Bailey and Repatriation Commission - [2007] AATA 2089

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2089
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N 200601176

VETERANS' APPEALS DIVISION )

Re TERRENCE PETER BAILEY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Ms N Isenberg, Senior Member

Dr M Thorpe, Member

Date21 December 2007
PlaceSydney

Decision

The Administrative Appeals Tribunal decides that:

· the decision under review in relation to cervical spondylosis is affirmed; and

· the decision under review in relation to lumbar spondylosis is set aside as that condition is war-caused, as defined in section 9 of the Veterans’ Entitlement Act 1986, with effect from 11 March 2006, and the matter is remitted to the Repatriation Commission for assessment.

.................[sgd]...........................
Ms N Isenberg, Senior Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – claim that injuries were war-caused – consideration of Statement of Principles in relation to cervical spondylosis and lumbar spondylosis – the Tribunal decides that the decision in relation to cervical spondylosis is affirmed, decision in relation to lumbar spondylosis set aside
Veterans’ Entitlements Act 1986 (Cth) - sections 9, 120, 120A and 196A, 196B
Statement of Principles concerning cervical spondylosis No. 33 of 2005
Statement of Principles concerning lumbar spondylosis No. 37 of 2005
Bull v Repatriation Commission (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) 175 CLR 408
Elliott v Repatriation Commission (2002) 73 ALD 377
Hardman v Repatriation Commission (2004) 82 ALD 433
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Youngnickel v Repatriation Commission [2004] FCA 1691
REASONS FOR DECISION

21 December 2007 Ms N Isenberg, Senior Member
Dr MEC Thorpe, Member

1.      The decision under review is the decision of the Repatriation Commission dated 10 May 2005 as affirmed by the Veterans’ Review Board (‘the VRB’) on 9 June 2006 that refused the claim by Mr Bailey (‘the veteran’) that his cervical spondylosis and lumbar spondylosis were related to service.
Background
2.      Mr Bailey served in the Royal Australian Navy between 9 January 1958 and 8 January 1964. His ‘operational service’ as defined in the Act was as follows:
HMAS Quickmatch 24 Sep 1958 – 06 Nov 1958
20 Nov 1958 – 08 Dec 1958

HMAS Vampire        23 Jun 1960 – 29 Jun 1960
04 Jul 1960 – 08 Jul 1960
15 Jul 1960 – 22 Jul 1960
29 Jul 1960 – 31 Jul 1960
01 Aug 1960 – 16 Aug 1960
10 Sep 1960 – 13 Sep 1960
18 Sep 1960 – 10 Oct 1960
14 Oct 1960 – 05 Nov 1960
15 Nov 1960 – 30 Nov 1960

HMAS Melbourne 15 Apr 1963 – 08 May 1963
10 May 1963 – 25 May 1963

3. Mr Bailey contended that his neck condition arose as a result of an incident aboard HMAS Quickmatch in 1958 during operational service, and that he injured his back aboard HMAS Vampire in 1960 while on operational service.
Legislative Background
4. Section 9 of the

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 Bailey and Repatriation Commission

Details

AGLC: Bailey and Repatriation Commission [2007] AATA 2089
Case: [2007] AATA 2089
Decision Date: 21 December 2007

CaseChat Overview and Summary

Bailey brought a claim against the Repatriation Commission, arguing that his injuries were war-caused and therefore entitled to benefits under the Veterans’ Entitlements Act 1986. The dispute centered on whether Bailey's conditions, specifically cervical spondylosis and lumbar spondylosis, were linked to his operational service. This case was heard by the Administrative Appeals Tribunal (AAT), which had to determine if the Repatriation Commission's decisions regarding these conditions were correct.

The primary legal issues the AAT addressed were whether Bailey's cervical spondylosis and lumbar spondylosis met the statutory criteria for being war-caused, as defined in section 9 of the Veterans’ Entitlements Act. The AAT examined the relevant Statements of Principles and whether these conditions were connected to Bailey's service. The court had to interpret the relevant legislation and case law, including Bull v Repatriation Commission and Bushell v Repatriation Commission, to assess if the conditions were indeed attributable to Bailey's service.

The AAT affirmed the decision concerning Bailey's cervical spondylosis, finding that the condition was not war-caused. However, the AAT set aside the decision regarding lumbar spondylosis, ruling that it was war-caused and thus entitled to benefits. The AAT found that the evidence and the applicable legal criteria supported the conclusion that Bailey's lumbar spondylosis was linked to his service. The Tribunal relied on precedents such as Hardman v Repatriation Commission and Lees v Repatriation Commission, which provided guidance on similar issues. Ultimately, the AAT remitted the matter to the Repatriation Commission for reassessment of Bailey's entitlements.

The AAT's orders were that the decision concerning Bailey's cervical spondylosis was affirmed, meaning no benefits would be awarded for that condition. However, the decision regarding lumbar spondylosis was set aside, and the matter was remitted to the Repatriation Commission for reassessment, with the condition deemed war-caused from 11 March 2006. This decision ensures that Bailey's lumbar spondylosis is now subject to the appropriate benefits under the Act.

Orders

Orders of the court

The Administrative Appeals Tribunal decides that:

· the decision under review in relation to cervical spondylosis is affirmed; and

· the decision under review in relation to lumbar spondylosis is set aside as that condition is war-caused, as defined in section 9 of the Veterans’ Entitlement Act 1986, with effect from 11 March 2006, and the matter is remitted to the Repatriation Commission for assessment.

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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VETERANS' APPEALS DIVISION		)
Re		TERRENCE PETER BAILEY