Collier and Repatriation Commission - [2004] AATA 663

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 663
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2003/886

VETERANS' APPEALS DIVISION )

Re LOUIS COLLIER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
Senior Member Joan Dwyer
Mr C. Ermert, Member

Associate Professor J.H. Maynard, Member

Date
28 June 2004

Place

Melbourne

Decision
The Tribunal sets aside the decision of the Repatriation Commission made on 4 October 2002. In substitution the Tribunal decides:

i) Mr Collier’s osteoarthrosis of the knees is war-caused under s 9 of the Veterans Entitlements Act 1986 (“the Act”), with effect from 30 April 2002; and

ii) Mr Collier is entitled to pension at 100 per cent of the general rate under s 22 of the Act, with effect from 30 April 2002.

(sgd) Mrs Joan Dwyer
Senior Member

VETERANS’ APPEALS – whether veteran’s osteoarthritis of the knees war-caused under s 9 of the Veterans’ Entitlements Act 1986 – whether veteran had operational service under s 6A of the Veterans’ Entitlements Act 1986 – requirement that service be “continuous full-time service outside Australia” – veteran sailed from Sydney to Townsville on SS Katoomba – Tribunal to consider “essential character” of voyage – vessel faced a high probability that it would be attacked – finding that voyage was nine days and vessel sailed outside Australian waters except when leaving and arriving in port – voyage in area of enemy submarine activity – veteran travelling in company with Division – essential character of voyage was continuous full time service outside Australia – reasonable hypothesis raised – decision under review set aside.
Veterans’ Entitlements Act 1986, ss 5C, 6A, 7,9, 22.
Repatriation Commission v Kohn (1989) 87 ALR 511
Proctor v Repatriation Commission (1999) 54 ALD 343
Repatriation Commission v Deledio (1998) 49 ALD 193
REASONS FOR DECISION

28 June 2004             Senior Member J.R. Dwyer
            Mr C. Ermert, Member
            Associate Professor J.H. Maynard, Member

1. The issue in this hearing was whether Mr Collier’s condition of osteoarthrosis of the knees should be accepted as a war-caused disease under s 9 of the Veterans Entitlements Act 1986 (“the Act”).
2.       The respondent conceded at the commencement of the hearing that if the Tribunal found that Mr Collier had “operational service” under s 6A of the Act, then, applying Instrument No. 81 of 2001, the current Statement of Principles (“SoP”) for osteoarthrosis, where a veteran has operational service, Mr Collier would be entitled to have osteoarthrosis of the knees accepted as a war-caused disease. The respondent submitted that, if, on the other hand, Mr Collier’s service was “eligible service” but not operational service, then applying Instrument No 82 of 2001, which is the current SoP applicable where a veteran has eligible service, Mr Collier could not meet that SoP so as to allow the Tribunal to be satisfied that his osteoarthrosis of the knees is war-caused.
3. Mr Chancellor of Counsel appeared for Mr Collier. Mr Rudge, an advocate with the Department of Veterans Affairs (“DVA”) appeared for the Repatriation Commission (“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 Collier and Repatriation Commission

Details

AGLC: Collier and Repatriation Commission [2004] AATA 663
Case: [2004] AATA 663
Decision Date: 28 June 2004

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal was an appeal by Mr Collier against a decision of the Repatriation Commission. Mr Collier contended that his osteoarthrosis of the knees was caused by his war service and that he should be awarded a pension. The Repatriation Commission had found that Mr Collier's condition was not war-caused and therefore did not warrant a pension.

The central legal issue before the Tribunal was whether Mr Collier's osteoarthrosis of the knees was caused by his war service. The Tribunal needed to consider the evidence presented and determine if it was sufficient to establish a causal link between the condition and Mr Collier's service. Additionally, the Tribunal had to assess whether Mr Collier was entitled to a pension if his condition was found to be war-caused.

In its decision, the Tribunal found that the evidence provided by Mr Collier was sufficient to establish that his osteoarthrosis of the knees was caused by his war service. The Tribunal noted the medical evidence and Mr Collier's account of his service, and concluded that there was a causal link between his condition and his service. As a result, the Tribunal set aside the Repatriation Commission's decision and found that Mr Collier's condition was war-caused under section 9 of the Veterans Entitlements Act 1986. Consequently, Mr Collier was entitled to a pension at 100 per cent of the general rate under section 22 of the Act, effective from 30 April 2002.

Orders

Orders of the court

The Tribunal sets aside the decision of the Repatriation Commission made on 4 October 2002. In substitution the Tribunal decides:

i) Mr Collier’s osteoarthrosis of the knees is war-caused under s 9 of the Veterans Entitlements Act 1986 (“the Act”), with effect from 30 April 2002; and

ii) Mr Collier is entitled to pension at 100 per cent of the general rate under s 22 of the Act, with effect from 30 April 2002.

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.

Tribunal	Senior Member Joan Dwyer Mr C. Ermert, Member Associate Professor J.H. Maynard, Member
Date	28 June 2004
Place	Melbourne
Decision	The Tribunal sets aside the decision of the Repatriation Commission made on 4 October 2002. In substitution the Tribunal decides: i) Mr Collier’s osteoarthrosis of the knees is war-caused under s 9 of the Veterans Entitlements Act 1986 (“the Act”), with effect from 30 April 2002; and ii) Mr Collier is entitled to pension at 100 per cent of the general rate under s 22 of the Act, with effect from 30 April 2002.