Carney and Repatriation Commission - [2005] AATA 280

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 280
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/612

VETERANS' APPEALS DIVISION )

Re DOUGLAS LESLIE CARNEY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr KS Levy, Member
Date1 April 2005
PlaceBrisbane

Decision
The Tribunal sets aside the decision under review and substitutes the decision that Mr Carney’s condition of lumbar spondylosis is defence caused with effect from 3 June 2001.

..................[Sgd].......................
Dr KS Levy
Member

CATCHWORDS
VETERANS’ AFFAIRS – Pensions, benefits and entitlements – war caused injury during defence service – lumbar spondylosis – condition accepted – whether injury was war caused – injury satisfied the relevant factor in the Statement of Principles – decision under review set aside and substituted accordingly.
Veterans’ Entitlements Act 1986 s 68, 70, 120B, 120
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Harris v Repatriation Commission (2000) 62 ALD 174
Arnott v Repatriation Commission (2001) 106 FCR 83; (2001) 63 ALD 575
Mason v Repatriation Commission [2000] FCA 1409
Knight v Repatriation Commission [2002] FCA 103
REASONS FOR DECISION

1 April 2005 Dr KS Levy, Member

1. The decision under review by the Administrative Appeals Tribunal (the Tribunal) is the decision of the Repatriation Commission dated 2 November 2001 as affirmed by the Veterans’ Review Board’s decision of 5 July 2004. That decision rejected the applicant’s claim that his lumbar spondylosis was defence caused and thereby denied eligibility for pension under section 70 of the Veterans’ Entitlements Act 1986 (the Act) for that condition.
2. The applicant, Mr Douglas Leslie Carney, was represented by Mr D O’Gorman of Counsel and the respondent, by Mr M Smith, Departmental Advocate.
Issue before the Tribunal
3. The issue of consideration by the Tribunal was whether the lumbar spondylosis suffered by the applicant was defence caused, pursuant to section 70 of the Act.
Legislation
4. The relevant legislation in this matter is contained in sections 70, 120B and 120 sub-section 4 of the Act. Section 70 provides as follows:
“70 Eligibility for pension under this Part
(1) Where:
(a)…
(b)a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;

the Commonwealth is, subject to this Act, liable to pay:
(c) …
(d) in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.

5. The applicant claims he satisfies the requirements of section 70(5) of the Act as being an injury which is a “defence caused injury”. He has rendered eligible defence service in accordance with section 68(1) of the Act as he satisfies the definition of “defence service” in that he rendered continuous full time service as a member of the defence force on and after 7 December 1972.
6. As Mr Carney lodged his claim with the respondent after 1 June 1994, the Tribunal is required to apply section 120B of the Act and consider his claim in the…

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 Carney and Repatriation Commission

Details

AGLC: Carney and Repatriation Commission [2005] AATA 280
Case: [2005] AATA 280
Decision Date: 1 April 2005

CaseChat Overview and Summary

In the case before the Administrative Appeals Tribunal, Mr. Carney sought a review of a decision by the Repatriation Commission concerning his entitlement to a pension for a war-caused injury during his defence service. The specific injury in question was lumbar spondylosis, which Mr. Carney claimed was caused by his service. The Tribunal was tasked with determining whether the Repatriation Commission had correctly assessed Mr. Carney's claim and whether his condition satisfied the criteria set out in the relevant Statement of Principles.

The primary legal issue before the Tribunal was whether Mr. Carney’s lumbar spondylosis was caused by his service and thus eligible for pension benefits under the Veterans’ Entitlements Act 1986. The Tribunal needed to examine the evidence presented and assess whether it supported a finding that the condition met the criteria for a war-caused injury as outlined in the legislation and relevant case law.

The Tribunal found that the evidence supported a conclusion that Mr. Carney's lumbar spondylosis was indeed caused by his service. The Tribunal noted that the condition satisfied the relevant factor in the Statement of Principles concerning lumbar spondylosis. This determination was influenced by the precedents set in cases such as Re Robertson, Harris, Arnott, Mason, and Knight. Given the Tribunal's findings, it set aside the Repatriation Commission's decision and substituted it with a decision recognising Mr. Carney's condition as defence-caused, effective from 3 June 2001.

The final orders of the Tribunal were that the decision under review be set aside and replaced with a decision acknowledging Mr. Carney's lumbar spondylosis as a defence-caused condition, effective from the specified date. This ruling ensures that Mr. Carney is entitled to the relevant pension benefits under the Veterans’ Entitlements Act 1986.

Orders

Orders of the court

The Tribunal sets aside the decision under review and substitutes the decision that Mr Carney’s condition of lumbar spondylosis is defence caused with effect from 3 June 2001.

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		DOUGLAS LESLIE CARNEY