Repatriation Commission v Deledio, Ena Mavis [1998] FCA 391

FEDERAL COURT OF AUSTRALIA

Defence and war - veterans - claim by widow of veteran for pension on grounds that death of husband was war-caused - whether the trial Judge assumed the onus of proof with respect to whether the veteran's death was war-caused lay on the Repatriation Commission - whether the trial Judge correctly applied s 120(3) of the Veterans' Entitlements Act 1986. Veterans' Entitlements Act 1986 - ss 8, 120, 120A, 120B, 196B Bushell v Repatriation Commission (1992) 175 CLR 408 - cons. Byrnes v Repatriation Commission (1993) 177 CLR 564 - cons. Repatriation Commission v Bey (1997) 149 ALR 721 - dist. East v Repatriation Commission (1987) 16 FCR 517 - cons. McDonald v Director-General of Social Security (1984) 1 FCR 354 - appr. REPATRIATION COMMISSION V ENA MAVIS DELEDIO

VG 612 of 1997

JUDGES: BEAUMONT, HILL AND O'CONNOR JJ

PLACE: MELBOURNE

DATE: 22 APRIL 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 612 of 1997

BETWEEN: REPATRIATION COMMISSION

APPELLant

AND: ENA MAVIS DELEDIO

Respondent

JUDGES: BEAUMONT, HILL AND O'CONNOR JJ.

DATE OF ORDER: 22 APRIL 1998

WHERE MADE: MELBOURNE

ORDERS: 1. Vary order 3 made at first instance by substituting the word "law" for the words "these reasons". 2. Appeal otherwise dismissed, with 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 VG 612 of 1997

BETWEEN: REPATRIATION COMMISSION

AppELLant

AND: ENA MAVIS DELEDIO

Respondent

JUDGES: BEAUMONT, HILL AND O'CONNOR JJ.

DATE: 22 APRIL 1998

PLACE: MELBOURNE

REASONS FOR JUDGMENT THE COURT: INTRODUCTION The Repatriation Commission ("the Commission") appeals from orders made by a Judge of the Court (Heerey J) allowing an appeal by the respondent, Ena Mavis Deledio, the widow of a veteran, from a decision of the Administrative Appeals Tribunal ("the Tribunal"). The Tribunal had affirmed decisions of the Veterans' Review Board and the Commission rejecting claims by the respondent that the death of her husband, Ronald George Deledio ("the Veteran"), was "war-caused" within the meaning of s 8 of the Veterans' Entitlements Act 1986 ("the 1986 Act"). Heerey J held that the Tribunal erred in law in its approach to the matter. His Honour set aside the Tribunal's decision and remitted the matter to it for determination in accordance with his reasons (see Deledio v Repatriation Commission (1997) 47 ALD 261). It was not disputed before the Tribunal that the deceased was a "veteran", that he rendered service from 7 April 1942 to 7 January 1946, including operational service, that he was first diagnosed with carcinoma of the prostate in 1994 and that this condition was a cause of his death on 6 May 1994.