Defence and war - veterans - claim by widow of veteran for pension on grounds that death of husband was war-caused - whether the trial Judge assumed the onus of proof with respect to whether the veteran’s death was war-caused lay on the Repatriation Commission - whether the trial Judge correctly applied s 120(3) of the Veterans’ Entitlements Act 1986.
JUDGES: BEAUMONT, HILL AND O’CONNOR JJ PLACE: MELBOURNE DATE: 22 APRIL 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 612 of 1997
BETWEEN:
REPATRIATION COMMISSION APPELLANT
AND:
ENA MAVIS DELEDIO RESPONDENT
JUDGES:
BEAUMONT, HILL AND O'CONNOR JJ.
DATE OF ORDER:
22 APRIL 1998
WHERE MADE:
MELBOURNE
ORDERS:
Vary order 3 made at first instance by substituting the word “law” for the words “these reasons”.
Appeal otherwise dismissed, with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 612 of1997
BETWEEN:
REPATRIATION COMMISSION APPELLANT
AND:
ENA MAVIS DELEDIO RESPONDENT
JUDGES:
BEAUMONT, HILL AND O'CONNOR JJ.
DATE:
22 APRIL 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
THE COURT:
INTRODUCTION The Repatriation Commission (“the Commission”) appeals from orders made by a Judge of the Court (Heerey J) allowing an appeal by the respondent, Ena Mavis Deledio, the widow of a veteran, from a decision of the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal had affirmed decisions of the Veterans’ Review Board and the Commission rejecting claims by the respondent that the death of her husband, Ronald George Deledio (“the Veteran”), was “war-caused” within the meaning of s 8 of the Veterans’ Entitlements Act 1986 (“the 1986 Act”). Heerey J held that the Tribunal erred in law in its approach to the matter. His Honour set aside the Tribunal’s decision and remitted the matter to it for determination in accordance with his reasons (see Deledio v Repatriation Commission (1997) 47 ALD 261).
It was not disputed before the Tribunal that the deceased was a “veteran”, that he rendered service from 7 April 1942 to 7 January 1946, including operational service, that he was first diagnosed with carcinoma of the prostate in 1994 and that this condition was a cause of his death on 6 May 1994.
THE LEGISLATIVE SCHEME The scheme of the 1986 Act which, as we shall see, was supplemented by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (“the 1994 Amendments”) is as follows:
Where a claim for a pension in respect of the death of a veteran relates…
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 Repatriation Commission v Deledio
Sign in free to access the full text
Details
AGLC
Repatriation Commission v Deledio [1998] FCA 391
Case
[1998] FCA 391
Decision Date
CaseChat Overview and Summary
This case involves an appeal by the Repatriation Commission against a decision of Heerey J, who allowed an appeal by Ena Mavis Deledio, the widow of a veteran, from a decision of the Administrative Appeals Tribunal. The Tribunal had rejected the respondent’s claim that the death of her husband was “war-caused” within the meaning of s 8 of the Veterans’ Entitlements Act 1986. The Court held that the primary Judge did not err in law in his approach to the matter. The Court varied the order made at first instance by substituting the word “law” for the words “these reasons”. The appeal was otherwise dismissed, with costs.
The key legal issues in this case were whether the primary Judge correctly applied the relevant legislative provisions and whether the Tribunal had erred in law in its approach to the matter. The Court found that the primary Judge had correctly applied the relevant legislative provisions and that the Tribunal had erred in law in its approach to the matter.
The Court reasoned that the primary Judge had correctly applied the relevant legislative provisions by holding that the hypothesis advanced by the respondent was consistent with, and thus upheld by, the Statement of Principles. The hypothesis was not otherwise contrary to “proved” or “known” scientific facts or obviously fanciful, impossible, incredible etc., thereby satisfying s 120(3). The Tribunal was then required by s 120(1) to determine that the Veteran’s death was war-caused unless it was satisfied, beyond reasonable doubt, that one or more of the facts supporting the hypothesis was disproved or an inconsistent fact was proved. The Court also found that the Tribunal erred in law by placing the burden of proof upon the respondent.
The Court held that the primary Judge did not err in law in his approach to the matter. The Court varied the order made at first instance by substituting the word “law” for the words “these reasons”. The appeal was otherwise dismissed, with costs.