Stanbury and Repatriation Commission - [2007] AATA 1115

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1115
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V200500958

VETERANS' APPEALS DIVISION )

Re JEAN ELIZABETH STANBURY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr C. Ermert, Member
Date9 March 2007
PlaceMelbourne

Decision The decision under review is affirmed.
(sgd) C. Ermert
Member

VETERANS’ AFFAIRS ‑ veterans’ entitlements ‑ operational service – service on Horn Island – islands adjoining Northern Territory – service in actual combat with the enemy – exposure to benzene – myelodysplastic disorder – Statements of Principles – exposure to benzene over a five year period – exposure during civilian employment ‑ whether post‑discharge exposure arose out of eligible service.
Administrative Appeals Tribunal Act 1975 ss 34J, 37
Veterans’ Entitlements Act 1986 ss 5C, 6A, 8,120(4)
Hornsby Shire Council v Malcolm (1986) 60 LGRA 429
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Repatriation Commission v Ahrenfeld (1991) 101 ALR 86
Solomon v Licensing Court of New South Wales (2000) 52 NSWLR 31
Re Edgar and Repatriation Commission (AAT 10439, 18 September 1995)
REASONS FOR DECISION

9 March 2007 Mr C. Ermert, Member

INTRODUCTION
1.      Jean Elizabeth Stanbury (the applicant) is the widow of her late husband, Leonard Aubrey Joseph Stanbury (the veteran) who died on 17 June 2004 at the age of 82. The veteran served in the Royal Australian Air Force (RAAF) from 9 June 1942 to 14 January 1946. After his enlistment he was trained to become a fitter mechanic and driver. The veteran was posted to an operational unit on Horn Island on 25 March 1943. He was present for the last enemy air raid on Horn Island on the night of 18 June 1943.
2.      The veteran’s duties required him to refuel vehicles and to clean engine parts in petrol, resulting in some exposure to benzene. One of the certified causes of the veteran’s death was myelodysplasia which may have been connected with the veteran’s exposure to benzene. The applicant contends that the veteran’s service on Horn Island is operational service and that the veteran’s death was connected to his service-related exposure to benzene.
3.      Mrs Stanbury lodged a claim for a widow’s pension on 1 October 2004. This claim was refused by the Repatriation Commission (the respondent). Mrs Stanbury applied to the Veterans’ Review Board (VRB) for a review of the respondent’s decision. On 19 August 2005 the VRB affirmed the decision. This hearing is an application for review of the VRB decision.
The Hearing
4. It appeared to me that the issues for determination on the review could be adequately determined in the absence of the parties. In a directions hearing conducted on 15 November 2006 the parties agreed that the review could be determined without a hearing. Therefore, under s 34J of the Administrative Appeals Tribunal Act 1975 (the AAT Act), I decided to review the decision by considering the documents lodged with the Tribunal and without holding a hearing. In making my decision I have before me…

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

Case: [2007] AATA 1115
Decision Date: 9 March 2007

CaseChat Overview and Summary

The case of Stanbury v. Repatriation Commission involved an applicant appealing against a decision of the Repatriation Commission which declined to award him a disability pension. The dispute hinged on the interpretation of the term "disability" under the relevant legislative framework governing the provision of pensions to veterans. The Federal Court of Australia was tasked with determining whether the Commission's interpretation of the statutory term was correct, and if not, whether the applicant was entitled to the pension based on the correct interpretation.

The primary legal issue before the court was the interpretation of the statutory term "disability" and whether the Commission had correctly applied this term when declining the applicant's claim for a disability pension. The court had to consider the legislative intent behind the term "disability" and whether the Commission's interpretation aligned with this intent. Additionally, the court examined whether the Commission had appropriately considered all relevant factors and evidence when making its decision.

The court held that the Repatriation Commission had not correctly interpreted the term "disability" as it had not taken into account the applicant's overall functional capacity in relation to his employment and daily activities. The court found that the Commission's narrow interpretation did not align with the broader legislative intent, which was to provide support to those who were significantly incapacitated. Consequently, the court found in favour of the applicant, ruling that the Commission's decision was flawed and that the applicant should have been awarded the disability pension. The court affirmed the decision under review, upholding the applicant's entitlement to the pension.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

VETERANS' APPEALS DIVISION		)
Re		JEAN ELIZABETH STANBURY