Bayly and Repatriation Commission - [2001] AATA 968

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DECISION AND REASONS FOR DECISION [2001] AATA 968

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/166

VETERANS' APPEALS DIVISION          )
           Re      John Joseph Bayly
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member Dr P D Lynch, Member

Date29 November 2001
PlaceSydney

Decision The Tribunal decides pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 that: (1) The decision under review, in respect of the conditions of Generalised Anxiety Disorder with Alcohol Dependence, Hypertension, Gastro-Oesophageal Reflux Disease, Gout of the Left Knee, Osteoarthritis of the Left Knee, Relocation of the Patella Ligament of the Left Knee and Removal of the Left Kneecap is set aside and in substitution therefor, the Tribunal decides that these conditions are war-caused with entitlement to Disability Pension for these conditions assessed at 100 per cent of the General Rate from and including 20 August 1996. (2) The decision under review in respect of Peptic Ulcer Disease and Renal Cell Carcinoma is set aside and in substitution therefor the Tribunal decides that these conditions are also war-caused with Disability Pension from and including 20 August 1996. The assessment of the appropriate impairment rating for these conditions is remitted to the Repatriation Commission. (3) The decision under review in relation to Carcinoid Syndrome is varied to include the diagnosis of this condition as Carcinoid Syndrome and Carcinoid Tumour. The decision as varied, is affirmed.

………………........................
Ms S M Bullock
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – Entitlement - Disability Pension - Operational Service - Defence Service - Reasonable Hypothesis - Reasonable Satisfaction - Diagnosis - Osteoarthritis - Renal Cell Carcinoma - Carcinoid Syndrome - Carcinoid Tumour - Generalised Anxiety Disorder with Alcohol Dependence - Hypertension - Gastro-Oesophageal Reflux Disease - Peptic Ulcer Disease - Gout - Hiatus Hernia - Relocation of the Patella Ligament of the Left Knee - Removal of the Left Knee Cap
LEGISLATION
Veterans' Entitlements Act 1986ss 9, 13, 70, 120, 120A, 120B

Deledio v Repatriation Commission (1997) 47 ALD 261
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Stares (1996) 66 FCR 594
Repatriation Commission v Bey (1997) 79 FCR 364

REASONS FOR DECISION

29 November 2001 Ms S M Bullock , Senior Member Dr P D Lynch, Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr John Joseph Bayly in relation to a decision of the Repatriation Commission ("the Commission") of 2 February 1998 (T2). The Veterans' Review Board ("the Board") varied the Commission's decision on 13 December 1999 by adding the diagnosis of carcinoid syndrome and affirming the decision in relation to osteoarthrosis of the left knee; renal cell carcinoma with metastasis; carcinoid syndrome; generalised anxiety disorder with alcohol dependence; gastro-oesophageal reflux disease; peptic ulcer disease; and gout of the left knee (T39). It should be noted that the Board consented to Mr Bayly's withdrawal of his claims for chondromalacia patellae of the left knee, lumbar…

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 Bayly and Repatriation Commission

Details

AGLC: Bayly and Repatriation Commission [2001] AATA 968
Case: [2001] AATA 968
Decision Date: 29 November 2001

CaseChat Overview and Summary

The case of Bayly v Repatriation Commission involved a veteran seeking entitlement to a disability pension based on various health conditions including osteoarthritis, renal cell carcinoma, and carcinoid syndrome. The Federal Court of Australia was tasked with determining whether these conditions were connected to Mr Bayly's operational service. The central issue was whether the veteran's current health conditions were reasonably attributable to his service, particularly whether there was a reasonable hypothesis that these conditions arose from his military service.

The court considered the principles set out in Bushell and Byrnes cases, which are applicable when there is no relevant Statement of Principles. It examined the evidence provided by Mr Bayly regarding his weight fluctuations and his service history. The court evaluated whether Mr Bayly's weight gain during his service, particularly during his time in Thailand, and his subsequent difficulty in losing weight could be linked to his service. The court also looked at the medical evidence and Mr Bayly's testimony to determine if there was a reasonable hypothesis connecting his current health conditions to his service.

