Bey v Repatriation Commission - [1997] FCA 452

CATCHWORDS

VETERANS AFFAIRS - whether reasonable hypothesis connecting rheumatoid arthritis with service of veteran - whether mere possibility of connection inconsistent with there being a reasonable hypothesis.

Administrative Appeals Tribunal Act 1975

s 44

Veterans' Entitlements Act 1986

s 9, s 9(1), s 9(1)(e), s 9(2), s 119, s 120, s 120(1),
s 120(2), s 120(3)

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

Repatriation Commission v Yates (1995) 57 FCR 241

Repatriation Commission v Whetton (1991) 31 FCR 513

Kumar v Immigration Review Tribunal (1992) 36 FCR 544

Repatriation Commission v Stares (1996) 66 FCR 594

East v Repatriation Commission (1987) 16 FCR 517

Cooke v Repatriation Commission (Einfeld, Lee, Carr JJ,

unreported, 30 April 1997)

MICHAEL GEORGE BEY v REPATRIATION COMMISSION
No VG 10 of 1996

GOLDBERG J
MELBOURNE
30 MAY 1997

FEDERAL COURT OF AUSTRALIA)
VICTORIA DISTRICT REGISTRY)
GENERAL DIVISION) No VG 10 of 1996

B E T W E E N:

MICHAEL GEORGE BEY
Applicant

and

REPATRIATION COMMISSION
Respondent

CORAM:GOLDBERG J
PLACE:MELBOURNE
DATE:30 MAY 1997

REASONS FOR JUDGMENT

Introduction and Background
The applicant appeals to the Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 from a decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal given on 18 December 1995 whereby the Tribunal affirmed the decision made by a delegate of the Repatriation Commission on 14 August 1992 (affirmed by the Veterans' Review Board on 8 July 1993) that the applicant's rheumatoid arthritis was not war‑caused.

The applicant had served with the Australian Regular Army in Vietnam from 12 April 1968 to 27 April 1969, which service constituted eligible war service and operational service for the purposes of the Veterans' Entitlements Act 1986 ("the Act"). The applicant has now contracted rheumatoid arthritis which he contends is sufficiently linked to his service in Vietnam for it to be regarded as war‑caused for the purposes of the Act.

Whilst in Vietnam the applicant served as a member of an engineering squadron. He carried out maintenance and construction work including the servicing of heavy earthmoving equipment which exposed him to stress. He experienced discomfort from time to time which he attributed to the manner in which he was required to service or repair machinery. The applicant played a lot of sport in Vietnam and he would sometimes wake up the next morning with painful joints or limbs and attribute his pains to sporting incidents. The first time the applicant's symptoms were severe enough for him to seek medical attention was in 1974 or 1975 but he was first diagnosed as suffering from rheumatoid arthritis in 1979. He now contends that the rheumatoid arthritis was war‑caused.

Section 9 of the Act identifies the circumstances in which an injury suffered by a veteran is to be taken to be a war‑caused injury or a war‑caused disease. Section 9 is in the following terms:

"9.(1)Subject to this section, for the purposes of this Act, an injury suffered by…

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 Bey v Repatriation Commission

Details

AGLC: Bey v Repatriation Commission [1997] FCA 452
Case: [1997] FCA 452
Decision Date: 30 May 1997

CaseChat Overview and Summary

In the case of Bey v Repatriation Commission, the applicant, Michael George Bey, appealed against a decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal, which affirmed a decision by a delegate of the Repatriation Commission that Bey's rheumatoid arthritis was not war-caused. Bey argued that his rheumatoid arthritis, which he contracted after serving in Vietnam, was sufficiently linked to his service to be regarded as war-caused under the Veterans' Entitlements Act 1986. The central issue was whether the Tribunal correctly applied s 120 of the Act, which pertains to the presumption of war-causation unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for making such a determination.

The Tribunal found that the evidence did not raise a reasonable hypothesis connecting Bey's rheumatoid arthritis with his service in Vietnam. The applicant's counsel, Mr. De Marchi, argued that the Tribunal erred in its application of s 120, particularly in its treatment of expert medical evidence. He contended that the Tribunal failed to properly consider whether a reasonable hypothesis was established and instead focused on whether such a hypothesis was raised. Mr. De Marchi asserted that the Tribunal conflated the requirements of s 120(3) and s 120(1) and improperly weighed the evidence for and against the hypothesis.

Justice Goldberg found that while the Tribunal correctly identified the principles from Bushell v Repatriation Commission and Byrnes v Repatriation Commission, it erred in its approach to the evidence. The Tribunal incorrectly dismissed Dr. Mackay's evidence as too tenuous to support a reasonable hypothesis. Justice Goldberg noted that a hypothesis does not need to be proven or supported by the weight of medical opinion to be considered reasonable. The Tribunal also erred in its assessment of Mr. Hadley's evidence, failing to properly consider the basis for his hypothesis and misapplying the principles from Bushell.

Consequently, Justice Goldberg concluded that the Tribunal's decision should be set aside. The case will now be determined under s 120(1) of the Act, requiring the Commission to determine that the disease was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making the determination. The Court will allow the parties to make submissions on whether the matter should be remitted to the Tribunal for a new determination.

Orders