CECIL GRETTON and REPATRIATION COMMISSION - [2009] AATA 908

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 908
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3642

VETERANS' APPEALS DIVISION )

Re CECIL GRETTON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member
Date26 November 2009
PlaceBrisbane

Decision
The Tribunal affirms the decisions under review.

..................[Sgd]................
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – operational service with Royal Australian Navy – application of Statements of Principles – diagnosis and clinical onset of malignant neoplasm of the colorectum – commencement of smoking on eligible war service – temporal but no causal relationship of smoking to service – a reasonable hypothesis of relevant relationship to service not raised – satisfied beyond reasonable doubt that malignant neoplasm of the colorectum not war-caused – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), ss 6C, 7, 9, 14, 120, 120A
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Bramwell v Repatriation Commission (1998) 51 ALD 56
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193
Repatriation Commission v Tuite (1993) 29 ALD 609
Repatriation Commission v Edwards, Federal Court, 3 September 1993, 612/1993
REASONS FOR DECISION

26 November 2009 Mr R G Kenny, Senior Member

BACKGROUND
1. Cecil Gretton served with the Royal Australian Navy (“the RAN”) from 30 June 1961 until 23 August 1968. On 27 February 2008, he lodged with the Repatriation Commission (“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (“the Act”), a claim for a disability pension for “adenocarcinoma of rectum” which he contended was related to his RAN service. On 19 May 2008, the respondent determined that the appropriate medical diagnosis in answer to the claim was malignant neoplasm of the colorectum. It also determined that the condition was not related to Mr Gretton’s RAN service. On 29 April 2009, the Veterans’ Review Board (“VRB”) affirmed the decision.
SERVICE, ISSUES AND LEGISLATION
2. Mr Gretton completed periods of eligible war service in the form of operational service as provided for in s 7 and s 6C of the Act, respectively, from 28 February 1962 until 16 March 1962; from 15 April 1963 until 8 May 1963; and from 10 May 1963 until 25 May 1963. During those periods, Mr Gretton served on HMAS Melbourne (the Melbourne) as part of the Far East Strategic Reserve.
3. Under s 9(1)(b) of the Act, a condition will be war-caused if it arose out of, or was attributable to, any eligible war service rendered. The standard of proof for determining diagnostic matters under the Act is provided for in s 120(4) thereof. This requires that such matters be determined to the decision-maker’s reasonable satisfaction.[1] For issues of causation for operational service, the standard of proof is set out in s 120(1) of the Act which reads:
Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of 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 CECIL GRETTON and REPATRIATION COMMISSION

Details

AGLC: CECIL GRETTON and REPATRIATION COMMISSION [2009] AATA 908
Case: [2009] AATA 908
Decision Date: 26 November 2009

CaseChat Overview and Summary

Cecil Gretton, a veteran, brought a case against the Repatriation Commission regarding the denial of his claim for veterans' entitlements. Gretton sought benefits for a malignant neoplasm of the colorectum, which he believed was caused by his operational service with the Royal Australian Navy. The Repatriation Commission reviewed his case and concluded that the neoplasm was not war-caused, leading to the denial of his claim. Gretton appealed this decision to the court.

The primary legal issue was whether Gretton's malignant neoplasm of the colorectum was caused by his service in the Royal Australian Navy, and thus qualified for veterans' entitlements. The court had to determine if there was a sufficient causal relationship between the onset of the disease and his service. Additionally, the court examined whether the Repatriation Commission's decision to deny the claim was legally sound and supported by the evidence presented.

The court reviewed the evidence and found that while Gretton began smoking during his service, which could be linked temporally to his condition, there was no evidence to suggest that his smoking was a result of his service. Furthermore, the court determined that there was no reasonable hypothesis suggesting a relevant relationship between his service and the onset of the malignant neoplasm. The court held that the Repatriation Commission's decision to deny the claim was supported by the evidence and that the malignant neoplasm was not war-caused. Therefore, the Tribunal affirmed the decisions under review.

The court concluded that the Repatriation Commission was correct in denying Gretton's claim for veterans' entitlements. The Tribunal upheld the Commission's decision, finding that the evidence did not establish a causal link between the malignant neoplasm of the colorectum and Gretton's service in the Royal Australian Navy.

Orders

Orders of the court

The Tribunal affirms the decisions 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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