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Re Reading and Repatriation Commission

Re Reading and Repatriation Commission

Case [2000] AATA 841 20 September 2000

Jurisdiction

Statements of Principle

Standard of Proof

Consistency with Applicable Law

Administrative Law

Veterans' Law

Type to search within this case.

CATCHWORDS – REPATRIATION COMMISSION – widow's pension – whether smoking levels consistent with statement of principles (SoP) requirements – which SoP to apply – consideration of in what circumstances rights accrue – application of earlier less beneficial SoP - decision affirmed.

Veterans' Entitlements Act 1986 – Ss 5AB, 6, 7, 8, 13, 120, 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
Deledio v Repatriation Commission (1997) 47 ALD 261; (1997) 25 AAR 396
Gartrell v Repatriation Commission [2000] FCA 1228 (Whitlam, Lindgren and Gyles JJ)
Ogston and Repatriation Commission, unreported, 1 April, 1999, NG 773 of 1998)
Re Ogston and Repatriation Commission (1998) 27 AAR 176
Re Zoarder and Secretary, Department of Social Security (1998) 26 AAR 342
Repatriation Commission v Deledio (1998) 27 AAR 144; (1998) 49 ALD 193
Repatriation Commission v Keeley (2000) 31 AAR 150, Lee, Cooper and Kiefel JJ)

DECISION AND REASONS FOR DECISION [2000] AATA 841

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q1999/91
VETERANS' APPEALS DIVISION  )

Re MAURINE LILITH READING

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss S A Forgie (Deputy President)
Captain E T Keane (Member)

Date 20 September, 2000

Place Brisbane

DecisionThe Tribunal affirms the decision of the respondent dated 2 November, 1995 and affirmed by a decision of the Veterans'
Review Board dated 6 November, 1998.
S A FORGIE
Deputy President

REASONS FOR DECISION

On 14 January, 1999, the applicant, Mrs Maurine Lilith Reading, applied for review of a decision of a delegate of the respondent, the Repatriation Commission ("Commission") dated 2 November, 1995. That decision, which was affirmed by a decision of the Veterans' Review Board ("VRB") on 6 November, 1998, refused to grant Mrs Reading a widow's pension. The Commission's delegate and the VRB refused to do so on the basis that the death of her husband, Mr William George Reading, was not war-caused within the meaning of the Veterans' Entitlements Act 1986 ("the Act").

At the hearing, Mrs Reading was represented by her solicitor, Mr Harding, and the Commission by its advocate, Mr Williams. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with an opinion dated 23 September, 1999 by Dr Peter Grant, a report by Dr Marshall dated 19 August, 1970, reports dated 12 and 13 July, 1994 by Dr David Colquhoun, a report dated 11 July, 1994 by Dr John Wicks, a report dated 5 February, 1999 by Dr Peter Lewis, a report from the Diabetes clinic dated 28 July, 1982 and a medical history sheet dated 10 July, 1970. Oral evidence was given by Mrs Reading in support of her case together with her nephew, Mr Lindsay Wilken.

THE ISSUE

The issue in this case is whether…

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 Re Reading and Repatriation Commission

Details

AGLC: Re Reading and Repatriation Commission [2000] AATA 841
Case: [2000] AATA 841
Decision Date: 20 September 2000

CaseChat Overview and Summary

This case involved a widow's pension application by Mrs Maurine Lilith Reading, following the death of her husband, Mr William George Reading, who had served in the Australian Defence Force during World War II. The Repatriation Commission, now known as the Department of Veterans' Affairs, had previously denied Mrs Reading's application for a pension on the basis that Mr Reading's death was not war-caused, as defined in the Veterans' Entitlements Act 1986 (the Act). Mrs Reading appealed the Commission's decision, which was subsequently affirmed by the Veterans' Review Board. The Administrative Appeals Tribunal (AAT) was tasked with reviewing the Commission's decision and determining whether Mr Reading's death was war-caused.

The primary legal issue before the AAT was whether the death of Mr Reading was war-caused, as defined by the Act, and if so, whether it was due to his operational service during World War II. The hypothesis proposed on behalf of Mrs Reading was that Mr Reading's increased smoking during the war led to his suffering from diabetes mellitus, which in turn caused his ischaemic heart disease and ultimately led to his death.

The AAT examined the relevant legislation, case law, and Statements of Principles (SoPs) that applied to the case. The AAT found that Mr Reading's death was not war-caused, as the hypothesis proposed on behalf of Mrs Reading was not consistent with the applicable SoPs. The SoPs in force at the time of the Commission's decision, SoP 85 and SoP 174, required Mr Reading to have smoked at least 10 cigarettes per day for at least 20 years, a requirement that was not met based on the available evidence. The SoPs that were in force at the time of the AAT hearing, SoP 38 and SoP 82, had less stringent requirements, but the AAT held that they did not indicate an intention to displace the earlier SoPs. Therefore, the hypothesis proposed on behalf of Mrs Reading could not be considered reasonable, and the AAT affirmed the Commission's decision to deny Mrs Reading's application for a pension.

Orders