Sands and Repatriation Commission

[2009] AATA 560

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 560

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0247

VETERANS'       APPEALS        DIVISION		)
Re		KATHLEEN JOY SANDS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Brigadier C. Ermert, Member

Dr R. McRae, Member

Date30 July 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

[sgd] C. Ermert

Brigadier C. Ermert, Member

VETERANS’ AFFAIRS ‑ operational service – death certificate for malignant neoplasm of the anal canal and ischaemic heart disease – kind of death – whether other factors contributed to kind of death – whether kind of death war-caused – whether material points to hypothesis – decision affirmed.

Veterans’ Entitlements Act 1986 ss 9, 120, 120A, 196B

Repatriation Commission v Hancock [2003] FCA 711

Repatriation v Codd (2007) 95 ALD 619

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

30 July 2009

Brigadier C. Ermert, Member

Dr R. McRae, Member

INTRODUCTION

1.      Gordon John Sands (the veteran), was born in 1919 and served in the Australian Army in World War II from December 1941 to December 1945.  As the veteran served outside Australia, the whole of his war-time service is operational service for the purposes of the Veterans’ Entitlement Act 1986 (the Act).  The veteran died on 28 September 2004 at the age of 85.  The cause of death was certified as metastatic bowel cancer and ischaemic heart disease.  At the time of his death the veteran had no war-caused disabilities for which the Repatriation Commission (the Commission) had accepted liability.

2.      On 22 May 2006 Mrs Kathleen Joy Sands, the veteran’s widow (the applicant), lodged a claim for widow’s pension.  The claim was refused by a delegate of the Commission.  That decision was reviewed by the Veterans’ Review Board (VRB) and affirmed on 28 November 2007.  The present matter is an application for review of the VRB decision. 

THE HEARING

3.      At the hearing Mrs Sands was represented by Mr D. De Marchi, solicitor of De Marchi and Associates.  The respondent was represented by Ms J. McCulloch of the Advocacy Section of the Department of Veterans’ Affairs.  For the applicant, the Tribunal heard evidence from Mrs Sands and Dr B. Collins, consultant forensic pathologist.  For the respondent, the Tribunal heard evidence from Professor J. Cade, principal specialist in intensive care at the Royal Melbourne Hospital, and Professor R. Fox, honorary consultant, Department of Clinical Haematology and Medical Oncology at the Royal Melbourne Hospital.

THE ISSUES

4.      The issues to be determined by the Tribunal are:

(a)the kind of death suffered by the veteran; and

(b)whether the veteran’s death was war-caused.

KIND OF DEATH

5.      The Tribunal’s first task is to determine, on the balance of probabilities, the kind of death suffered by the veteran.  In Repatriation Commission v Hancock [2003] FCA 711 (16 July 2003) Selway J laid out the process to be adopted (paragraph 11):

(a) First, the Tribunal was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had…