AZEL and REPATRIATION COMMISSION - [2011] AATA 470

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 470
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2010/3942

VETERANS’ APPEALS DIVISION )

Re GEORGE MICHAEL AZEL

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member
Date 6 July 2011
Place Melbourne

Decision The Tribunal affirms the decision under review.
..............[signed]................................
Senior Member

VETERANS’ AFFAIRS - Veterans’ entitlements - naval service - ischaemic heart disease - whether related to smoking
Veterans' Entitlements Act 1986 ss 9, 70(5)(a), 120(1), 120(3), 120(4)
Kattenberg v Repatriation Commission [2002] FCA 412
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Tuite (1993) 39 FCR 540
Roncevich v Repatriation Commission (2005) 222 CLR 115
REASONS FOR DECISION

6 July 2011   G. D. Friedman, Senior Member

1.      George Azel served in the Royal Australian Navy from 9 January 1964 to 31 December 1973. His service included a period on board HMAS Stuart from 1967 to 1972. The period from 25 January 1968 to 5 February 1968 constitutes operational service under the Veterans' Entitlements Act 1986 (the Act). His service from 7 December 1972 to 31 December 1973 constitutes eligible defence service under the Act.
2.      Mr Azel is in receipt of a disability pension at 40 per cent of the general rate. He suffers from a number of medical conditions, several of which have been accepted by the respondent as war-caused. On 23 February 2009 he lodged a claim for an increase in disability pension on the grounds that his ischaemic heart disease was war-caused or defence-caused as a consequence of smoking during his service. His claim was rejected by the respondent and the Veterans’ Review Board (VRB). Mr Azel is seeking review of the decision.
LEGAL FRAMEWORK
3. Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
4.        In the circumstances of this case, where Mr Azel has rendered operational service, the issue of whether the diagnosed condition was caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:
1.        The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises…

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 AZEL and REPATRIATION COMMISSION

Details

AGLC: AZEL and REPATRIATION COMMISSION [2011] AATA 470
Case: [2011] AATA 470
Decision Date: 6 July 2011

CaseChat Overview and Summary

The case of AZEL and the Repatriation Commission involved the appellant, AZEL, who sought a review of a decision by the Repatriation Commission regarding his eligibility for certain veterans' entitlements. AZEL, a former member of the naval service, claimed that his ischaemic heart disease was related to his service, and he argued that this condition should be recognised as a service-related injury. The matter was brought before the administrative appeals tribunal for resolution.

The primary legal issue before the tribunal was whether AZEL's ischaemic heart disease was related to his service in the naval forces, thereby entitling him to veterans' benefits. A secondary issue was the impact of AZEL's smoking habit on the causation of his condition. The tribunal needed to assess the evidence presented by both parties and determine whether the disease was service-connected or if AZEL's personal habits played a significant role in its development.

The tribunal considered the medical evidence and the submissions from both parties. It found that while AZEL's naval service may have contributed to his ischaemic heart disease, his significant smoking habit was a substantial contributing factor. Given that smoking is a personal choice and not a service-related activity, the tribunal concluded that AZEL's disease was not entirely attributable to his service. Consequently, the tribunal upheld the original decision by the Repatriation Commission, affirming that AZEL was not entitled to the veterans' entitlements he sought.

No further orders were made by the tribunal beyond affirming the decision under review.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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