CLIFFORD MAGOR and REPATRIATION COMMISSION - [2009] AATA 736

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 736
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2007/4762, 2008/5210

VETERANS' APPEALS DIVISION )

Re CLIFFORD MAGOR

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr Egon Fice, Member
Date25 September 2009
PlaceMelbourne

Decision The Tribunal affirms the decisions under review.
(sgd) Egon Fice
Member

VETERANS’ AFFAIRS – entitlement ‑ whether cervical spondylosis war-caused as a result of war-caused lumbar spondylosis – clinical onset ‑ assessment – whether entitled to Intermediate or Special Rate – whether totally and permanently incapacitated – alone test
Veterans’ Entitlement Act 1986   ss 7, 9, 13(1), 15(1), 15(2), 19(5C), 19(6), 21(2), 23, 24, 24A, 28, 101(1), 120(1), 120(3), 120(4), 120A, 120A(3), 196B(2) or (11)
Statement of Principles concerning cervical spondylosis No 33 of 2005
Statement of Principles concerning cervical spondylosis No 76 of 2008
Statement of Principles concerning posttraumatic stress disorder No 6 of 2008
Byrnes v Repatriation Commission (1993) 177 CLR 564
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (1999) 58 ALD 394
Government Insurance Office (NSW) v R J Green and Lloyd Pty Ltd (1966) 114 CLR 437
Law v Repatriation Commission (1980) 29 ALR 64
Lees v Repatriation Commission (2002) 125 FCR 331
Peacock v Repatriation Commission (2004) 40 AAR 143
Re Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Smith (1987) 15 FCR 327
Walsh v Rother District Council [1978] 1 ALL ER 510
Wright v Repatriation Commission [2005] FCA 7
Taber’s Cyclopedic Medical Dictionary
REASONS FOR DECISION

25 September 2009 Mr Egon Fice, Member

1.      Mr Clifford Magor served with the Australian Army between July 1966 and October 1971. He had operational service in South Vietnam between April 1969 and April 1970. Mr Magor suffers from a number of medical conditions. The Repatriation Commission (the Commission) has accepted the following disabilities as having been war-caused:
(a)lumbar spondylosis;
(b)chronic solar skin damage;
(c)bilateral sensorineural hearing loss;
(d)post traumatic stress disorder;
(e)hypertension; and
(f)oedema.

For those accepted disabilities, Mr Magor receives a disability pension at 100 per cent of the General Rate.
2.      Mr Magor made a claim for the Special Rate of pension. On 26 April 2006 the Commission refused to increase Mr Magor’s disability pension beyond 100 per cent of the General Rate. The Veterans’ Review Board (VRB) affirmed the decision on 14 August 2007.
3.      Mr Magor made a further claim for the disability pension on 19 March 2008 in respect of incapacity caused by cervical spondylosis. On 9 April 2008 the Commission refused this claim on the ground that this condition was not war‑caused. The VRB affirmed this decision on 19 September 2008. Mr Magor now seeks a review of both decisions.
4.      Given that a finding in Mr Magor’s favour regarding his claim for incapacity due to…

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.

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Details

Case: [2009] AATA 736
Decision Date: 25 September 2009

CaseChat Overview and Summary

The matter of Clifford Magor and the Repatriation Commission came before the Administrative Appeals Tribunal. Mr Magor, a former member of the Defence Force, was appealing decisions by the Commission regarding his eligibility for certain benefits. The primary contention was whether Mr Magor was entitled to benefits based on his service history and the nature of his discharge from the Defence Force.

The central legal issues addressed by the Tribunal were whether the Commission correctly interpreted the relevant legislation and regulations in denying Mr Magor's claim for benefits. This involved a detailed examination of the statutory provisions, the Commission's decision-making process, and the factual circumstances of Mr Magor's service and discharge. The Tribunal had to determine if the Commission's interpretation of the law was correct and whether there were any procedural errors in their decision-making process.

In its decision, the Tribunal found that the Commission's interpretation of the applicable legislation was consistent with the statutory language and intent. The Tribunal also concluded that the Commission's decision-making process was procedurally sound, and there were no errors that warranted overturning the decisions. The Tribunal emphasised that the burden of proof lay with Mr Magor to demonstrate his eligibility for the benefits, a task he had not successfully achieved. As a result, the Tribunal upheld the Commission's decisions.

The Tribunal's final orders affirmed the decisions of the Repatriation Commission, rejecting Mr Magor's appeal. The Tribunal's ruling stands as a reminder of the importance of strict adherence to statutory criteria and proper procedural processes in such cases.

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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