Scott and Repatriation Commission - [2000] AATA 328

DECISION AND REASONS FOR DECISION [2000] AATA 328

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1998/0465

VETERANS APPEALS DIVISION           )
           Re      BARBARA LOUISE BEHRENDORFF and ROGER STUART SCOTT as executors of the Will and Trustees of the estate of ALAN SCOTT
  Applicants
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr J. Handley, Senior Member
Dr C. Re, Member
Mr I. Campbell, Member

Date28 April 2000
PlaceMelbourne

Decision The decision under review is affirmed.

..…………………………..
Senior Member

Veterans' Entitlements: Deceased served in Middle East; whether smoked cigarettes or tobacco; whether any connection between service and smoking; whether Statement of Principles (ischaemic heart disease) satisfied; decision affirmed.

Veterans' Entitlements Act 1986 s126(1) s120(3)

Repatriation Commission v Stares 1996 41 ALD 212
Repatriation Commission v Webb (VG627 of 1997)
Bushell v Repatriation Commission 1992 109 ALR 30 at 34
East v Repatriation Commission 1987 74 ALR 518 at 533
Repatriation Commission v Deledio 1998 49 ALD 193

REASONS FOR DECISION

28 April 2000           Mr J. Handley, Senior Member
           Dr C. Re, Member
           Mr I. Campbell, Member

Legal representatives who appear before this Tribunal owe a special duty to clients who are veterans and widows of veterans. Their clients are often elderly and infirm and have been exposed to the horrors of war. Despite the passing of time the circumstances of service remain confronting and vivid.
It is therefore important for legal representatives to obtain comprehensive instructions with patience and sensitivity. This may involve visiting ill or infirm clients who are unable to attend professional offices. Historical records should be investigated thoroughly and if they are not provided by the respondent they should be sought, together with other documents and reports in support of veteran's applications.
Complying with Directions of the Tribunal with respect to the filing and lodging of documents is also expected, as is putting the Tribunal and Repatriation Commission on notice as to the hypothesis that will be advanced and the relevant Statements of Principles.
This duty of care is no more than that which is expected of legal representatives and is no more than appropriate professional conduct in advancing the rights of a veteran client.
Regrettably, this application disregards almost all of the above ethics and expectations. If it has been funded by Victorian Legal Aid, it has been an unjustified expenditure.
The Tribunal has sadly reached this conclusion because this was an application which should never have proceeded to hearing. Were it not for the applicant's solicitor apparently pursuing the application with some seriousness, a transcript of the proceedings could be the script for a black comedy.
The application under review was to challenge a decision of the Veterans' Review Board made on 23 March 1998, where it then affirmed decisions previously made by the respondent to reject anxiety disorder, ischaemic heart disease, and aortic stenosis as war-caused. The Veterans' Review Board also decided to affirm previous decisions to assess general rate pension at 40%. Mr De Marchi appeared on behalf of the applicants and Ms - appeared on…

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

AGLC: Scott and Repatriation Commission [2000] AATA 328
Case: [2000] AATA 328
Decision Date: 28 April 2000

CaseChat Overview and Summary

The case of Scott and Repatriation Commission involved a challenge by the executors of Alan Scott's will to a decision of the Veterans' Review Board, which had affirmed decisions to reject claims of anxiety disorder, ischaemic heart disease, and aortic stenosis as war-caused. The applicants were represented by Mr De Marchi, while Ms McCulloch appeared for the respondent. The application was lodged on 1 May 1998, but complications arose due to delays in establishing Mrs Scott as the legal personal representative. After the death of Mr Scott, his children, Barbara Louise Behrendorff and Roger Stuart Scott, became the claimants under the Veterans' Entitlements Act 1986.

The primary legal issue was whether there was sufficient evidence to establish a connection between Mr Scott's military service and his alleged smoking habit, which in turn was linked to ischaemic heart disease. The applicants argued that the deceased's service precipitated the commencement of a smoking habit, which was responsible for incapacity and entitled the estate to a 100% pension. However, the Tribunal found that the hypothesis was not supported by the evidence.

Mrs Scott's testimony was inconsistent and unreliable, and she was unable to provide specific details about her husband's smoking habits. The documentary evidence, including medical records and a questionnaire completed by Mr Scott, indicated that he was a non-smoker. Additionally, his children testified that he did not smoke. The Tribunal concluded that the hypothesis was not reasonable as it was not supported by any material that pointed to any raised facts. Consequently, the decision under review was affirmed, and the application was dismissed.

Orders