Tunks and Repatriation Commission - [2007] AATA 1416

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1416
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/0732

VETERANS’ APPEALS DIVISION )

Re VERONICA TUNKS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
   Senior Member M D Allen

   Dr S Toh, Member

Date                8 June 2007
PlaceSydney

Decision
The decision under review is AFFIRMED.

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

CATCHWORDS
VETERANS’ ENTITLEMENTS – whether the death of the Applicant’s husband was war-caused – veteran died as a result of cancer of the prostate – percentage increase of animal fat consumption purely speculative – Tribunal satisfied that the material does not raise a reasonable hypothesis connecting the veteran’s death with his operational service – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 – sections 5C, 6A, 120, 196B
CASE LAW
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock (2003) 37 AAR 383
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Dunn [2006] FCA 1703
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Bey (1997) 79 FCR 364
Mancini v Director of Public Prosecutions [1942] AC 1
REASONS FOR DECISION

8 June 2007 Senior Member M D Allen
Dr S Toh, Member

1.      The Applicant is the widow of Kenneth Vardon TUNKS deceased who died on 16 May 2002 from cancer of the prostate. The Applicant claims that the deceased’s cancer was caused by or attributable to his war-service.
2. There is no dispute that the deceased was a veteran who had operational service as those terms are defined in sections 5C and 6A of the Veterans’ Entitlements Act 1986 respectively.
3.      As the relevant events giving rise to the Applicant’s claim were alleged to have occurred whilst the deceased was on operational service, the standard of proof in this matter is that mandated by sub-sections 120(1) and (3) VEA.
4.      Sub-sections 120(1) and (3) VEA provide that the death of a veteran claimed to be war-caused shall be accepted as being so caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after a consideration of the whole of the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the death of the veteran with the circumstances of the service rendered by him. Pursuant to section 120A VEA, a hypothesis will not be a “reasonable hypothesis” unless it conforms to a so-called Statement of Principles (“SoP”) issued by the Repatriation Medical Authority.
5.      Sub-section 120(6) VEA provides that neither party to this review bears any onus of proof.
6.      The manner in which the Tribunal must approach its task where an SoP exists was set forth by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The so-called Deledio principles are now so well-known as to not require recapitulation…

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 [2007] AATA 1416
Case: [2007] AATA 1416
Decision Date: 8 June 2007

CaseChat Overview and Summary

The case of Tunks and the Repatriation Commission involved a dispute regarding whether the death of the applicant’s husband, a veteran, was caused by his operational service during the war. The applicant argued that the veteran's exposure to certain environmental factors during his service contributed to his death from prostate cancer. The matter was heard in the Federal Court of Australia. The central legal issue the court needed to determine was whether there was a sufficient connection between the veteran’s operational service and his death from prostate cancer, such that his death could be considered war-caused. This involved assessing the evidence presented regarding the veteran’s exposure to potential risk factors and whether these exposures could be reasonably connected to his subsequent illness and death.

The court examined the evidence and found that the increase in animal fat consumption during the veteran’s service was speculative and did not provide a reasonable hypothesis linking his death to his operational service. The Tribunal had previously determined that the material presented did not support a connection between the veteran’s service and his prostate cancer. The court agreed with the Tribunal’s findings, stating that the evidence did not establish a causal relationship between the veteran’s operational service and his death. The court concluded that the decision of the Tribunal to deny the claim was correct and affirmed the decision under review.

The final orders of the court were to affirm the decision of the Tribunal, which had denied the applicant's claim for war-caused death benefits. This decision underscores the necessity for a clear and reasonable connection between a veteran’s service and the cause of death in order to establish war-causation under the relevant legislation.

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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