Baverstock and Repatriation Commission

[2008] AATA 467

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 467

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 2007/11

VETERANS' APPEALS DIVISION		)
Re		GARRY BAVERSTOCK

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Dr P McDermott RFD, Senior Member

Dr G J Maynard, Brigadier (Rtd), Member

Date5 June 2008

PlaceBrisbane

Decision

The Tribunal sets aside the decision under review insofar as it relates to the condition of adenocarcinoma of the kidney, and substitutes the decision that:

(i) the condition of adenocarcinoma of the left kidney is a defence-caused condition within the meaning of section 70 of the Veterans Entitlement Act 1986;
(ii) Mr Garry Baverstock is entitled to receive a pension for incapacity associated with this condition with effect from and including 2 December 2003; and
(iii) the matter is remitted to the Repatriation Commission for the assessment of the pension.

..................[Sgd]..............................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – disability pension – veteran served with Royal Australian Navy – maintenance worker – not provided with safety protection equipment – exposure to respirable asbestos fibres – 15 years later veteran developed adenocarcinoma of the kidney – left kidney subsequently removed – disease is defence caused – decision set aside.

STATUTORY INTERPRETATION – noscitur a sociis – interpretation of “dislodgement” as it appears in Statement of Principles for adenocarcinoma of the kidney: Instrument no.88 of 2001.

Veterans’ Entitlements Act 1986 ss 5(1), 68, 70, 120B(3), 196B, 198A(1), 198B(1),

Repatriation Commission v Smith (1987) 15 FLR 327

Vietnam Veterans’ Association of Australia New South Wales Branch Inc v Cohen (1996) 70 FCR 419

Wallis v Repatriation Commission (2000) 62 ALD 502

Magdalinski and Repatriation Commission [2000] AATA 108

Repatriation Commission v Hayes (1982) 5 ALD 8

Lees v Repatriation Commission (2002) 125 FCR 331

Re Robertson and Repatriation Commission  (1998) 50 ALD 668

RepatriationCommission v Cornelius [2002] FCA 750

REASONS FOR DECISION

5 June 2008 Dr P McDermott RFD, Senior Member   

INTRODUCTION

1.      Mr Garry Baverstock (“the veteran”) has served in the Royal Australian Navy. He claims that the adenocarcinoma of his kidney, which led to the removal of his entire left kidney, was caused by his service. 

SERVICE

2.      From 14 July 1973 until 13 July 1984 the veteran served with the Royal Australian Navy. He also has other military service which is not material to this application.

3.      While the veteran served with the Royal Australian Navy, official records show that he was posted to the following ships:

·HMAS Stuart (6 October 1975 to 16 January 1977; 29 March 1977 to 18 December 1977);

·HMAS Derwent (6 October 1980 to 12 January 1981)

·HMAS Yarra (27 January 1981 to 8 June 1981)

·HMAS Parramatta (31 May 1982 to 14 June 1983)

·HMAS Supply (from 6 October 1975 to a date prior to his discharge).

4. We are satisfied that his service is defence service under s68 of the Veterans’ Entitlements Act 1986 (the Act).

CLAIM OF VETERAN

5.      On 25 September…