Ultimately, the court found that there was no reasonable hypothesis connecting Mr Bayly's carcinoid syndrome or carcinoid tumour to his service. The court concluded that the veteran had not satisfied the onus of proving a connection between his service and the claimed conditions, and therefore, his claim for a disability pension was dismissed. The court's decision was based on the lack of sufficient evidence to establish a reasonable hypothesis linking the claimed conditions to his military service.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

There is no Statement of Principles for carcinoid syndrome or carcinoid tumour. In these circumstances, the principles set out in the cases of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564, set out the principles to be applied by decision-makers when no relevant Statement of Principles exists.Evidence of Mr John Joseph Bayly Mr Bayly told the Tribunal that he currently weighs 110 kilograms fully clothed and approximately 106 or 107 kilograms unclothed. Mr Bayly stated that he is in the habit of weighing himself every morning. Mr Bayly stated that he was 110 kilograms for seven or eight years up to the time of the diagnosis of his renal cell carcinoma in 1995. After three operations, his weight reduced significantly but he regained weight some 12 to 18 months later. Mr Bayly stated that he believes his weight increased to 110 kilograms after he ceased work in 1989 (Transcript, p39). In relation to his work, Mr Bayly informed the Tribunal that after discharge from the Royal Australian Air Force in 1977, he worked part-time at Hyperion Thoroughbreds, initially working on a temporary basis for approximately three years, after which he was appointed Sales Manager on a permanent basis. He continued working with this organisation for 12 years. During this 12 year period, Mr Bayly considered that he weighed between 102 and 105 kilograms. At age 17 years, when Mr Bayly enlisted, he weighed approximately 149 pounds and maintained a steady weight. In November 1960, Mr Bayly weighed approximately 177 pounds and thought that his weight remained stable at this time because he was physically fit, for example playing football and golf. In August 1965, Mr Bayly believed he weighed 207 pounds and this was before he went to Thailand (Transcript, p40). In Thailand, in Ubon, Mr Bayly stated that his weight increased significantly, but he managed to loose some weight when he returned. In Ubon, Mr Bayly wore mainly shorts, a short sleeve shirt and long socks. When he arrived in Thailand, he and the other service men were sent to a local tailor who made up tropical uniforms. Mr Bayly did not recall any problems with the uniform. He was measured once and issued with three uniform sets to last him his six month tour of duty. Mr Bayly later recalled he may have purchased two extra shirts and possibly a pair of shorts, because he had put on weight. Mr Bayly could not recall the extent of his weight gain in Ubon. He knew he had put on weight however, because when he returned to Australia, his family and friends mentioned to him that they had noticed his weight gain. After Mr Bayly returned to Australia, he was working in a second job as an administrator and a barman at the Penrith Rugby Leagues Club. He would work on weekends or after his RAAF duty. From 1968 until 1974, Mr Bayly believed that he weighed between 95.5 kilograms (210 pounds) and in March or April of 1975 weighed between 92 and 93.6 kilograms. In 1975, Mr Bayly gained weight to 103 kilograms. Mr Bayly was unable to say why he had increased his weight at that stage, but he did recall that he was hospitalised for excessive weight at the RAAF Hospital at Richmond. Mr Bayly told the Tribunal that he was unsuccessful in reducing his weight. There was a purge in the Services at that time to have members reduce their weight. Mr Bayly explained that he was told he should reduce his alcohol consumption in an attempt to also lose weight. Mr Bayly stated that he was directed to diet and was doing this from the time he came back from Thailand until his discharge. Mr Bayly stated that he was never successful in reducing weight primarily, he believed, because he was drinking too much alcohol. Further, Mr Bayly stated that he was under a lot of pressure with a young family and he had his circumstances in Ubon on his mind. He was working two jobs and not eating properly.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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