DAVID GILKINSON and REPATRIATION COMMISSION - [2012] AATA 467

[2012] AATA 467

Division VETERANS’ APPEALS DIVISION

File Number(s)

N2006/0296

Re

DAVID GILKINSON

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal
Mr RP Handley, Deputy President
Dr H Haikal-Mukhtar, Member

Date 24 July 2012

Place Sydney
The decision of the Repatriation Commission dated 30 March 2005 refusing Mr Gilkinson’s claim for a disability pension in respect of sleep apnoea is set aside and a decision substituted that Mr Gilkinson’s sleep apnoea is war-caused. The date of effect of this decision in terms of the payment of pension is 14 June 2004. The matter is remitted to the Repatriation Commission to determine the rate of pension payable to Mr Gilkinson.
.............[sgd]...........................................................
Mr RP Handley, Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service – whether sleep apnoea war-caused – decision under review set aside
LEGISLATION
Veterans’ Entitlements Act 1986 ss 5D, 6C, 9, 13, 196B

Statement of Principles concerning Sleep Apnoea, Instrument No.13 of 2005
CASES
Gilkinson v Repatriation Commission (2008) 104 ALD 406; [2008] FCA 1441

Gilkinson v Repatriation Commission (2011) 197 FCR 102; [2011] FCAFC 133
Kaluza v Repatriation Commission [2010] FCA 1244
Re Gilkinson and Repatriation Commission [2008] AATA 364
Re Gilkinson and Repatriation Commission [2010] AATA 23
Repatriation Commission v Crane (2004) 81 ALD 608
Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Knight [2012] FCAFC 83
Repatriation Commission v Stoddart (2003) 134 FCR 392
REASONS FOR DECISION
Mr RP Handley, Deputy President
Dr H Haikal-Mukhtar, Member
24 July 2012

The Federal Court set aside the Tribunal’s previous decision in this matter and remitted it to the Tribunal to be decided again according to law either with or without the hearing of further evidence. The proceedings concern Mr Gilkinson’s claim for a pension in respect of sleep apnoea, a condition which he contends is “war-caused” in terms of the relevant provisions of the Veterans’ Entitlements Act 1986 (the Act).
BACKGROUND
Mr Gilkinson (the Applicant) was born in 1949 and is now aged 63. He joined the Navy on 10 July 1965, aged 16, and was discharged on 9 July 1977, having served for 12 years. From 15 February 1970 to December 1972, Mr Gilkinson served on HMAS Sydney during which time he had ten periods of “operational service” on voyages between Australia and Vietnam, as follows:
16 February 1970 to 5 March 1970
21 October 1970 to 12 November 1970
15 February 1971 to 4 March 1971
26 March 1971 to 8 April 1971
13 May 1971 to 1 June 1971
20 September 1971 to 16 October 1971
26 October 1971 to 18 November 1971
24 November 1971 to 17 December 1971
14 February 1972 to 9 March 1972
1 November 1972 to 30 November 1972
While not relevant for these proceedings, Mr Gilkinson also had “defence service” from 7 December 1972 to 9 July 1977.
The Repatriation Commission (the Commission) notes that Mr Gilkinson’s operational service was not continuous and there were significant gaps between the periods of operational service: for…

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 DAVID GILKINSON and REPATRIATION COMMISSION

Details

AGLC: DAVID GILKINSON and REPATRIATION COMMISSION [2012] AATA 467
Case: [2012] AATA 467
Decision Date: 24 July 2012

CaseChat Overview and Summary

The case of David Gilkinson v Repatriation Commission concerns Mr Gilkinson's claim for a disability pension in respect of sleep apnoea, which he contends was caused by his operational service during the Vietnam War. The Federal Court was tasked with determining whether the Tribunal's decision to deny the claim was legally sound. The primary issue before the Court was whether the Tribunal correctly applied the law in rejecting Mr Gilkinson's assertion that his sleep apnoea was war-caused. Specifically, the Court examined whether the Tribunal erred in failing to sufficiently consider expert evidence and relevant factors that could support Mr Gilkinson's claim.

The Court found that the Tribunal did not properly address the evidence and arguments presented, particularly those related to Mr Gilkinson's lifestyle and activities during his service, which could have contributed to the development of sleep apnoea. Rares J held that the Tribunal had to make a finding of fact regarding whether the hypothesis that shift work and other factors during operational service contributed to the condition had been disproven beyond reasonable doubt. The Court determined that the Tribunal's decision was flawed because it did not adequately consider these factors and thus did not make the necessary findings.

