Tunks and Repatriation Commission - [2009] AATA 229

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 229
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2004/0732

VETERAN'S APPEALS DIVISION )

Re VERONICA TUNKS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen
Dr S Toh, Member
Date6 April 2009
PlaceSydney

Decision The Decision under review is AFFIRMED

.............[sgd].......................
M D Allen
Presiding Member

CATCHWORDS
Veterans Entitlements: Whether death of Applicant's husband was war-caused - Veteran died as a result of cancer of the prostate - alleged percentage increase of animal fat consumption inconsistent with deceased history of weight gain – pre-service dietary levels of animal fat speculative – Tribunal satisfied beyond reasonable doubt fact necessary to sustain hypothesis negatived beyond reasonable doubt.
LEGISLATION
Veterans Entitlements Act 1986. : Ss 5c, 6A, 120, 120A
CASE LAW
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Tuite (1993) 39 FCR 540
Tunks v Repatriation Commission [2008] FCA 521
REASONS FOR DECISION

Senior Member M D Allen
Dr S Toh, Member

1.               On 8 June 2007, the Administrative Appeals Tribunal (‘the AAT’) affirmed a decision by the Respondent that denied the Applicants claim for pension in respect of the allegedly war-caused death of her husband Kenneth Vardon Tunks, deceased. See Re Tunks and Repatriation Commission [2007] AATA 1416.
2.               That decision was set aside by the Federal Court (Madgwick J) and remitted to the Tribunal to be reheard. See Tunks v Repatriation Commission [2008] FCA 521.
3.               The matter came on for hearing before this Tribunal on 16 March 2009. At that hearing, the following matters were not in dispute and we find as facts:
i.The Applicant is the lawful widow of Kenneth Vardon Tunks, deceased, a “veteran” who had “operational service” as those terms are defined in sections 5C and 6A respectively of the Veterans Entitlement Act 1986 (‘the VE Act’).
ii.The deceased died on 16 May 2002, the “kind of death” suffered by the veteran being cancer of the prostate.
iii.The clinical onset of the deceased’s prostate cancer was in 1992.
iv.The Repatriation Medical Authority has, pursuant to sections 196B and 120A of the VE Act, issued a Statement of Principle (“SoP”) relating to “Malignant Neoplasm of the Prostate” (cancer of the prostate) the Instrument No. 28 of 2005.
v.The current Instrument, namely No. 28 of 2005, is more favourable to the Applicant than the Instrument in force at the time the Respondent made its initial decision in this matter (namely Instrument No. 84 of 1999).

4. The hypothesis put forward by the Applicant to link the death of the veteran with his war service was that although served a diet low in animal fat by his mother prior to his enlistment in the Navy during World War II, the veteran became habituated to eating fatty foods whilst in the Navy. This continued post service such that he met Factor 5(c) in Instrument No. 28 of 2005, namely “that of increasing animal fat consumption by at least 40% and to…

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 Tunks and Repatriation Commission

Details

AGLC: Tunks and Repatriation Commission [2009] AATA 229
Case: [2009] AATA 229
Decision Date: 6 April 2009

CaseChat Overview and Summary

The matter before the court involved Tunks, the applicant, and the Repatriation Commission. The dispute centred on whether the death of the applicant's husband was attributable to his service in the war. The deceased veteran had died as a result of prostate cancer. The primary legal issue for determination was whether the applicant could establish that her husband's cancer was war-caused. This required the court to assess the evidence presented regarding the alleged increase in animal fat consumption and its link to the development of prostate cancer.

The court examined the evidence regarding the deceased's dietary habits, specifically the alleged increase in animal fat consumption. The tribunal found that the evidence of a significant increase in animal fat consumption was inconsistent with the deceased's history of weight gain. Furthermore, the pre-service dietary levels of animal fat were considered speculative. The court was satisfied beyond reasonable doubt that the fact necessary to sustain the hypothesis of a war-caused increase in animal fat consumption was negated beyond reasonable doubt.

Consequently, the court upheld the decision of the tribunal. The applicant's claim that her husband's death was war-caused was rejected. The orders made by the court affirmed the decision under review, dismissing the applicant's appeal. The deceased's prostate cancer was not considered to be war-caused, and thus, the applicant was not entitled to the veterans' benefits she sought.

Orders

Orders of the court

The Decision under review is AFFIRMED

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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