Repatriation Commission v Green [2008] FCA 1614

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Green [2008] FCA 1614

REPATRIATION COMMISSION v MILAGROS GREEN VID 620 of 2006

RYAN J

30 OCTOBER 2008

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 620 of 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: REPATRIATION COMMISSION

Applicant

AND: MILAGROS GREEN

Respondent

JUDGE: RYAN J DATE OF ORDER: 30 OCTOBER 2008

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be allowed. 2. The decision of the Administrative Appeals Tribunal ("the Tribunal") of 8 May 2006 be set aside. 3. The respondent's application for review of the decision of the Veterans' Review Board of 18 January 2005 be remitted to the Tribunal differently constituted to be heard and determined according to law. 4. There be no order as to the costs of the appeal. 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 620 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: REPATRIATION COMMISSION

Applicant

AND: MILAGROS GREEN

Respondent

JUDGE: RYAN J

DATE: 30 OCTOBER 2008

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 By notice of appeal filed in this Court on 5 June 2006, the applicant ("the Commission") has appealed from a decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal ("the Tribunal") constituted by Mr Egon Fice, given on 8 May 2006 in Melbourne; see Milagros Green v Repatriation Commission [2006] AATA 397. By its decision, the Tribunal set aside the decision of the Commission, made under the Veterans' Entitlements Act 1986 ("the VE Act"), and substituted its own decision that the death of Wallace Henry Green ("the Veteran") had been war-caused. Further, the Tribunal remitted the matter to the Commission for the purpose of calculating the pension payable to Milagros Green, the respondent who is the Veteran's widow. 2 The Veteran was born on 20 August 1923. He enlisted in the Citizens' Military Force on 23 July 1942, was transferred to the Australian Imperial Force on 12 July 1943, and was discharged on 23 October 1945. The Veteran's service in the Citizens' Military Force and the Australian Imperial Force was operational service. 3 On 1 June 1948, the Veteran enlisted in the Royal Australian Air Force ("the RAAF") and had a further period of operational service in Japan and Korea between 1 March 1953 and 31 May 1954. The Veteran was an aircraftsman and his craft was that of an engine fitter. He was discharged from the RAAF on 23 October 1956. 4 The Veteran did not make an application to the Commission for a disability pension under Part II of the VE Act, and his application for a service age pension in 1983 was not granted as he was, at that time, resident in the Philippines. 5 On 14 May 1990, the Veteran married the respondent, who is a citizen of the Philippines. The Veteran died at 5.40am on 19 May 1992, and his death certificate records that the causes of his death were "cardio-respiratory arrest [secondary] to incised wound lateral aspect of neck, left". The manner of death was recorded as "suicide", and the post mortem certificate described an "incised wound 10cm x 4cm … completely cutting jugular vein and carotid artery." 6 On 6 February 2002, the respondent filed a claim in the Commission for a war widow's pension. In her application, the respondent stated that "stress or tension on duty aggravated by toxic pollution as an engine fitter, engineering battalion RAAF caused or contributed to the Veteran's death." In the claim form, the respondent stated that the Veteran had consulted a Dr Nesto Laigos of Paringao, Baung La Union, "several times", and that the doctor's telephone number was not known. 7 On 4 July 2002, a delegate of the Commission refused the respondent's claim, and, on 30 September 2002, the respondent sought review of the delegate's decision. On 16 November 2004, the Veterans' Review Board adjourned its hearing at the request of the respondent so that she could obtain further medical information. On 18 January 2005, the Veterans' Review Board resumed its hearing. The respondent was represented by an advocate from Legacy, and gave unsworn evidence. On 18 January 2005, the Veterans' Review Board affirmed the decision of the delegate of the Commission. 8 On 19 March 2005, the respondent applied to the Tribunal for a review of the delegate's decision. On 8 May 2006, the Tribunal set aside the decision of the delegate, finding that the Veteran's death had been war-caused.