Deledio, Ena Mavis v Repatriation Commission [1997] FCA 1047

FEDERAL COURT OF AUSTRALIA

DEFENCE AND WAR - operational service by veteran - death by prostate cancer - benefits claim by widow - hypothesis as to causation by fatty dietary habits acquired during Army service - 1994 amendments to Veterans' Entitlements Act 1986 (Cth) - whether onus of proof on claimant. Veterans' Entitlements Act 1986 (Cth) ss 120 (1) and (3), 120A, 120B, 196B(1) and (2)

East v Repatriation Commission (1987) 16 FCR 517 at 518-527. Repatriation Commission v O'Brien (1985) 155 CLR 422 Bushell v Repatriation Commission (1992) 175 CLR 408 Byrnes v Repatriation Commission (1993) 177 CLR 564. Repatriation Commission v Law (1981) 147 CLR 635 Repatriation Commission v Webb (1987) 76 ALR 131 Frye v United States 293 F 1013 (1923). Daubert v Merrell Dow Pharmaceuticals Inc 113 SCt 2786 (1993); VG300 of 1997

ENA MAVIS DELEDIO v REPATRIATION COMMISSION

HEEREY J 10 OCTOBER 1997 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG300 of 1997

BETWEEN: ENA MAVIS DELEDIO

Applicant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: HEEREY J

DATE OF ORDER: 10 october 1997

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The decision of the Administrative Appeals Tribunal given on 26 May 1997 be set aside.

3. The matter be remitted to the Tribunal for determination in accordance with these reasons.

4. The respondent pay the costs of the applicant, including reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG300 of 1997

BETWEEN: ENA MAVIS DELEDIO

Applicant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: HEEREY J

DATE: 10 october 1997