Roscoe v Repatriation Commission [2003] FCA 1568

FEDERAL COURT OF AUSTRALIA

Roscoe v Repatriation Commission [2003] FCA 1568

VETERANS' ENTITLEMENTS – pension – death of veteran – whether war-caused – death from leiomyosarcoma – suggested connection to war service through veteran's smoking habit, acquired during that service – whether veteran rendered operational service – effect of short voyage outside Australia as part of journey to place of service in Australia – connection between cause of death and war service – whether reasonable hypothesis – application of Statements of Principles – whether Tribunal applied correct standard of satisfaction – Tribunal applied beyond reasonable doubt standard – whether should have applied balance of probabilities standard – whether error affected outcome of case

Administrative Appeals Tribunal Act 1975 (Cth) s 44(1) Veterans' Entitlements Act 1986 (Cth) ss 6A, 8, 13, 14, 19, 120, 120A, 120B

Repatriation Commission v Kohn (1989) 87 ALR 511 applied Repatriation Commission v Deledio (1998) 83 FCR 82 referred to Proctor v Repatriation Commission [1999] FCA 32 (1999) 54 ALD 343 applied MARY MURIEL ROSCOE v REPATRIATION COMMISSION V 571 of 2002 GRAY J 23 DECEMBER 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 571 of 2002

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: MARY MURIEL ROSCOE

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: GRAY J

DATE OF ORDER: 23 DECEMBER 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The applicant pay the respondent's costs of the proceeding. 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 V 571 of 2002

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL