Cross v Repatriation Commission [2013] FCA 229

Cross v Repatriation Commission [2013] FCA 229

The Tribunal expressly recognised the beneficial nature of the Act and the need to take into account difficulties caused by the passage of time and unavailable witnesses under s 119(1)(h). After allowing for those difficulties, it was still not reasonably satisfied to the standard required by s 120(4) that Mr Cross's smoking habit was war-caused. Section 119(1)(h) does not fill evidentiary gaps or lower the statutory standard of proof, so the Tribunal made no reviewable error and the application was dismissed.

Jurisdiction
Australia
Judgment Date
15 March 2013
Procedural Posture
Application for Judicial Review of a Decision of the Administrative Appeals Tribunal Under the Veterans' Entitlements Act 1986 (cth) / Application Dismissed
Outcome
Application dismissed.
Legal Topics
['appeal From Administrative Appeals Tribunal' "war Widow's Pension" 'war Caused Death' 'smoking Habit and War Service' 'standard of Proof' 'passage of Time and Availability of Witnesses']
['administrative Law' "veterans' Entitlements"] ['appeal From Administrative Appeals Tribunal' "war Widow's Pension" 'war Caused Death' 'smoking Habit and War Service' 'standard of Proof' 'passage of Time and Availability of Witnesses']

Case Brief

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Procedural Posture

Application for Judicial Review of a Decision of the Administrative Appeals Tribunal Under the Veterans' Entitlements Act 1986 (cth) / Application Dismissed

Legal Issues

  1. 1 ["Whether the Tribunal misapplied or misdirected itself as to the application of s 119(1)(h)(i) of the Veterans' Entitlements Act 1986 (Cth)." "Whether the Tribunal erred in concluding that it could not be reasonably satisfied that the connection between Mr Cross's smoking and service was more than temporal in nature."]

Ratio Decidendi

The Tribunal expressly recognised the beneficial nature of the Act and the need to take into account difficulties caused by the passage of time and unavailable witnesses under s 119(1)(h). After allowing for those difficulties, it was still not reasonably satisfied to the standard required by s 120(4) that Mr Cross's smoking habit was war-caused. Section 119(1)(h) does not fill evidentiary gaps or lower the statutory standard of proof, so the Tribunal made no reviewable error and the application was dismissed.

Court Disposition

Application dismissed.

Orders

  • ['The application be dismissed.']