Conway and Repatriation Commission - [2005] AATA 467

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 467
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/955

VETERANS' APPEALS DIVISION )

Re GEOFFREY DAVID CONWAY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr S. Webb, Member
Date24 May 2005
PlaceCanberra

Decision
The decisions under review are set aside and in substitution thereof the Tribunal decides that:

1.    the Applicant's loss of sight is a war-caused injury,

2.    the Applicant is entitled to a disability pension at the special rate to be calculated from 16 July 2003,

3.    the matter is remitted to the Respondent to calculate the amount of disability pension that is payable in accordance with these reasons.

..............................................
Mr S. Webb
  Member

CATCHWORDS
VETERANS' ENTITLEMENTS - injury – loss of sight resulting from industrial accident – alcohol dependence and post traumatic stress disorder war-caused - reasonable hypothesis - statement of principles - loss of sight war-caused - decision set aside - rate of disability pension - 'alone' test - entitlement to disability pension at the special rate - date of effect - decision set aside
Veterans' Entitlements Act 1986 ss 6C, 7, 9, 15, 20, 23, 24, 120, 120A, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Hardman v Repatriation Commission [2005] FCAFC 83
Benjamin v Repatriation Commission (2001) 64 ALD 411
Hill v Repatriation Commission [2005] FCAFC 23
Repatriation Commission v Bendy (1989) 18 ALD 144
Chambers v Repatriation Commission (1995) 129 ALR 219
Flentjar v Repatriation Commission (1997) 26 AAR 93
Leane v Repatriation Commission [2004] FCAFC 83
Magill v Repatriation Commission [2002] FCA 244
REASONS FOR DECISION

24 May 2005 Mr S. Webb, Member

1.      This application by Geoffrey Conway is for review of two decisions made by the Repatriation Commission, and affirmed by the Veterans’ Review Board (“VRB”), whereby his claims for acceptance of loss of sight as a war-caused injury and for an increase in the rate of disability pension were rejected.
2. The matter came on for hearing before me in Canberra on 16-17 May 2005. Mr Conway was represented by Mr B. Winship. The Respondent was represented by Mr N. Bunn. Mr Conway, his wife Cheryl Conway, Dr L. Le Leu, Dr A. Dinnen and Dr R. Gertler gave oral evidence. At hearing, the Tribunal had before it documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Documents were tendered and labelled as exhibits during the hearing.
factual context
3.      Mr Conway was born on 19 December 1948.
4.      He served in the Australian Army between 9 July 1969 and 8 July 1971. He rendered operational service in Vietnam from 14 May 1970 to 19 May 1971.
5.      Mr Conway has the following accepted war-caused injuries and diseases:
·     Post traumatic stress disorder
·     Impotence
·     Bilateral sensori-neural hearing loss with tinnitus
·     Gastro-oesophageal reflux disease
·     Contact dermatitis
·     Alcohol dependence
·     Tinea.
6.      On 21 May 2003 Mr Conway lodged an application for an increase in the rate of his…

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 Conway and Repatriation Commission

Details

AGLC: Conway and Repatriation Commission [2005] AATA 467
Case: [2005] AATA 467
Decision Date: 24 May 2005

CaseChat Overview and Summary

Conway, an appellant, brought proceedings against the Repatriation Commission, the respondent, in the Federal Circuit Court of Australia, seeking a review of decisions made by the Commission regarding his eligibility for a disability pension. Conway's claim for a disability pension was based on his loss of sight, which he attributed to a war-caused injury, as well as alcohol dependence and post-traumatic stress disorder, both of which were also claimed to be war-caused. The central issue before the court was whether Conway's loss of sight was a war-caused injury, and if so, whether he was entitled to a disability pension at the special rate from a specific date.

The court examined the evidence and applicable legal principles, including the relevant provisions of the Veterans' Entitlements Act 1986 and precedents such as Repatriation Commission v Deledio, Hardman v Repatriation Commission, and others. The court found that the Commission had erred in its assessment by not considering whether Conway's loss of sight was a war-caused injury. The court held that there was a reasonable hypothesis that Conway's loss of sight was connected to his war service, and thus it should be considered as war-caused. Additionally, the court found that Conway was entitled to a disability pension at the special rate, applicable from 16 July 2003.

Following its findings, the court set aside the decisions of the Commission and ordered that Conway's loss of sight be recognised as a war-caused injury. The court also ruled that Conway was entitled to a disability pension at the special rate, effective from 16 July 2003. The matter was remitted to the Commission to recalculate the amount of disability pension payable to Conway in accordance with the court's decision.

Orders

Orders of the court

The decisions under review are set aside and in substitution thereof the Tribunal decides that:

1. the Applicant's loss of sight is a war-caused injury,

2. the Applicant is entitled to a disability pension at the special rate to be calculated from 16 July 2003,

3. the matter is remitted to the Respondent to calculate the amount of disability pension that is payable in accordance with these reasons.

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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VETERANS' APPEALS DIVISION		)
Re		GEOFFREY DAVID CONWAY