Burton and Repatriation Commission - [2004] AATA 784

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 784
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/821

VETERANS' APPEALS DIVISION )

Re JAMES ARTHUR BURTON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Ms G Ettinger - Senior Member

Date26 July 2004
PlaceSydney
DecisionThe Administrative Appeals Tribunal affirms the decision of the Repatriation Commission dated 29 October 2001 as affirmed by the Veterans’ Review Board decision of 14 April 2003 to refuse the Applicant, Mr Burton’s claim that his psoriasis was war-caused pursuant to section 9 of the Veterans’ Entitlements Act 1986.

[Sgd] Ms G Ettinger
Senior Member

CATCHWORDS
Veteran – Applicant suffers psoriasis – contracted during eligible war service as a result of streptococcal throat infection – diagnosis confirmed – causation an issue – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 - ss 9, 119, 120B, 120(4), 196B(14)
Repatriation Medical Authority, Statement of Principles Instrument No.57 of 2002
CASE LAW
Repatriation Commission v Gorton [2001] FCA 1194
Mason v Repatriation Commission [2000] FCA 1409
Repatriation Commission v Cooke (1998) 160 ALR 17
Repatriation Commission v Bey (1997) 79 FCR 364
Holthouse v Repatriation Commission (1982) 1 RPD 287
Benjamin v Repatriation Commission (2001) 64 ALD 411
Repatriation Commission v Tuite (1993) 39 FCR 540
Roncevich v Repatriation Commission [2003] FCAFC 146
Re Repatriation Commission and Stephen Edward Keenan, Federal Court, 29 September 1989, 594/1989
Repatriation Commission v Law (1981) 36 ALR 411

REASONS FOR DECISION

26 July 2004
     Ms G Ettinger - Senior Member

1.      The decision under review before the Administrative Appeals Tribunal (“the Tribunal”) was the decision of the Repatriation Commission dated 29 October 2001 (T2), as affirmed by the Veterans’ Review Board decision of 14 April 2003 (T16), to reject the Applicant Mr James Arthur Burton’s claim that his psoriasis was war-caused pursuant to section 9 of the Veterans’ Entitlements Act 1986 (“the Act”).
2.      The Applicant, Mr Burton was represented by Mr M Vincent, of counsel instructed by Dibbs Barker Gosling, and the Respondent by its advocate, Ms T McConnell who appeared with Mr A Breen.
ISSUE BEFORE THE TRIBUNAL
3. The issue for consideration by the Tribunal was whether the psoriasis suffered by the Applicant was war-caused pursuant to section 9 of the Veterans’ Entitlements Act1986.
LEGISLATIVE CONTEXT
4.      The relevant legislation in this matter was the Veterans’ Entitlements Act1986, in particular sections 9(1), 119, 120B, 120(4) and 196B(14). Section 9 of the Act was amended by proclamation on 1 July 2004, however, the law relevant at the time of this matter provided as follows:
“9          War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
…
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

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 Burton and Repatriation Commission

Details

AGLC: Burton and Repatriation Commission [2004] AATA 784
Case: [2004] AATA 784
Decision Date: 26 July 2004

CaseChat Overview and Summary

Burton, the applicant, sought a review of a decision made by the Repatriation Commission, the respondent, regarding his eligibility for a pension based on his service in the war. The crux of the dispute was whether Burton's psoriasis, diagnosed during his service, was contracted as a result of a streptococcal throat infection he suffered during his eligible war service. The Federal Court of Australia was tasked with determining the validity of Burton's claim and the correctness of the Commission's decision.

The legal issues central to the case involved the interpretation of the relevant legislation concerning the eligibility criteria for a pension and the burden of proof regarding the causation of the condition. Specifically, the court had to decide whether the evidence was sufficient to establish a causal link between the streptococcal throat infection and the onset of psoriasis during Burton's war service. The court also needed to assess the correctness of the Commission's decision in light of the evidence presented.

The court examined the evidence provided by Burton and concluded that the diagnosis of psoriasis was indeed confirmed. However, the court found that the evidence did not sufficiently establish a causal link between the streptococcal throat infection and the psoriasis. The court noted that while the evidence showed Burton had a streptococcal throat infection, there was insufficient evidence to demonstrate that this infection led to the onset of psoriasis during his war service. As a result, the court upheld the Commission's decision, affirming that the applicant was not entitled to the pension on the basis of his claim.

The final orders of the court affirmed the decision of the Repatriation Commission, dismissing Burton's application for a review and maintaining that he was not entitled to the pension based on his claim regarding the causation of his psoriasis.

Orders