Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Byrne v Repatriation Commission [2006] FCA 1667 VETERANS' AFFAIRS – hypothesis that veteran's death was contributed to by war-caused coronary artery disease – hypothesis disproved beyond reasonable doubt – Tribunal gave adequate reasons for drawing that conclusion – appeal dismissed Veterans' Entitlements Act 1986 (Cth) s 120 Byrne v Repatriation Commission [2006] AATA 416 affirmed Byrnes v Repatriation Commission (1993) 177 CLR 564cited Repatriation Commission v Deledio (1998) 83 FCR 82cited MARJORIE BYRNE v REPATRIATION COMMISSION NSD 1116 OF 2006
BENNETT J
5 December 2006
SYDNEY IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 1116 OF 2006
ON APPEAL FROM THE VETERANS' APPEAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MRS J KELLY (SENIOR MEMBER) AND DR J CAMPBELL (MEMBER)
BETWEEN: MARJORIE BYRNE
Applicant
AND: REPATRIATION COMMISSION
Respondent
JUDGE: BENNETT J
DATE OF ORDER: 5 December 2006
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. The application, being an appeal from the Administrative Appeals Tribunal, is dismissed. 2. The applicant is to pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 1116 OF 2006
ON APPEAL FROM THE VETERANS APPEAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MRS J KELLY (SENIOR MEMBER) AND DR J CAMPBELL (MEMBER)
BETWEEN: MARJORIE BYRNE
Applicant
AND: REPATRIATION COMMISSION
Respondent
JUDGE: BENNETT J
DATE: 5 December 2006
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 Eric Byrne served in the Australian Army between April 1942 and February 1946. His service was "operational service" within the meaning of the Veterans' Entitlements Act 1986 (Cth) ('the Act') and his widow applied for a war widow's pension pursuant to s 14 of the Act. Mr Byrne died in November 1962 when his boat overturned during a fishing trip on Tantangara Dam in the Snowy Mountains. 2 A coronial inquiry found that Mr Byrne had died in a 'tragic accident' and that the cause of his death was drowning. That conclusion was adopted by the Repatriation Commission, which refused Mrs Byrne's claim for a pension, upon being satisfied that the veteran's death was not service related. The Veterans' Review Board affirmed the Commission's decision, which was later affirmed by the Administrative Appeals Tribunal (Byrne v Repatriation Commission [2006] AATA 416). Mrs Byrne appeals the Tribunal's decision. 3 Mrs Byrne put to the Tribunal that her husband suffered from ischaemic heart disease ('IHD') and coronary artery disease ('CAD'), each said to be war-caused conditions. It was accepted by the Tribunal that Mr Byrne did suffer from CAD (at [66]). The issue in this appeal concerns the Tribunal's finding that it was satisfied beyond reasonable doubt that CAD was not a contributing factor to the death of Mr Byrne by drowning. Two grounds of appeal are pressed. The Tribunal's finding that it was not satisfied that Mr Byrne suffered from IHD is not challenged and those parts of the notice of appeal which refer to IHD are not pressed. It is convenient to deal with the second ground of appeal first.
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