATA 73 6 February 2001

Veterans' Entitlements Act 1986

Statements of Principle

Veterans' Law

Type to search within this case.

CATCHWORDS – VETERANS' AFFAIRS – whether death of veteran war-caused – whether reasonable hypothesis connecting death with war-service – whether consistent with statement of principle relating to substance abuse – whether reasonable – whether disproved beyond reasonable doubt – decision set aside.

Veterans' Entitlements Act 1986 – ss 5AB, 6A, 8, 13, 120, 120A, 196B,

Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) ALR 30; (1992) 66 ALJR 753; (1992) 29 ALD 1
Byrnes v Repatriation Commission (1993) 116 ALR 210; (1993) 117 CLR 564; (1993) 67 ALJR 805; (1993) 18 AAR 1; (1993) 30 ALD 1
Cooke v Repatriation Commission (1998) 160 ALR 17; (1998) 52 ALD 1; (1998) 28 AAR 400; (1998) 90 FCR 307
Cowie and Repatriation Commission [1999] AATA 334 (unreported, S A Forgie (Deputy President) Brigadier IRW Brumfield and Dr JB Morley (Members), 19 May, 1999)
Ferriday v Repatriation Commission (1996) 42 ALD 526; (1996) 24 AAR 29; (1996) 69 FCR 521; (1996) 150 ALR 67
Reading and Repatriation Commission [2000] AATA 841 (unreported, S A Forgie (Deputy President), Captain E T Keane (Member), 20 September, 2000,)
Deledio v Repatriation Commission (1998) 47 ALD 261; (1997) 25 AAR 396
Repatriation Commission v Deledio (1998) 27 AAR 144; (1998) 49 ALD 193
Repatriation Commission v Keeley (2000) 31 AAR 150; (2000) 98 FCR 108

DECISION AND REASONS FOR DECISION [2001] AATA 73

ADMINISTRATIVE APPEALS DIVISION        )
  )          D1999/12
GENERAL ADMINISTRATIVE DIVISION      )

Re FLORENCE AGNES PETERS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss S A Forgie (Deputy President)

Date 6 February, 2001

Place Brisbane

Decision The Tribunal:

1.sets aside the decision of the respondent dated 11 August, 1998 and affirmed by a decision of the Veterans' Review Board on 12 April, 1999; and

2.substitutes a decision that:

(1)the death of the applicant's husband, Terence James Peters, was war-caused within the meaning the Veterans' Entitlements Act 1986; and

(2)the respondent is liable to pay a pension to the applicant in accordance with s. 13(1) of the Veterans' Entitlements Act 1986 with effect from 3 May, 1998.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 25 May, 1999, the applicant, Mrs Florence Jean Peters, applied for review of a decision of a delegate of the respondent, the Repatriation Commission ("Commission"), dated 11 August, 1998. That decision, which refused Mrs Peters' claim for a widow pension, was later affirmed by a decision of the Veterans' Review Board ("VRB") made on 12 April, 1999.

At the hearing, Mrs Peters was represented by her solicitor, Mr Piper, and the Commission by its advocate, Mr Doube. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with additional material submitted by the Commission, Mrs Peters' affidavit, an extract from the Oxford Textbook of Medicine (3rd edition, edited by DJ Weatherall, JGG Ledingham and DA Warrell, 1996, Oxford University Press, Oxford, volume 3) relating to the management of…

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 Peters and Repatriation Commission

Details

AGLC: Peters and Repatriation Commission [2001] AATA 73
Case: [2001] AATA 73
Decision Date: 6 February 2001

CaseChat Overview and Summary

In this case, the applicant, Florence Agnes Peters, sought a review of a decision by the Repatriation Commission, which had previously been affirmed by the Veterans' Review Board, to deny her claim for a widow's pension. The Tribunal was required to determine whether the death of Florence's husband, Terence James Peters, was war-caused within the meaning of the Veterans' Entitlements Act 1986. The legal issues included whether a reasonable hypothesis connected Mr Peters' death with his war service, whether the hypothesis was consistent with the applicable Statements of Principle, and whether the hypothesis was disproven beyond reasonable doubt.

The Tribunal found that there was a causal connection between Mr Peters' death and his operational service in Korea, and that this connection was established on the balance of probabilities. The Tribunal concluded that there was material pointing to Mr Peters suffering from psychoactive substance abuse or dependence, which was consistent with Statement of Principle 5, and that his alcohol dependence arose out of, or was attributable to, his operational service. The Tribunal found that the hypothesis that Mr Peters' death arose out of, or was attributable to, his operational service was reasonable and not contrary to known or scientific facts. The Tribunal also found that the applicant's evidence was credible and that the hypothesis was not disproven beyond reasonable doubt. Therefore, the Tribunal decided that Mr Peters' death was war-caused within the meaning of the Veterans' Entitlements Act 1986, and that the respondent, the Repatriation Commission, was liable to pay a pension to the applicant, Florence Agnes Peters, in accordance with s. 13(1) of the Act, with effect from 3 May 1998.

The Tribunal set aside the decision of the Repatriation Commission and the Veterans' Review Board and substituted a decision that the death of Terence James Peters was war-caused within the meaning of the Veterans' Entitlements Act 1986, and that the respondent was liable to pay a pension to the applicant in accordance with s. 13(1) of the Act, with effect from 3 May 1998.

Orders