Polack and Repatriation Commission

[2009] AATA 65

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 65

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No V 200601158

VETERANS’ APPEALS  DIVISION		)
Re		GLADYS LILLIAN POLACK

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Regina Perton

Date4 February 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

VETERANS’ ENTITLEMENTS – widow’s pension – operational service – kind of death – malignant neoplasm of the prostate – bronchopneumonia – whether Statements of Principles met – decision under review affirmed.

Veterans’ Entitlements Act 1986 ss 8(1), 120(1) and (3), 120A

Repatriation Commission v Deledio (1998) 83 FCR 82

Tunks v Repatriation Commission [2008] FCA 521

REASONS FOR DECISION

4 February 2009 Regina Perton       

1.       John Reginald Polack died on 2 August 2004 after 59 years of marriage to Gladys Lillian Polack.  He was 85 years old.  Mr Polack served in the Australian Army from March 1941 to December 1945.  He served in the Northern Territory and New Guinea.  His service is treated as operational service for the purposes of the Veterans’ Entitlements Act 1986 (the Act).  The Repatriation Commission (the Commission) accepted that Mr Polack’s medical condition of bilateral sensorineural hearing loss was war-caused in June 1997.   The Commission had already accepted that Mr Polack’s malaria was war-caused in the 1940s.  Mr Polack did not seek recognition of any other medical condition as war-caused.  

2.       Mrs Polack lodged a claim for a widow’s pension on 29 September 2004 on the basis that her husband’s death from prostate cancer and pneumonia was war-caused.  A delegate of the Commission determined on 5 October 2004 that Mr Polack’s death was not related to his service.  On 1 February 2005 Mrs Polack lodged an application for review of the Commission’s decision with the Veterans’ Review Board (VRB).  On 14 November 2006 the VRB affirmed the Commission’s decision.  Mrs Polack lodged an application for review of the VRB decision with the Tribunal on 4 December 2006.

3.       In considering whether Mrs Polack is eligible for a war widow’s pension, the major issues for the Tribunal to consider are:

·What was Mr Polack’s kind of death?

·Are there any relevant Statements of Principles?

·Was Mr Polack’s death war-caused?

LEGISLATION

4. Section 8(1) of the Act provides:

Subject to this section …, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:

…

(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

…

5. Sections 120(1) and 120(3) of the Act are relevant to the determination as to whether the death of a veteran was war-caused. Section 120(1) of the Act provides that the veteran’s death will be war‑caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) of the Act provides that the Tribunal will be so satisfied if, after consideration of all the material before it,…