Charlton and Repatriation Commission - [2003] AATA 701

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 701
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/983

VETERANS' APPEALS DIVISION
)

Re ALEC CHARLTON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr IR Way, Member
Date25 July 2003
PlaceBrisbane

Decision
(a)      The Tribunal sets aside the decision under the review and in substitution therefor determines that Alex Charlton suffers from   war-caused osteoarthrosis of the left knee and war-caused osteoarthrosis of the right knee. The Tribunal notes that the earliest date of effect of this decision is 9 April 2002.

(b)      The Tribunal remits the matter to the respondent for assessment of pension payable to the applicant in respect of his war-caused knee conditions.

(Sgd) IR Way
  Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – osteoarthrosis of left and right knee – whether conditions caused by war service – whether reasonable hypothesis can be established connecting conditions to applicant’s war service
Veterans’ Entitlements Act 1986
Repatriation Commission v Deledio (1998) 49 ALD 193
Byrnes v Repatriation Commission (1993) 177 CLR 564
Hill v Repatriation Commission [2001] FCA 1775
REASONS FOR DECISION

25 July 2003 Mr IR Way, Member

1.      This is an application by Alec Charlton (“the applicant”) for review of a decision of the Repatriation Commission dated 8 August 2002, and affirmed by the Veterans’ Review Board on 21 October 2002, which determined that the applicant’s osteoarthrosis of the left knee and osteoarthrosis of his right knee are not war-caused.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and further documentary evidence as follows:
§Exhibit A1          Statement of Applicant dated 20 December 2002
§Exhibit A2          Report of Dr J Pentis dated 18 February 2003

3.      The applicant gave oral evidence and he was represented by Ms K O’Gorman of Counsel, instructed by Gilshenan and Luton. The respondent was represented by Mr M Smith, Departmental Advocate.
4.      The applicant was born on 6 March 1925 and saw operational service in the Royal Australian Navy from 15 October 1942 to 13 May 1946 and from 14 December 1946 to 13 December 1948.
5.      The applicant has the following accepted service-related disabilities:
§Spondylolisthesis L4-5
§Bilateral sensori-neural hearing loss with tinnitus

6. His rejected non-service-related disabilities which are the subject of this appeal are:
§Osteoarthrosis of the left knee
§Osteoarthrosis of the right knee

7. The issue before the Tribunal is whether the applicant’s osteoarthrosis of his left knee and right knee are war-caused within the meaning of the Veterans’ Entitlements Act 1986 (“the Act”).
8. The applicant claims his knee conditions are related to his war service and has put forward the hypothesis that he suffered a trauma to his knees while he was rendering operational service as a member of the ship’s crew of the Corvette HMAS Warrnambool when that ship, on 13 September 1947, whilst engaged in minesweeping duties on the Barrier Reef north of Cairns, struck a mine and was sunk.
Legislative…

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 Charlton and Repatriation Commission

Details

AGLC: Charlton and Repatriation Commission [2003] AATA 701
Case: [2003] AATA 701
Decision Date: 25 July 2003

CaseChat Overview and Summary

The dispute in Charlton and Repatriation Commission involved Alex Charlton, who sought a pension on the basis that he suffered from osteoarthrosis of both knees caused by his war service. The matter was heard by the Administrative Appeals Tribunal, which was required to determine whether Charlton’s conditions were attributable to his war service and if a reasonable hypothesis could connect the conditions to his service. The Repatriation Commission had previously rejected Charlton’s claim, but the Tribunal reviewed this decision.

The key legal issues before the Tribunal were whether Charlton's knee conditions were caused by his war service and whether there was a reasonable hypothesis connecting the conditions to his service. This involved interpreting the Veterans' Entitlements Act 1986 and considering relevant case law, such as Byrnes v Repatriation Commission and Hill v Repatriation Commission. The Tribunal had to assess the evidence presented and determine if the conditions met the statutory criteria for being war-caused.

The Tribunal found that the evidence supported a conclusion that Charlton's osteoarthrosis of both knees was caused by his war service. It held that there was a reasonable hypothesis connecting the conditions to his service, based on the medical evidence and the nature of his duties during service. The Tribunal set aside the earlier decision of the Commission and determined that Charlton's conditions were indeed war-caused. Consequently, the matter was remitted to the Commission to reassess the pension payable to Charlton for his knee conditions.

The Tribunal's final orders were that the decision of the Commission was set aside, and in its place, it was determined that Charlton's conditions were war-caused. The earliest effective date of this decision was noted as 9 April 2002. The matter was then remitted to the Commission for reassessment of the pension payable to Charlton for his war-caused knee conditions.

Orders

Orders of the court

(a) The Tribunal sets aside the decision under the review and in substitution therefor determines that Alex Charlton suffers from war-caused osteoarthrosis of the left knee and war-caused osteoarthrosis of the right knee. The Tribunal notes that the earliest date of effect of this decision is 9 April 2002.

(b) The Tribunal remits the matter to the respondent for assessment of pension payable to the applicant in respect of his war-caused knee conditions.

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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