Corney and Repatriation Commission - [2010] AATA 598

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 598
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5578

VETERANS' APPEALS DIVISION )

Re GREGORY THOMAS CORNEY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member K Bean
Mr S J Ellis AM (Member)
Date12 August 2010
PlaceAdelaide

Decision
The Tribunal varies the decision under review so as to add the following:

(a) the applicant does not suffer and has not at any relevant time suffered from the condition of chondromalacia patellae of his right knee, as defined in SoP No 34 of 2001; and
(b) although he suffers from the conditions of osteoarthritis and osteoarthrosis of his right knee as defined in SoP No 32 of 2005 and SoP No 14 of 2010, neither of those conditions is a defence-caused condition within the meaning of s 70 of the Veterans’ Entitlements Act 1986 (Cth).
The Tribunal otherwise affirms the decision under review.

..............................................
K BEAN
(Senior Member)

CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – osteoarthritis – osteoarthrosis – chondromalacia patellae – on the balance of probabilities the applicant does not suffer from chondromalacia patellae – the applicant does suffer from osteoarthritis/osteoarthrosis – however the SoPs in relation to those conditions are not satisfied – those conditions are not defence-caused – decision under review affirmed in substance.
Veterans’ Entitlements Act 1986 ss 13(1), 70(5), 120(4), 120B
Statement of Principles Instrument No 32 of 2005
Statement of Principles Instrument No 14 of 2010
Statement of Principles Instrument No 34 of 2001
Statement of Principles Instrument No 60 of 1997
Statement of Principles Instrument No 52 of 2010
Gorton v Repatriation Commission (2001) 63 ALD 723
Repatriation Commission v Budworth (2001) FCA 1421
REASONS FOR DECISION

12 August 2010   Senior Member K Bean

  Mr S J Ellis AM (Member)
1.      The applicant, Gregory Thomas Corney, served in the Australian Army from 25 May 1975 to 16 June 1978. He claims that during his Army service he injured his right knee twice, once during recruit training at Kapooka in July 1975 and again in August 1975 during recruit training at Singleton. He claims that his knee continued to trouble him throughout his Army service and after his discharge, and on 12 October 2007, he lodged a claim for a disability pension under the Veterans’ Entitlements Act 1986 (the VE Act) in relation to both knees.
2.      On 6 January 2008, the respondent (the Commission) accepted a diagnosis of osteoarthrosis affecting both knees, but rejected Mr Corney’s claim. On 25 January 2008, Mr Corney lodged an application with the Veterans’ Review Board (the VRB) seeking a review of the Commission’s determination. On 29 October 2008, the VRB affirmed the Commission’s decision, but also alluded to the possibility that Mr Corney may have chondromalacia patellae of his right knee.
3.      On 26 November 2008, Mr Corney lodged an application with this Tribunal seeking review of the Commission’s original decision as varied by the VRB.
4.      An initial hearing in this matter took place on…

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 Corney and Repatriation Commission

Details

AGLC: Corney and Repatriation Commission [2010] AATA 598
Case: [2010] AATA 598
Decision Date: 12 August 2010

CaseChat Overview and Summary

The case before the court involved the applicant, who sought to have his entitlement to certain veterans' benefits affirmed. The dispute centred around whether the applicant suffered from specific knee conditions, namely chondromalacia patellae, osteoarthritis, and osteoarthrosis, and whether these conditions were caused by his service in the defence force. The matter was ultimately decided by the Administrative Appeals Tribunal (AAT). The legal issues before the court were primarily concerned with the interpretation and application of the Veterans' Entitlements Act 1986 and various Statements of Principles (SoPs) relevant to the conditions in question. The court had to determine if the applicant's conditions met the criteria set out in the SoPs and if they were attributable to his service.

The court found that while the applicant did suffer from osteoarthritis and osteoarthrosis, these conditions were not caused by his service in the defence force, and thus did not qualify for the entitlements under the Act. Furthermore, the court concluded that the applicant did not suffer from chondromalacia patellae, a condition specifically defined in one of the SoPs. As such, the applicant's claims for benefits related to chondromalacia patellae were denied. The court's reasoning was based on the evidence presented and the statutory and SoPs criteria that needed to be satisfied for entitlement. The Tribunal ultimately affirmed the decision under review but made specific findings regarding the conditions that the applicant did not suffer from and those that were not caused by his service.

The Tribunal varied the decision under review to reflect that the applicant does not suffer from chondromalacia patellae and that osteoarthritis and osteoarthrosis, while present, are not defence-caused conditions. The Tribunal's decision maintained the overall outcome of the original decision but clarified the specific findings concerning the applicant's medical conditions and their relation to his service. This nuanced outcome ensures that the applicant's entitlements are assessed accurately based on the legal criteria and evidence provided.

Orders

Orders of the court

The Tribunal varies the decision under review so as to add the following:

(a) the applicant does not suffer and has not at any relevant time suffered from the condition of chondromalacia patellae of his right knee, as defined in SoP No 34 of 2001; and

(b) although he suffers from the conditions of osteoarthritis and osteoarthrosis of his right knee as defined in SoP No 32 of 2005 and SoP No 14 of 2010, neither of those conditions is a defence-caused condition within the meaning of s 70 of the Veterans’ Entitlements Act 1986 (Cth).

The Tribunal otherwise affirms the decision under review.

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.

VETERANS' APPEALS DIVISION		)
Re		GREGORY THOMAS CORNEY