Re Nora Ellis and Repatriation Commission - [2015] AATA 431

[2015] AATA 431

DivisionVETERANS’ APPEALS DIVISION

File Number 2012/4875
ReNora Ellis
APPLICANT

And Repatriation Commission
RESPONDENT

DECISION

Tribunal Deputy President S A Forgie
Date 19 June 2015
PlaceMelbourne

The Tribunal decides to:
1.set aside the decision of the respondent dated 21 February 2012 and affirmed by the Veterans’ Review Board on 26 September 2012; and
2.substitute a decision that the applicant’s death from hepatocellular carcinoma was war-caused within the meaning of the Veterans’ Entitlements Act 1986.

…[sgd] S A Forgie..
Deputy President

REASONS FOR DECISION

The late Mr Leslie Harold Ellis served in the Australian Army (Army) in Morotai and Japan during World War II. After his death, his widow, Mrs Nora Ellis, applied for a pension. The Repatriation Commission (Commission) refused Mrs Ellis’s application and the Veterans’ Review Board (VRB) affirmed that decision. On 26 June 2013, a differently constituted Tribunal also affirmed the decision.[1] On 11 August 2014, the Federal Court set the Tribunal’s decision aside and remitted the matter to be determined according to law.[2] It was agreed between the parties, that the only issue to be decided on remittal was whether Mr Ellis’s death was war-caused within the meaning of the Veterans’ Entitlements Act 1986 (VE Act). I agree and have decided that his death was war-caused.
[1] [2013] AATA 433
[2] [2014] FCA 847

BACKGROUND

The parties agreed on the facts that I set out in this section of my reasons. They are supported by the evidence in the material lodged in this matter. On that basis, I find that Mr Ellis’s service in the Army extended from 8 April 1942 until 11 June 1947. In view of that, he is taken to have rendered operational service within the meaning of s 6A of the VE Act. It follows that, under s 7(1)(a), Mr Ellis is also taken to have rendered eligible war service. Having rendered operational service, Mr Ellis is a veteran as that term is defined in s 5C(1).

On 5 March 1947, Mr Ellis suffered an injury to his right knee. It is described in one record as having occurred when he stepped from a transport vehicle while on duty in Japan.[3] It is also described as having occurred on 3 March 1947 while he was playing football[4] but the difference is of no consequence for it is noted that he was on duty in both descriptions. With regard to that injury, the Commission accepted that two conditions were war-caused. Those conditions were internal derangement of the right knee and secondary localised osteoarthritis of the right knee.
[3] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T3 at 10
[4] T documents; T3 at 6

The cause of Mr Ellis’s death was hepatocellular carcinoma (liver cancer), from which he suffered for one month and Type 2 diabetes mellitus and atrial fibrillation, both of which he had suffered for years. At the time, he was also suffering from Type 2 Diabetes or, as…

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.

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Details

Case: [2015] AATA 431
Decision Date: 19 June 2015

CaseChat Overview and Summary

The case involves Nora Ellis and the Repatriation Commission, where the central dispute is whether the death of Nora Ellis was caused by her war service, thus entitling her to certain veterans’ benefits under the Veterans’ Entitlements Act 1986. This case was heard and determined by the Administrative Appeals Tribunal. The Tribunal was tasked with deciding if the Repatriation Commission’s decision, which found that Nora Ellis’s death was not war-caused, was legally sound.

The primary legal issue before the Tribunal was whether the Repatriation Commission correctly applied the principles relevant to determining if a reasonable hypothesis existed that Nora Ellis’s death was war-caused. Specifically, the Tribunal needed to assess whether the Commission had properly considered all the material before it and correctly applied the relevant statutory and case law principles. The Tribunal also had to determine if the Commission’s decision was rational and supported by the evidence.

In its reasoning, the Tribunal found that the Repatriation Commission did not adequately consider all the evidence and the relevant principles in making its decision. The Tribunal held that the Commission failed to establish a reasonable hypothesis that Nora Ellis’s death from hepatocellular carcinoma was not war-caused. The Tribunal concluded that the evidence presented, including the medical records and expert opinions, supported a finding that there was a reasonable hypothesis that her death was war-caused. Consequently, the Tribunal set aside the Commission’s decision and substituted its own, finding that Nora Ellis’s death was indeed war-caused within the meaning of the Act.

The Tribunal’s final orders were to set aside the decision of the Repatriation Commission dated 21 February 2012 and affirmed by the Veterans’ Review Board on 26 September 2012. In its place, the Tribunal substituted a decision that Nora Ellis’s death from hepatocellular carcinoma was war-caused. This decision entitles Nora Ellis to the relevant veterans’ benefits under the Act.

Orders

Orders of the court

The Tribunal decides to:

1. set aside the decision of the respondent dated 21 February 2012 and affirmed by the Veterans’ Review Board on 26 September 2012; and

2. substitute a decision that the applicant’s death from hepatocellular carcinoma was war-caused within the meaning of the Veterans’ Entitlements Act 1986.

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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