Consequently, the Federal Court set aside the Tribunal's decision and remitted the matter back to the Tribunal for reconsideration, with instructions to properly consider all relevant evidence and arguments. The Court's decision recognised that the Tribunal had not correctly applied the law in evaluating Mr Gilkinson's claim, particularly in its failure to adequately address the factors that could support a causal link between his operational service and the development of sleep apnoea. The Court also substituted a decision that Mr Gilkinson's sleep apnoea is war-caused, effective from 14 June 2004, and directed the Commission to determine the rate of pension payable to Mr Gilkinson.

Orders

Orders of the court

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Background

Background to the litigation

The Federal Court set aside the Tribunal’s previous decision in this matter and remitted it to the Tribunal to be decided again according to law either with or without the hearing of further evidence. The proceedings concern Mr Gilkinson’s claim for a pension in respect of sleep apnoea, a condition which he contends is “war-caused” in terms of the relevant provisions of the Veterans’ Entitlements Act 1986 (the Act). BACKGROUND Mr Gilkinson (the Applicant) was born in 1949 and is now aged 63. He joined the Navy on 10 July 1965, aged 16, and was discharged on 9 July 1977, having served for 12 years. From 15 February 1970 to December 1972, Mr Gilkinson served on HMAS Sydney during which time he had ten periods of “operational service” on voyages between Australia and Vietnam, as follows:16 February 1970 to 5 March 197021 October 1970 to 12 November 197015 February 1971 to 4 March 197126 March 1971 to 8 April 197113 May 1971 to 1 June 197120 September 1971 to 16 October 197126 October 1971 to 18 November 197124 November 1971 to 17 December 197114 February 1972 to 9 March 19721 November 1972 to 30 November 1972While not relevant for these proceedings, Mr Gilkinson also had “defence service” from 7 December 1972 to 9 July 1977. The Repatriation Commission (the Commission) notes that Mr Gilkinson’s operational service was not continuous and there were significant gaps between the periods of operational service: for example, between 5 March 1970 and 21 October 1970 (seven and a half months), 12 November 1970 to 15 February 1971 (three months), 1 June 1971 and 29 September 1971 (nearly four months), and between 9 March 1972 and 1 November 1972 (nearly eight months). On 14 September 2004, Mr Gilkinson lodged a claim for pension in respect of sleep apnoea and for an increase in the rate of his pension based on his previously accepted disabilities. On 30 March 2005, a delegate of the Commission refused his claim, a decision that was affirmed by the Veterans’ Review Board (VRB). Mr Gilkinson applied for a review of this decision by the Tribunal which, on 6 May 2008, affirmed the decision: Re Gilkinson and Repatriation Commission [2008] AATA 364. The Federal Court then set aside this decision and remitted the matter to the Tribunal to be determined in accordance with the law and the reasons of the Court: Gilkinson v Repatriation Commission (2008) 104 ALD 406; [2008] FCA 1441. Rares J said at [30]:It [the Tribunal] did not advance a reason for negating beyond reasonable doubt Dr Volker’s hypothesis that shift work could have caused or contributed to Mr Gilkinson’s eating or not exercising. Instead, the tribunal simply stated a conclusion which indirectly may have rejected the hypothesis. But, it had to make a finding of fact as to whether that hypothesis had been disproved beyond reasonable doubt. Since Dr Volker put forward the hypothesis that shift work contributed to the eating disorder, the tribunal had to make findings which negated any causal effect of shift work on the obesity of Mr Gilkinson first observed in 1971 after he had completed 92 days of operational service for his country.His Honour found that the Tribunal made an error of law by not considering the correct questions and failing to consider a relevant consideration.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the light of Professor Gill’s and Dr Volker’s opinions referred to above and Mr Gilkinson’s account of a lack of physical activity during operational service, of his excessive alcohol intake and the impact of his rostered fuel oil pumping duties, the Tribunal cannot be satisfied beyond reasonable doubt that factor 5(b), “being obese at the time of clinical onset of sleep apnoea” as a result of shift work, lack of physical activity and excessive alcohol consumption during operational service, is negated. Thus, in relation to factors 5(a) and (b) of SoP No 13, the Tribunal is not satisfied beyond reasonable doubt that the hypothesis that Mr Gilkinson’s sleep apnoea is war-caused is negated.DECISION The decision of the Repatriation Commission dated 30 March 2005 refusing Mr Gilkinson’s claim for a disability pension in respect of sleep apnoea – is set aside and a decision substituted that Mr Gilkinson’s sleep apnoea is war-caused. The date of effect of this decision in terms of the payment of pension is 14 June 2004. The matter is remitted to the Commission to determine the rate of pension payable to Mr Gilkinson.

Ratio Decidendi

Legal Principle Established

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Division	VETERANS’ APPEALS DIVISION
File Number(s)	N2006/0296
Re	DAVID GILKINSON
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

Tribunal	Mr RP Handley, Deputy President Dr H Haikal-Mukhtar, Member
Date	24 July 2012
Place	Sydney