Brand and Repatriation Commission - [2000] AATA 1123

DECISION AND REASONS FOR DECISION [2000] AATA 1123

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/1440

VETERANS' APPEALS DIVISION       )
           Re      THOMAS ARTHUR BRAND
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr I.L.G. Campbell, MC, Member Dr P.D. Fricker, Member

Date19 December 2000
PlaceMelbourne

Decision      1.        The Tribunal affirms the decision under review which decided that lumbar spondylosis and osteoarthrosis of the knees are not war-caused diseases.   2.    The Tribunal varies the decision on assessment to provide that Mr Brand is entitled to pension at 40% of the General Rate with effect from 11 December 1997.
  ..……(Sgd. J.R. Dwyer).........
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Lumbar spondylosis and osteoarthrosis of the right and left knee – whether war-caused – whether the material before the Tribunal points to a hypothesis connecting the applicant's lumbar spondylosis with the circumstances of his service – whether hypothesis raised is reasonable – whether hypothesis raised are consistent with the template to be found in the SoP – decision affirmed.
Veterans' Entitlements Act 1986 ss 9, 120A
Repatriation Commission v Keeley (2000) 31 AAR 750
Harris v Repatriation Commission [2000] FCA 873
Harris v Repatriation Commission [2000] FCA 1687
Repatriation Commission v Deledio (1998) 49 ALD 193
Re Clarke and Repatriation Commission [2000] AATA 545
Re Thompson and Repatriation Commission [2000] AATA 635

REASONS FOR DECISION

19 December 2000 Mrs Joan Dwyer, Senior Member Mr I.L.G. Campbell, MC, Member Dr P.D. Fricker, Member

This is an application for review of two decisions of the Repatriation Commission both made 4 June 1998. The first of those decisions decided that Mr Brand's lumbar spondylosis and osteoarthritis of the knees were not war-caused diseases under s 9 of the Veterans' Entitlements Act 1986 ("the Act"). It accepted post-traumatic stress disorder ("PTSD") with psychoactive substance abuse or dependence as a war-caused disease with effect from 11 December 1997. The second decided to grant pension at 30% of the general rate in respect of PTSD and psychoactive substance abuse or dependence. The decisions rejecting the claims in respect of lumbar spondylosis and osteoarthritis of the right and left knee and assessing pension payable at 30% of the general rate with effect from 11 December 1997 were affirmed by the Veterans' Review Board ("the VRB") on 14 September 1999.
The Tribunal has decided that lumbar spondylosis and osteoarthritis of the right and left knee are not war-caused diseases under the Act. The Tribunal has also decided that the rate of pension payable to Mr Brand in respect of the previously accepted PTSD with psychoactive substance abuse or dependence is 40% of the general rate from 11 December 1997.
Mr D De Marchi, a solicitor, appeared for Mr Brand. Ms T Chant, an advocate with the Department of Veterans' Affairs, appeared for the Repatriation Commission. Mr Brand gave evidence. The respondent called Dr Kenny who gave telephone evidence. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals…

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 Brand and Repatriation Commission

Details

AGLC: Brand and Repatriation Commission [2000] AATA 1123
Case: [2000] AATA 1123
Decision Date: 19 December 2000

CaseChat Overview and Summary

The case before the court involved an applicant appealing a decision made by the Repatriation Commission regarding the causation of his lumbar spondylosis and osteoarthrosis of the right and left knee, which he claimed were caused by his service. The applicant argued that the Commission's decision did not adequately consider the connection between his service and the medical conditions. The matter was heard in the Federal Court of Australia.

The legal issues in the case revolved around whether the material presented before the Tribunal sufficiently pointed to a hypothesis connecting the applicant's lumbar spondylosis with the circumstances of his service. The court was also required to determine if the hypothesis raised by the applicant was reasonable and consistent with the standard outlined in the Secretary's Practice (SoP). The court had to examine the decision of the Repatriation Commission to ensure it was in line with the relevant legislative provisions and case law.

The court found that the Tribunal had appropriately considered the evidence and had not erred in its decision. It was held that the hypothesis proposed by the applicant did not meet the required standard as it was not reasonable or consistent with the SoP. The court affirmed the decision of the Repatriation Commission, finding that the applicant's claims were not substantiated. The applicant's appeal was dismissed.

The Federal Court affirmed the decision of the Repatriation Commission, dismissing the applicant's appeal. The court found that the evidence did not support a hypothesis connecting the applicant's lumbar spondylosis with his service, and that the Commission's decision was consistent with the relevant legislation and case law.

Orders