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Collins and Repatriation Commission

Collins and Repatriation Commission

Case [2001] AATA 744 27 August 2001

Jurisdiction

Statutory Interpretation

Reasonable Hypothesis Test

Statements of Principles

Veterans' Affairs

Type to search within this case.

CATCHWORDS – VETERANS' AFFAIRS

Acts Interpretation Act 1901 – ss 46A, 48, 48A, 48B, 49, 50
Veterans' Entitlements Act 1986 – ss 5AB, 5D, 9, 13, 14, 17, 18, 19, 20, 120, 120A, , 135, 157, 175, 177, 196, 196B, 196C, 196D, 196E, 196F, 196G, 196W, 196Y, 196Z

Benjamin v Repatriation Commission [2001] FCA 317
Budworth v Repatriation Commission [2001] FCA 317
Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) 109 ALR 30; (1992) 66 ALJR 753; (1992) 29 ALD 1; (1992) 16 AAR 1
Byrnes v Repatriation Commission (1993) 177 CLR 564; (1993) 116 ALR 210; (1993) 67 ALJR 805; (1993) 30 ALD 1; (1993) 18 AAR 1
Cowie v Repatriation Commission [1999] AATA 334 (Unreported) Deputy President Forgie, Brigadier Brumfield and Dr Morley (Members), 19 May 1999
Deledio v Repatriation Commission (1997) 47 ALD 261; (1997) 25 AAR 396
Meehan v Repatriation Commission [2001] FCA 597, (Unreported, Wilcox J, 25 May, 2001)
Merrell and Repatriation Commission [2001] AATA 413 (Unreported, Deputy President Forgie, 17 May, 2001)
Ogston and Repatriation Commission (1999) 86 FCR 578; (1999) 56 ALD 789; (1999) 29 AAR 89
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Repatriation Commission v Keeley (2000) 98 FCR 108; (2000) 60 ALD 401; (2000) 31 AAR 150
Repatriation Commission v Thompson [2001] FCR 341 (Unreported, Drummond, Whitlam and Emmett JJ, 2 April 2001)

DECISION AND REASONS FOR DECISION [2001] AATA 744

ADMINISTRATIVE APPEALS TRIUBNAL     )
  )          Q2000/856
GENERAL ADMINISTRATIVE DIVISION      )

Re JOHN COLLINS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss S A Forgie (Deputy President)

Date 27 August, 2001

Place Brisbane

DecisionI remit the matter to the Commission to determine the applicant's claim in accordance with these reasons.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 15 September, 2000, the applicant, Mr John George Collins, applied for review of three decisions. The first of those decisions was a decision that had been substituted by the Veterans' Review Board ("VRB") on 5 March, 1999 in place of a decision of the respondent, the Repatriation Commission ("the Commission") dated 21 April, 1997. The decision substituted by the VRB accepted Mr Collins' claim that his condition of polycythaemia vera was war-caused within the meaning of s. 9 of the Veterans' Entitlements Act 1986 ("the Act"), found that the Commission was liable to pay pension for any incapacity arising from that condition from and including 23 July, 1996 and remitted the matter to the Commission to assess the rate of that pension.

The remaining two decisions of which Mr Collins sought review had been made by the Commission on 26 November, 1999 and 16 May, 2000 respectively and had been affirmed by a decision of the VRB dated 31 July, 2000. The earlier decision increased Mr Collins' pension to the Extreme Disablement Adjustment Rate ("EDA") with effect from 16 April, 1999. The later decision refused Mr Collins' claim that his condition…

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 Collins and Repatriation Commission

Details

AGLC: Collins and Repatriation Commission [2001] AATA 744
Case: [2001] AATA 744
Decision Date: 27 August 2001

CaseChat Overview and Summary

The case involves John George Collins, who applied for a review of three decisions made by the Repatriation Commission concerning his claim for a pension related to his condition of polycythaemia vera. The Administrative Appeals Tribunal (AAT) was tasked with determining the proper interpretation of Statement of Principle 78 of 1999 (SoP 78) and whether it narrows the basis on which Collins could establish that his condition was war-caused. The central issue was whether SoP 78 requires that the material must indicate Collins' inability to obtain appropriate clinical management for his condition, which he suffered or contracted before or during (but not arising out of) his operational service, where his inability materially contributed to or aggravated his polycythaemia vera.

The AAT considered the submissions from both parties, focusing on the language used in clauses 5 and 6 of SoP 78. The Tribunal concluded that clause 5 stipulates the factor that must "as a minimum" exist before a reasonable hypothesis can be said to be raised, and SoP 78 admits of factors beyond the minimum. The Tribunal found that if the onset of Collins' polycythaemia vera can be traced to, or fairly be said to be connected with, his relevant service, then his subsequent failure or inability to obtain appropriate clinical management for his condition must be regarded as not being inconsistent with SoP 78.

The AAT decided to remit the matter back to the Commission to determine Collins' claim in accordance with the Tribunal's reasons. The decision highlighted the importance of ensuring that any hypothesis connecting the injury or disease with the circumstances of the service is consistent with the applicable SoP and that the factors stipulated in the SoP must be considered in determining the claim.

Orders