Blake and Repatriation Commission - [2008] AATA 78

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 78
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600278

VETERANS' APPEALS DIVISION )

Re PETER MAURICE BLAKE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President S D Hotop
Dr P A Staer, Member
Date30 January 2008
PlacePerth

Decision
The Tribunal affirms the decision under review.

.. ..........[Sgd S D Hotop].........
Deputy President

CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant served in Royal Australian Navy from 1962 to 1982 – applicant rendered operational service in 1970-1971 – applicant suffers from spondylolysis, depressive disorder and hypertension – Statements of Principles (SoPs) – material before Tribunal raises hypothesis that applicant’s conditions connected with operational service – raised hypothesis not upheld by SoPs – raised hypothesis not a reasonable hypothesis – Tribunal satisfied beyond reasonable doubt that no sufficient ground for determining that applicant’s conditions war-caused – applicant’s conditions not war-caused – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 7(1), s 9(1), s120 and s 120A
Statement of Principles concerning Spondylolisthesis and Spondylolysis (Instrument No 5 of 2006)
Statement of Principles concerning Depressive Disorder (Instrument No 17 of 2007)
Statement of Principles concerning Hypertension (Instrument No 35 of 2003, as amended by Instrument No 3 of 2004 and Instrument No 11 of 2008)
Bull v Repatriation Commission (2001) 188 ALR 756
Byrne v Repatriation Commission (2007) 97 ALD 359
Collins v Administrative Appeals Tribunal (2007) 96 ALD 536
Repatriation Commission v Deledio (1998) 83 FCR 82
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION

30 January 2008   Deputy President S D Hotop
  Dr P A Staer, Member

Introduction

1.      The applicant, Peter Maurice Blake, served in the Royal Australian Navy (“RAN”) from 6 July 1962 to 5 July 1982. During his RAN service he rendered “operational service”, within the meaning of the Veterans’ Entitlements Act 1986(Cth) (“VE Act”), on board HMAS Sydney in various periods in 1970 and 1971.
2.      The applicant suffers from, inter alia, lower back conditions (namely, spondylolysis, spondylolisthesis, and intervertebral disc prolapse), depressive disorder, and hypertension, and in November 2005 he made a claim to the Department of Veterans’ Affairs (“DVA”) that those conditions are related to his operational service and are thus “war-caused” within the meaning of the VE Act.
3.      The Veterans’ Review Board determined that the applicant’s spondylolysis, spondylolisthesis, intervertebral disc prolapse, depressive disorder, and hypertension are not war-caused.
4.      The applicant then applied to the Tribunal, seeking a determination that each of the abovementioned conditions is war-caused. At the hearing before the Tribunal, however, he abandoned his claim that his spondylolisthesis and intervertebral disc prolapse are war-caused, but he maintained his claim that his spondylolysis, depressive disorder, and hypertension are war-caused.
The Tribunal’s Determination
5.      For the reasons which follow, the Tribunal has determined that the applicant’s spondylolysis, depressive disorder, and hypertension are not war-caused.
The Evidence
6.      The evidence before the Tribunal comprised:
·the “T Documents” (T1-T29, pp…

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 Blake and Repatriation Commission

Details

AGLC: Blake and Repatriation Commission [2008] AATA 78
Case: [2008] AATA 78
Decision Date: 30 January 2008

CaseChat Overview and Summary

The case of Blake and Repatriation Commission involved an applicant who had served in the Royal Australian Navy from 1962 to 1982, with operational service between 1970 and 1971. The applicant suffered from spondylolysis, depressive disorder, and hypertension, and sought a determination that these conditions were connected to his operational service. The dispute was heard and determined by the Administrative Appeals Tribunal (AAT).

The legal issues before the court included whether the applicant's conditions were connected to his service, and if the Tribunal had correctly applied the relevant Statements of Principles (SoPs) in making its determination. The SoPs are critical in determining whether a condition is war-caused, and the applicant argued that the material before the Tribunal raised a hypothesis that his conditions were connected to his service. However, the Tribunal found that the hypothesis was not supported by the SoPs, and was not a reasonable hypothesis.

In reaching its decision, the Tribunal applied the relevant statutory provisions from the Veterans' Entitlements Act 1986 (Cth), and considered the relevant SoPs. The Tribunal was satisfied beyond reasonable doubt that there were no sufficient grounds for determining that the applicant's conditions were war-caused, and affirmed the decision under review. The applicant's appeal was therefore dismissed.

The final orders of the court were that the decision of the Tribunal be, and is hereby, affirmed. The applicant's appeal was dismissed with no order as to costs.

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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VETERANS' APPEALS DIVISION		)
Re		PETER MAURICE BLAKE

30 January 2008	Deputy President S D Hotop Dr P A Staer, Member
Introduction