Shanahan and Repatriation Commission

[2007] AATA 2028

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2028

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2007/0508

VETERANS’ APPEALS DIVISION		)
Re		FLORENCE SHANAHAN

Applicant

And   REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr EK Christie, Member

Date10 December 2007  

Place Brisbane

Decision  The Tribunal affirms the decision under review.

..................[Sgd]............................

DR EK CHRISTIE  

MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – war widow’s pension – the veteran had operational service in the Royal Australian Navy – Statements of Principles – Haemochromatosis – Cirrhosis of the liver – Tribunal satisfied on the evidence that the veteran’s death was not war-caused – decision under review affirmed

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Veterans’ Entitlements Act 1986 (Cth) ss 119, 120

Jackman v Repatriation Commission [1997] FCA 564
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Stares (1996) 41 ALD 212 at 217
East v Repatriation Commission (1987) 74 ALR 518
Repatriation Commission v Bey (1997) 47 ALD 481
Bushell v Repatriation Commission (1992) 175 CLR 408
Connors v Repatriation Commission [2000] FCA 783
Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571
Critch v Repatriation Commission (1996) 43 ALD 574
Borrett v Repatriation Commission [2000] FCA 1829
Mason v Repatriation Commission [2000] FCA 1409

REASONS FOR DECISION

10 December 2007	Dr EK Christie Member
Introduction

1.      This is an application by Florence Shanahan to review a decision of the Veterans’ Review Board (“the VRB”) made on 30 November 2006.  The VRB decided that the death of her late husband, John Shanahan, was not war-caused.

2.      In reaching its decision, the VRB concluded, on the evidence before it, that it was “difficult for the Board to connect the veteran’s alcohol consumption with his operational service on the available evidence”.

3.      At the hearing, Muriel Shanahan was represented by Mr PB O’Neill of Counsel instructed by Files and Stibbe. The Repatriation Commission was represented by Mr M Smith, a Departmental Advocate.

4. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1) and the various documents tendered by the parties.

Facts

5.      The general facts were not in dispute and may be stated briefly.

·The late veteran served in the RAN for six years from 8 February 1951 to 22 May 1957;

·During this 6 year period, his operational service comprised a period of 18 months: 3/7/52 to 11/4/53 (Korean War, HMAS Condamine); 27/1 to 27/10/54 (Korean War, HMAS Arunta); and 21/9 to 28/9/56 (Malayan Emergency, HMAS Melbourne); and

·The late veteran passed away on 10 August 2005, aged 72.

6.      The causes of death, as certified on the Death Certificate (T4, Folio 2), were:

(a)Pneumonia

(b)Liver failure

(c)Haemochromatosis

7.      The  late veteran’s accepted and rejected disabilities were:

(a)Service-related disabilities:  Nil

(b)Non-Service-related Disabilities:  Death

Issues To Be Decided

8.      The primary issue to decide was whether the late Mr Shanahan’s death, was caused as a direct result of his operational service.

9.      Florence Shanahan…