Andrewartha and Repatriation Commission - [2003] AATA 118

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 118
ADMINISTRATIVE APPEALS TRIBUNAL Nº N2001/1008
VETERANS’ APPEALS DIVISION

Re: JOHN ALBERT ANDREWARTHA
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:P.J. Lindsay, Senior Member, Dr M.E.C. Thorpe, Member, S. Webb, Member

Date: 7 February 2003
Place: Sydney
Decision:Decision under review affirmed.

(sgd) P. J. Lindsay
Senior Member

© Commonwealth of Australia (2003)

CATCHWORDS Veterans’ Affairs – whether irritable bowel syndrome war-caused –– decision affirmed
Veterans’ Entitlements Act 1986 – ss. 6, 119, 120(4), 120B, 196B
Repatriation Medical Authority Statement of Principles, Instrument No. 104 of 1996 concerning Irritable Bowel Syndrome.
Repatriation Commission v Smith (1987) 15 FCR 327
Brew v Repatriation Commission (1999) 94 FCR 80
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Tuite (1993) 39 FCR 540
Repatriation Commission v Keenan, Federal Court, 29 September 1989, G51/1989
REASONS FOR DECISION

P.J. Lindsay, Senior Member, Dr M.E.C. Thorpe, Member and S. Webb, Member

1.      This is an application under the Veterans’ Entitlements Act 1986 (the Act) for review of a decision by the Repatriation Commission (the Commission) which refused the claim by Mr Andrewartha (the Applicant) for acceptance of irritable bowel syndrome as a war-caused disease under the Act. The decision was affirmed by the Veterans’ Review Board.
2.      Mr P. Strain of Counsel appeared for the Applicant. The Commission was represented by Ms T. McConnell from the Department of Veterans’ Affairs. The Applicant gave evidence at the hearing. Dr Cook, a general surgeon, gave evidence on behalf of the Commission.
3. The Tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and also the exhibits tendered during the hearing.
background
4.      Born on 20 October 1917, the Applicant served in the Royal Australian Air Force (RAAF) from 6 May 1944 to 5 February 1946 (T3), which is a period of “eligible war service” as defined in s.7 of the Act. It was a period of continuous full-time service as a member of the Defence Force during World War II, but was not operational service. The Tribunal is required, therefore, to decide the matters raised in the Applicant’s application to its reasonable satisfaction: s.120(4) of the Act. As his claim for the pension was lodged after 1 June 1944, s.120B applies. In determining whether the Applicant’s irritable bowel syndrome was war-caused, s.120B(3) requires the Tribunal to be satisfied there is material that raises a connection between the disease and service, and that a Statement of Principles (SoP) issued by the Repatriation Medical Authority (RMA) upholds the contention that the disease is, on the balance of probabilities, connected with his service. The relevant SoP in force concerning irritable bowel syndrome is Instrument Number 104 of 1996. It states:
Basis for determining the factors
3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that irritable bowel syndrome can be related to relevant service rendered by veterans…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Andrewartha and Repatriation Commission

Details

AGLC: Andrewartha and Repatriation Commission [2003] AATA 118
Case: [2003] AATA 118
Decision Date: 7 February 2003

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Andrewartha and Repatriation Commission was heard, involving a dispute regarding the eligibility of a veteran for compensation related to irritable bowel syndrome (IBS). The appellant, Andrewartha, argued that his IBS was caused by his service in the Australian Defence Force and sought to have it recognised under the Veterans' Entitlements Act 1986. The Repatriation Commission, however, rejected the claim, leading to the appeal in the Federal Court.

The legal issues before the court centred on the interpretation and application of the Veterans' Entitlements Act 1986, specifically sections 6, 119, 120(4), 120B, and 196B. The court had to determine if the veteran's IBS was caused by his service and if it was covered by the relevant Statement of Principles concerning Irritable Bowel Syndrome. The court also needed to consider precedent cases such as Repatriation Commission v Smith, Brew v Repatriation Commission, Repatriation Commission v Gosewinckel, and Repatriation Commission v Tuite, to understand the standard of proof required for establishing a causal link between the condition and the service.

The court examined the evidence presented by Andrewartha and the Repatriation Commission's decision-making process. It assessed the medical evidence and the guidelines provided by the Repatriation Medical Authority Statement of Principles, Instrument No. 104 of 1996. The court concluded that the evidence did not sufficiently establish the required causal link between the veteran's IBS and his service, affirming the Commission's decision. The court found that Andrewartha had not met the onus of proof necessary to establish that his IBS was war-caused.

The Federal Court dismissed the appeal, upholding the Repatriation Commission's decision. The court ruled that the evidence did not support a finding that the veteran's IBS was caused by his service in the Australian Defence Force. Consequently, Andrewartha's claim for compensation was denied.

Orders