Winnin and Repatriation Commission - [2005] AATA 848

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 848
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/690

VETERANS’ APPEALS DIVISION
)

Re GLADYS WINNIN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms M J Carstairs, Member
Date2 September 2005
PlaceBrisbane

Decision
The Tribunal sets aside the decision under review and substitutes the decision that the death of William Thomas Winnin is war caused and the applicant is qualified for payment of pension with effect from 16 February 2002.

..................[Sgd].......................
M J Carstairs
Member

CATCHWORDS
VETERANS’ AFFAIRS – operational service – cause of death -ischaemic heart disease - cerebrovascular accident - ventricular fibrillation – obesity - inability to exercise.
Veterans’ Entitlements Act 1986 s8, s119(1)(h)s120, s120A
Doolette v Repatriation Commission (1990) 21 ALD 489
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock (2003) 37 AAR 383
Repatriation Commission v Bey (1997) 79 FCR 364.
Repatriation Commission v Hill (2002) 69 ALD 581
McKenna v Repatriation Commission (1999) 86 FCR 144
East v Repatriation Commission (1987) 74 ALR 518
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Law 31 ALR 140
REASONS FOR DECISION

2 September 2005 Ms M J Carstairs, Member

1.      This is an application by Mrs Gladys Winnin (the applicant) for review of a decision made by the Repatriation Commission (the respondent) on 17 May 2002 and affirmed by the Veterans’ Review Board (VRB) on 9 June 2004 to reject the applicant’s claim to have the death of her husband William Winnin (the veteran) accepted as due to his eligible war service.
2.      At the hearing the applicant was represented by Mr P O’Neill of counsel instructed by Files Stibbe & Associates, Solicitors. The respondent was represented by its advocate Mr B Williams.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) as well as exhibits marked A1 for the applicant and R1-R3 for the respondent.
BACKGROUND
4.      The applicant was born on 7 November 1920 and is now aged 84. The veteran was born on 1 September 1920. The applicant and the veteran married on 9 September 1944, on his return from nineteen months war service in New Guinea.
5.      The veteran served in the Royal Australian Air Force from 12 October 1942 to 10 February 1948 serving as a general hand and later as corporal-in-stores. His service constitutes eligible war service as defined in the Veterans’ Entitlement Act 1986 (the Act) and is operational service, based on his service in New Guinea from 9 April 1942 to 1 September 1944. This affects the standard of proof to be applied in determining the applicant’s claim.
6.      The veteran suffered from osteoarthritis - a condition for which the respondent accepted liability for pension. In 1976 he had a left hip replacement; in 1986 he had a right hip replacement; and in 1987 the left hip replacement was repeated (T4, p69).
7.      The veteran suffered an…

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 Winnin and Repatriation Commission

Details

AGLC: Winnin and Repatriation Commission [2005] AATA 848
Case: [2005] AATA 848
Decision Date: 2 September 2005

CaseChat Overview and Summary

The applicant, in this case, sought a review of a decision made by the Repatriation Commission regarding the death of William Thomas Winnin. The primary issue was whether Mr. Winnin's death was attributable to his war service and, if so, whether the applicant qualified for a pension. The case was heard in the Administrative Appeals Tribunal. The core legal questions involved interpreting the relevant sections of the Veterans' Entitlements Act 1986, specifically sections 8, 119(1)(h), 120, 120A, and determining if the condition that led to Mr. Winnin's death was connected to his service. The Tribunal needed to consider medical evidence, the nature of Mr. Winnin's service, and the applicable legislative provisions.

The Tribunal examined the medical evidence regarding Mr. Winnin's health and the factors contributing to his death, which included ischaemic heart disease, a cerebrovascular accident, and ventricular fibrillation. The Tribunal also considered the impact of Mr. Winnin's obesity and his inability to exercise, as well as the Commission's previous decisions on similar cases. The Tribunal found that the evidence supported a connection between Mr. Winnin's war service and the conditions that led to his death. The Tribunal concluded that the decision to deny the pension should be set aside and replaced with a decision that Mr. Winnin's death was war-caused, thus qualifying the applicant for pension benefits. The Tribunal found that the evidence presented sufficiently demonstrated the link between Mr. Winnin's service and the conditions leading to his death, in line with the applicable sections of the Act.

In light of the findings, the Tribunal ordered that the decision under review be set aside and replaced with a decision that Mr. Winnin's death was attributable to his war service, and that the applicant is entitled to pension benefits. The Tribunal's decision hinged on the interpretation of the relevant sections of the Veterans' Entitlements Act 1986 and the weight of the medical evidence presented. The Tribunal's ruling aligns with precedents set in previous cases, such as Doolette v Repatriation Commission, Repatriation Commission v Deledio, and Repatriation Commission v Bey, which similarly addressed the connection between service and conditions leading to death.

Orders

Orders of the court

The Tribunal sets aside the decision under review and substitutes the decision that the death of William Thomas Winnin is war caused and the applicant is qualified for payment of pension with effect from 16 February 2002.

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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