Chidley and Repatriation Commission [ 2011] AATA 905 - [2011] AATA 905

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 905
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0912 &

VETERANS' APPEALS DIVISION ) 2011/0913

Re JOHN CHIDLEY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr K S Levy RFD, Senior Member
Dr M Denovan, Member
Date16 December 2011
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

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

10. In deciding this matter we must also have regard to the provisions of the Act, in particular ss 120 and 120A, together with Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”).
11. Section 120(1) states:
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.

12. The Deledio case sets out the steps to be followed in applying the above sections[1]:
[1] Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 – 98.
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s196B (2) or (11).
…

3.If a SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s196B (2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4.The tribunal must then proceed to consider under s120 (1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail.…

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.

Keep reading for free

Create a free CaseChat account to read Chidley and Repatriation Commission [ 2011] AATA 905 and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] AATA 905
Decision Date: 16 December 2011

CaseChat Overview and Summary

The applicant, Mr Chidley, sought a review of a decision by the Repatriation Commission to deny his claims for a disability pension for carotid arterial disease and an extreme disablement adjustment. The dispute was heard by the Administrative Appeals Tribunal (AAT). Mr Chidley argued that his carotid arterial disease was caused by his service in the Royal Australian Navy and that he was entitled to the pension and adjustment. The Repatriation Commission rejected the claims, finding that the hypothesis linking the disease to his service was not reasonable and that the criteria for the extreme disablement adjustment were not satisfied.

The primary legal issue before the Tribunal was whether Mr Chidley's carotid arterial disease was caused by his operational service. The Tribunal considered whether the hypothesis presented by Mr Chidley was reasonable and whether the evidence supported a causal link between his service and the disease. Additionally, the Tribunal examined whether the criteria for an extreme disablement adjustment were met, given the severity of Mr Chidley's condition.

In reaching its decision, the Tribunal found that the hypothesis that Mr Chidley's carotid arterial disease was caused by his operational service was not reasonable. The Tribunal noted that the evidence did not support a causal link between his service and the disease. Furthermore, the Tribunal determined that the criteria for an extreme disablement adjustment were not satisfied, as the evidence did not demonstrate that Mr Chidley's condition met the required threshold for such an adjustment. Accordingly, the Tribunal affirmed the Repatriation Commission's decision.

The Tribunal's final order was that the decision under review be affirmed, meaning that Mr Chidley's claims for a disability pension and an extreme disablement adjustment were denied.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

VETERANS' APPEALS DIVISION		) 2011/0913
Re		JOHN CHIDLEY