Conaghan and Repatriation Commission - [2011] AATA 127

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 127
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4237

VETERANS' APPEALS DIVISION )

Re MARK CONAGHAN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member and
Dr G Maynard, Brigadier (Rtd), Member
Date25 February 2011
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

..................[SGD]............................
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – Benefits and entitlements – Service pension – Operational service with Australian Army – Diagnosis of loss of left kidney and loss of left adrenal gland – No relevant Statements of Principles – Reasonable hypothesis disproved beyond reasonable doubt –- Decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 119, 120, 120A, 175
Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 29
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Johnston v The Commonwealth [1982] HCA 54; (1982) 150 CLR 331.
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Re Flett and Repatriation Commission (2000) AATA 469
Re Petty and Repatriation Commission (1990) 19 ALD 573
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION

25 February 2011 Mr R G Kenny, Senior Member and
Dr G Maynard, Brigadier (Rtd), Member

BACKGROUND
1. Mark Conaghan served with the Australian Army (“the army”) as a national serviceman from 29 January 1969 until 28 January 1971. On 10 August 2009, he lodged with the Repatriation Commission (“the respondent”) an informal claim for a disability pension for “loss of left kidney” which he contended was related to his army service. He followed that with a formal claim, in accordance with s 14 of the Veterans’ Entitlements Act 1986 (“the Act”), on 28 August 2009. On 24 November 2009, the respondent rejected the claim and, on 14 July 2010, the Veterans’ Review Board (“the Board”) affirmed that decision.
SERVICE, ISSUES AND LEGISLATION
2. Mr Conaghan completed a period of eligible war service in the form of operational service as provided for in s 7 and s 6C of the Act, respectively, in South Vietnam from 15 October 1969 until 15 October 1970.
3. A condition is war-caused if one of the components of s 9 of the Act is met. In this matter, the relevant provision, relied upon by Mr Harding for the applicant, is s 9(1)(e)(ii) of the Act pursuant to which liability arises if:
(e) the injury suffered, or disease contracted, by the veteran:
(i) …; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered…

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 Conaghan and Repatriation Commission

Details

AGLC: Conaghan and Repatriation Commission [2011] AATA 127
Case: [2011] AATA 127
Decision Date: 25 February 2011

CaseChat Overview and Summary

Conaghan sought review of a decision by the Repatriation Commission regarding his eligibility for a service pension. The dispute centred on whether the applicant's service in the Australian Army resulted in the loss of his left kidney and left adrenal gland, conditions that could entitle him to a service pension. The case was heard by the Administrative Appeals Tribunal (AAT).

The primary legal issue before the Tribunal was whether the applicant could establish a reasonable hypothesis that his military service led to the diagnosed medical conditions, as required by the Veterans' Entitlements Act 1986. This hinged on whether the Tribunal was satisfied that the hypothesis was not disproven beyond reasonable doubt. The Tribunal needed to assess the medical evidence and the applicant's service records to determine if the conditions arose due to his military service.

The Tribunal considered the evidence presented, including medical reports and statements from the applicant and his medical practitioners. It concluded that the applicant had not provided sufficient evidence to establish a reasonable hypothesis that his military service caused the loss of his left kidney and left adrenal gland. The Tribunal found that the medical evidence did not support the hypothesis, and the applicant's claims were not substantiated. Consequently, the Tribunal affirmed the Repatriation Commission's decision to deny the applicant a service pension.

The Tribunal's decision was based on the lack of sufficient evidence to establish the required causal link between the applicant's military service and the diagnosed medical conditions. The Tribunal found that the hypothesis was disproven beyond reasonable doubt, and thus, the applicant was not entitled to a service pension. The Tribunal's decision was upheld, and the applicant's claim for a service pension was denied.

Orders

Orders of the court

The Tribunal affirms the decision 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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