Broad and Repatriation Commission - [2004] AATA 880

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 880
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/338

VETERANS' APPEALS DIVISION )

Re ROBERT CLARENCE BROAD

Applicant

And
REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Brigadier RDF Lloyd, Member
Date20 August 2004
PlacePerth

Decision
Pursuant to s43 of the Administrative Appeals Tribunal 1975, the Tribunal decides:

(a) To set aside the VRB decision under review of 8 August 2003 in so far as it rejected Lumbar Spondylosis and to accept that condition as being defence-caused with effect from 7 March 2001.

(b) To remit the matter of assessment of incapacity from this accepted condition of Lumbar Spondylosis, together with all other previously accepted conditions, to the respondent.

.........(sgd R D F Lloyd)..........
Member

CATCHWORDS
Veterans’ Affairs – Veterans’ Entitlements – applicant ex Australian Army (National Service) with operational service in Vietnam and eligible defence service – Military Police – claim for lumbar spondylosis – pre enlistment lower back injury (permanent ligamentous instability) – wording/use of SoPs questioned – reasonably satisfied defence injuries contributed to worsening of instability hence contributing to subsequent post discharge development of lumbar spondylosis – condition accepted as defence caused – assessment remitted to respondent.
Veterans’ Entitlements Act 1986 (Cth) ss 9(1), 70(5), 120(1), 120(3), 120(4), 120A
Statements of Principle Concerning Lumbar Spondylosis:
-          Instrument No. 46 of 2002 as amended by No. 77 of 2002
-          Instrument No. 47 of 2002 as amended by No. 78 of 2002
-          Instrument No. 27 of 1999
-          Instrument No. 28 of 1999
Re:Repatriation Commission v Gosewinckel [1999] FCA 1273
Repatriation Commission v Deledio (1998) 83 FCR 82
Stoddart v Repatriation Commission [2003] FCA 334
Kattenberg v Repatriation Commission [2002] FCA 412
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Gorton [2001] FCA 1158
Repatriation Commission v Williams [2001] FCA 1195
REASONS FOR DECISION

20 August 2004 Brigadier RDF Lloyd, Member

1.      This is an application before the Administrative Appeals Tribunal (‘the Tribunal”) by Mr Robert Clarence Broad (“the applicant”) for a review of a decision of the Veterans’ Review Board (“the VRB”) dated 8 August 2003 which:
(a)      affirmed the decision of the Repatriation Commission (“the respondent”) of 4 July 2001 which had determined that the condition of Lumbar Spondylosis was neither war nor defence caused; and
(b)      affirmed the respondent’s 23 October 2000 decision which determined that disability pension should continue at 100% of the General Rate.
2. The applicant attended the hearing and was represented by Ms M Cowan of Hammond Worthington, Solicitors. The respondent was represented by Mr C Ponnuthurai. The Tribunal had before it the documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”). In addition the following documents were taken into evidence at the request of the applicant’s solicitor:
Exhibit A1 Statement of Evidence by Mr R Broad dated 24 November 2003.
Exhibit A2Statutory Declaration by Mr P J Clowry dated 27 October 2003.
Exhibit A3Bundle of Radiological Reports re Mr R…

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 Broad and Repatriation Commission

Details

AGLC: Broad and Repatriation Commission [2004] AATA 880
Case: [2004] AATA 880
Decision Date: 20 August 2004

CaseChat Overview and Summary

Broad was an ex-member of the Australian Army with service in Vietnam. He sought entitlement for lumbar spondylosis, a condition he claimed was caused by his service. Broad had a history of lower back injury prior to his enlistment. The Repatriation Commission questioned whether the condition met the criteria set out in the relevant Statements of Principle Concerning Lumbar Spondylosis, which were referenced in the Veterans’ Entitlements Act 1986. The Commission was also concerned about whether Broad's service had contributed to the worsening of his condition, and whether this worsening contributed to the post-discharge development of lumbar spondylosis.

The legal issues before the court involved interpreting the Statements of Principle, determining whether Broad's service was a contributing factor to his lumbar spondylosis, and assessing the appropriateness of the Commission's decision to reject the claim. The court examined whether the Commission had applied the correct legal principles and whether its decision was supported by the evidence. The case also considered the interaction between the Statements of Principle and the specific facts of Broad's case.

The court found that the Commission had not correctly applied the Statements of Principle and had failed to adequately consider the evidence regarding the contribution of Broad's service to his lumbar spondylosis. The court concluded that Broad was reasonably satisfied that his defence service had contributed to the worsening of his pre-existing lower back injury, leading to the development of lumbar spondylosis. The court therefore set aside the Commission's decision and accepted the condition as defence-caused. The matter was remitted to the Commission for reassessment of incapacity from this condition, along with other previously accepted conditions.

The court ordered that the decision of the Repatriation Commission rejecting Broad's claim for lumbar spondylosis be set aside and that the condition be accepted as defence-caused with effect from 7 March 2001. The matter was to be remitted to the Commission for reassessment of incapacity from this condition and all other previously accepted conditions.

Orders

Orders of the court

Pursuant to s43 of the Administrative Appeals Tribunal 1975, the Tribunal decides:

(a) To set aside the VRB decision under review of 8 August 2003 in so far as it rejected Lumbar Spondylosis and to accept that condition as being defence-caused with effect from 7 March 2001.

(b) To remit the matter of assessment of incapacity from this accepted condition of Lumbar Spondylosis, together with all other previously accepted conditions, to the respondent.

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		ROBERT CLARENCE BROAD