Clarke and Repatriation Commission - [2011] AATA 901

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 901
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2856

VETERANS’ AFFAIRS DIVISION )

Re EDWARD CLARKE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Professor RM Creyke, Senior Member
Date 16 December 2011
Place Moruya, NSW; decision delivered in Canberra

Decision
The decision under review is affirmed

….......................[sgd]................................
Professor RM Creyke, Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – disability pension – eligible defence service – whether osteoarthrosis both ankles and knees defence-caused – clinical onset– Statement of Principles, Instrument No 12 of 2010, Osteoarthritis – Instrument No 32 of 2005, Osteoarthrosis
Veterans’ Entitlements Act 1986 (Cth) ss 5D, 5Q, 68, 70, 120, 120B.
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Gorton (2001) 65 ALD 609
Repatriation Commission v Law (1980) 31 ALR 140
REASONS FOR DECISION
16 December 2011              Professor RM Creyke, Senior Member
1.      Mr Edward Clarke, who is 77 years of age, served in the Royal Australian Air Force for two periods: from 12 November 1951 to 11 November 1957; and from 12 December 1958 to 1 March 1978. The period from 7 December 1972 to 1 March 1978 was eligible defence service under the Veterans’ Entitlements Act 1986 (Cth) (Act) section 68(1).
2.      On 23 September 2008, Mr Clarke applied for pension in respect of a number of conditions including osteoarthrosis of both ankles and both knees. On 27 April 2009, the Repatriation Commission (Commission) rejected the claim.
3.      On review on 11 May 2010, the Veterans’ Review Board affirmed the decision of the Commission.
4.      On 12 July 2010, Mr Clarke sought further review by the Tribunal. The matter was heard in Moruya, New South Wales on 29 November 2011. The decision was delivered in Canberra, ACT.
Background
5.      Mr Clarke said that during his service in the period 1958 and 1978, between August 1972 and February 1973, he was posted to France as part of a team to investigate whether radar systems made in France would be suitable for Sydney airport. For the most part he was based at the premises of the Australian Air Attaché in Paris.
6.      In December 1972 Mr Clarke, who was a Warrant Officer, and two other non-commissioned officers, travelled to the city of Brest to view the factory where the radar system was produced.
7.      On return from Brest, Mr Clarke was travelling on a small 2 engine plane, which he observed as being overloaded. The weather was cloudy, cold, and windy, and there was sleet. During take-off, the plane had reached 200 km/hour when it hit a wet patch, slewed off the runway, ploughed through a water canal or trench, and ended up in an adjacent field some 100 yards from the tarmac. The incident caused Mr Clarke and other passengers to be flung around.
8.      Mr Clarke was strapped in, but he was thrown forward and ended up with his knees hard up against the seat in front of…

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 Clarke and Repatriation Commission

Details

AGLC: Clarke and Repatriation Commission [2011] AATA 901
Case: [2011] AATA 901
Decision Date: 16 December 2011

CaseChat Overview and Summary

The matter before the Court involved Clarke, a former member of the Australian Defence Force, and the Repatriation Commission. Clarke sought a determination regarding his eligibility for a disability pension, specifically in relation to osteoarthrosis affecting both his ankles and knees, which he claimed was caused by his defence service. The Court of Appeal was tasked with reviewing a decision by the Administrative Appeals Tribunal (AAT) which had upheld the Commission's refusal of Clarke's claim.

The legal issues before the Court centred on the causal link between Clarke's service and his osteoarthrosis, and whether it met the criteria outlined in the relevant legislative framework and Instruments, namely the Veterans' Entitlements Act 1986 and the Statements of Principles concerning osteoarthritis and osteoarthrosis. Specifically, the Court needed to determine whether the osteoarthrosis in Clarke's ankles and knees was both caused by his service and had a clinical onset during his service. The Court also considered whether the AAT had appropriately applied the law in making its decision.

The Court found that the AAT had correctly applied the principles of statutory interpretation and the relevant legislative provisions in reaching its decision. The Court held that the evidence did not establish that Clarke's osteoarthrosis was caused by his service or that it had a clinical onset during his service. The Court emphasised the importance of clinical onset in the context of service-connected conditions and noted that the AAT had appropriately weighed the evidence and made findings in accordance with the law. As a result, the Court found no error in the AAT's decision and affirmed the decision under review.

Orders

Orders of the court

The decision under review is affirmed

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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