Prendergast and Repatriation Commission

[2003] AATA 495

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 495

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No Q2000/252

VETERANS' APPEALS DIVISION		)
Re		CHRISTINE PRENDERGAST

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr IR Way, Member

Date30 May 2003 

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

...................(Sgd)......................

IR Way
  Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – war widow’s pension – whether veteran’s death was war-caused – ischaemic heart disease - whether reasonable hypothesis established – whether veteran was obese for a period of at least 2 years within the 15 years immediately before the clinical onset of ischaemic heart disease

Veterans’ Entitlements Act 1986 ss 5B, 6A, 8, 11, 13, 14, 119, 120, 120A

Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Cook (1998) 160 ALR 17
Benjamin v Repatriation Commission [2001] FCA 1879

REASONS FOR DECISION

30 May 2003  Mr IR Way, Member            

1.       This is an application by Christine Prendergast (“the applicant”) for review of a decision of the Repatriation Commission made on 25 May 1999 and affirmed by the Veterans’ Review Board (“VRB”) on 3 February 2000, which determined that the death of the applicant’s husband, Leonard Prendergast (“the veteran”), was not war-caused.

2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1–T6) and other documentary evidence as follows:

§Exhibit A1     Statement of Christine Elizabeth Prendergast dated 11 December 2001

§Exhibit A2     Supplementary Statement of Christine Elizabeth Prendergast dated 20 June 2002

§Exhibit A3     Report of Dr EG Galea dated 7 March 2002

§Exhibit A4     Operator’s Flying Log Book – LW Prendergast dated 13 October 1943

3.       The applicant was represented by Mr D O’Gorman of counsel, instructed by Gilshenan and Luton, and the respondent was represented by Mr M Smith, Departmental Advocate.  The applicant gave oral evidence.

4. Under section 13 of the Veterans’ Entitlements Act 1986 (“the Act”), the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, where the death of the veteran was war-caused. A dependant of a deceased veteran, including a widow (section 11), may make a claim to a pension under section 14 of the Act.

5.       The veteran was born on 10 November 1923 and served in the RAAF during World War II from 21 May 1942 to 6 November 1945.  During his service with the RAAF the veteran was engaged in various flights to New Guinea and as such the whole of his service is operational service. 

6. The applicant is a widow of a veteran who rendered operational service as defined in subsections 5B and 6A of the Act, namely continuous full-time service outside Australia during World War II.

7.        The veteran died on 26 January 1999, aged 75 years.  The cause of the veteran’s death is recorded in the veteran’s death certificate as circulatory collapse (hours) due to as a consequence of ischaemic heart disease (19 years). 

8.       At…