QUINN and REPATRIATION COMMISSION - [2011] AATA 557

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 557
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1541

VETERANS' APPEALS DIVISION )

Re THELMA QUINN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President D G Jarvis
Professor P Reilly AO, Member
Date16 August 2011
PlaceAdelaide

Decision
The decision under review is affirmed.

D G Jarvis
... [Signed] ...
Deputy President

CATCHWORDS
VETERANS' ENTITLEMENTS - Widow's claim - World War II veteran – veteran suffering from dementia - death of veteran following fall in aged care home - held that veteran engaged in eligible war service, not operational service - no material connecting smoking with war service - death of veteran not war-caused - decision under review affirmed.
Veterans’ Entitlements Act 1986 (Cth), ss 119, 120(4) and 120B(3)(a)
Collins v Repatriation Commission (2009) 177 FCR 280
Fenner v Repatriation Commission (2005) 218 ALR 122
Gorton v Repatriation Commission (2001) 65 ALD 609
Kaluza v Repatriation Commission [2011] FCAFC 97
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Tuite (1993) 39 FCR 540
REASONS FOR DECISION

16 August 2011   Deputy President D G Jarvis

  Professor P Reilly AO, Member
1.      The applicant is the widow of the late Herbert Quinn deceased, a veteran who served in the Royal Australian Air Force (RAAF) from 1942 to 1946. The deceased died in 2009, aged 87 years.
2.      Mrs Quinn claimed a pension in her capacity as the widow of the deceased, on the basis that his service caused or contributed to his death. In answer to a question as to why she believed that the deceased’s service caused or contributed to his death, Mrs Quinn referred to smoking and adenocarcinoma. A delegate of the Repatriation Commission decided that the deceased’s death was not related to service, but to Alzheimer’s disease, and that the available evidence did not indicate that lung cancer had played a part in his death. She accordingly decided that a war-widow’s pension was not payable.
3.      Following a request for review, the Veterans’ Review Board (VRB) affirmed the delegate’s decision. Mrs Quinn then applied to this tribunal to review the Commission’s decision.
Issues before the Tribunal
4.      The principal issues before the tribunal are:
(a)      what was the cause of the deceased’s death; and
(b)      whether the deceased’s death was war-caused.
Background
5.      The following background facts are based on the documentary material before us, and on the evidence of Mrs Quinn’s daughter, Mrs Christine Mueller. The applicant, Mrs Quinn, is in a nursing home and was unable to give evidence. Except where otherwise indicated, the following facts are not in contention.
6.      The deceased served in the RAAF from 16 September 1942 to 29 March 1946. He was 20 years of age at the time when he commenced service. A copy of his record of service shows that all his postings were to locations within Australia, and also lists the dates of his postings. There was, however, a suggestion, to which we will refer…

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 QUINN and REPATRIATION COMMISSION

Details

AGLC: QUINN and REPATRIATION COMMISSION [2011] AATA 557
Case: [2011] AATA 557
Decision Date: 16 August 2011

CaseChat Overview and Summary

Quinn and Repatriation Commission was a case heard by the Federal Court of Australia, where the widow of a World War II veteran sought to claim certain benefits under the Veterans’ Entitlements Act 1986. The veteran, who suffered from dementia, died following a fall in an aged care home. The primary issue before the court was whether the veteran's service during the war qualified as eligible or operational service, and if his death was war-caused. Additionally, the court had to consider whether there was a material connection between the veteran's smoking habit and his war service, which could potentially impact his eligibility for benefits.

The court examined the definition of eligible war service and operational service under the Act, referencing previous cases such as Fenner v Repatriation Commission and Kaluza v Repatriation Commission. It found that the veteran's service did not meet the criteria for operational service, and there was no material connection between his smoking and his war service. The court also noted that the veteran's death was not caused by his war service, as required by the Act. In reaching its decision, the court applied a rigorous analysis of the evidence and relevant legal precedents.

Ultimately, the court affirmed the decision under review, concluding that the veteran did not engage in eligible war service and that his death was not war-caused. The widow's claim for benefits was therefore denied. The court's reasoning was based on the specific criteria outlined in the Veterans’ Entitlements Act and the applicable case law, which required a direct and material link between the veteran's service, his smoking habit, and his death. The decision underscores the importance of meeting the statutory requirements for eligibility in claims for veterans' benefits.

Orders

Orders of the court

The decision under review is affirmed.

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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16 August 2011	Deputy President D G Jarvis
Professor P Reilly AO, Member