Drew and Repatriation Commission - [2002] AATA 832

DECISION AND REASONS FOR DECISION [2002] AATA 832

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1138

VETERANS' APPEALS DIVISION          )
           Re      KENNETH EDDLESTON DREW
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date24 September 2002
PlaceSydney

Decision      The tribunal sets aside the decision under review and substitutes its own decision that Mr Drew's disease of osteoarthrosis of the right hip ("the disputed disease") is a war-caused disease, with effect from 25 August 1994 and that Mr Drew qualifies for payment of Disability Pension at 90% of the general rate with effect from the first pension payday following the last pension payday on which the disputed disease was an accepted disability.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension – Australian mariner – operational service – whether mariner was employed in Australia immediately before and immediately after employment outside Australia – osteoarthrosis of hip – whether a war-caused disease – trauma to the right hip
WORD AND PHRASES – "immediately"

Veterans' Entitlements Act 1986 ss 5C(1) ("Australian mariner"), 6A(1) (Item 1, column 3(c)), 6B(1), 7(1)(a), (e), 21(1), 120(1), (3), 120A, 196B, 196D
Seaman's War Pensions and Allowances Act 1940

Statement of Principles 81/2001 concerning osteoarthrosis

Bayley, Commissioner for Superannuation v (1979) 41 FLR 385
Bull v Repatriation Commission (2001) 66 ALD 271
Deledio, Repatriation Commission v (1998) 49 ALD 193
Gorton, Repatriation Commission v (2001) 33 AAR 370
Williams, Repatriation Commission v [2001] FCA 1195
Wood and Commissioner for Superannuation, Re (1989) 9 AAR 528

REASONS FOR DECISION

24 September 2002 Mr M J Sassella, Senior Member

THE APPLICATION

This is an application by Kenneth Eddleston Drew ("the applicant"), born 14 February 1941 (T9), to the Administrative Appeals Tribunal ("the tribunal") for review of a decision of the Veterans' Review Board ("the VRB") dated 9 May 2000 (T18) which affirmed a decision of the Repatriation Commission dated 2 July 1998 (T2). In the decision under review the respondent decided that Mr Drew's osteoarthrosis of the right hip was not war-caused and that Mr Drew was qualified for a Disability Pension payable at 70% of the general rate.
THE HEARING
The tribunal convened a hearing in this matter in Newcastle on 5 March 2002. Ms J Buss from the NSW Legal Aid Commission represented Mr Drew and Mr S Modder from the Department of Veterans' Affairs ("DVA") Advocacy Service represented the Repatriation Commission. The tribunal heard oral evidence from Mr Drew and took into evidence the following documents:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T25) provided by the respondent.
Exhibit A1 – Applicant's revised statement of facts and contentions, 9 October 2001.
Exhibit A2A – Report by Ms C Carter, 24 August 2001.
Exhibit A2B – Report by Ms Carter, 20 February 2002.
Exhibit A3 – Report by Dr Y A E Ghabrial, orthopaedic and spinal surgeon, 12 February 2001.
Exhibit A4 – Statement by applicant, 12 October 2000.
Exhibit R1 – Respondent's statement of facts…

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 Drew and Repatriation Commission

Details

AGLC: Drew and Repatriation Commission [2002] AATA 832
Case: [2002] AATA 832
Decision Date: 24 September 2002

CaseChat Overview and Summary

The case of Drew and the Repatriation Commission involved the issue of whether Mr. Drew, an Australian mariner, was eligible for a disability pension due to osteoarthrosis of the hip, which he claimed was caused by his service during World War II. The central dispute was whether Mr. Drew's service qualified as operational service under the Veterans' Entitlements Act 1986, particularly in relation to the periods immediately before and after his employment outside Australia. The tribunal had to decide if Mr. Drew's employment on various ships before and after his service on the Alagna qualified as operational service under the Act.

The legal issues before the court encompassed the interpretation and application of the statutory provisions concerning operational service, specifically ss 5C(1), 6A(1), 6B(1), 7(1)(a), (e), 21(1), 120(1), (3), 120A, 196B, and 196D of the Veterans' Entitlements Act 1986. The tribunal had to determine whether Mr. Drew's service on the Iron King, Munmorah, Beltana, and Mildura qualified as operational service under s 6B(1)(b) of the Act. This required interpreting the phrase "immediately before or immediately after" and applying it to the facts of Mr. Drew's service. Additionally, the tribunal had to decide if osteoarthrosis of the hip could be classified as a war-caused disease under the relevant Statement of Principles.

The tribunal concluded that Mr. Drew's osteoarthrosis of the hip was a war-caused disease, effective from 25 August 1994. The court found that Mr. Drew's service on the Alagna, and potentially on the Iron King, Munmorah, Beltana, and Mildura, qualified as operational service under s 6B(1)(b) of the Act. The tribunal adopted a reasonable hypothesis standard of proof to determine that the three war-time falls occurred within periods of operational service, thus satisfying the criteria for a war-caused disease. The tribunal also accepted the respondent's submission that Mr. Drew was eligible for payment at 90% of the general rate for his disability pension. The tribunal set aside the previous decision and substituted its own, affirming Mr. Drew's eligibility for the disability pension.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Drew's osteoarthrosis of the right hip has therefore been a war-caused disease since 25 August 1994. That is three months before the date of claim on 25 November 1994 (T4; s 20(1) of the Act). However, as Mr Drew was paid until approximately 2 July 1998 in respect of accepted disabilities including this disease, he is eligible for payment at a rate to be assessed. The respondent, submitted (ex R4) that the appropriate rate would be 90% of the general rate, allowing a rating of 30 points for the osteoarthrosis under the Guide to the Assessment of Rates of Veterans' Pensions (5th ed) ("GARP"). The tribunal has accepted this assessment as fair.DECISION The tribunal sets aside the decision under review and substitutes its own decision that Mr Drew's disease of osteoarthrosis of the right hip ("the disputed disease") is a war-caused disease, with effect from 25 August 1994 and that Mr Drew qualifies for payment of Disability Pension at 90% of the general rate with effect from the first pension payday following the last pension payday on which the disputed disease was an accepted disability. I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior MemberSigned: ..................................................................................... AssociateDate of Hearing 6 March 2002 Date of Decision 23 September 2002Advocate for the applicant Ms J Buss, NSW Legal Aid Commission Solicitor for the applicant NSW Legal Aid CommissionAdvocate for the respondent Mr S Modder, DVA Advocacy Service Solicitor for the respondent Mr J Marsh, DVA

Ratio Decidendi

Legal Principle Established

Mr Drew first claimed in respect of his osteoarthritis on 25 November 1994 (T4). This was after the introduction of the SoP system on 1 June 1994 so the SoPs on osteoarthritis are relevant to Mr Drew's claim. SoP 81/2001 is relevant to any injury allegedly occurring during operational service. SoP 82/2001 is relevant to any injury allegedly occurring during eligible war service other than operational service. If Mr Drew cannot succeed in relation to the current SoPs then a SoP in force at the time of the primary decision (2 July 1998) can be considered (Repatriation Commission v Gorton (2001) 33 AAR 370 and Repatriation Commission v Williams [2001] FCA 1195).when was mr drew's operational service? A major concern in this case related to the timing of Mr Drew's operational service. From s 6B(1) of the Act it is clear that Mr Drew was on operational service when the ship on which he was serving as an Australian mariner was outside Australia, which means outside Australian territorial waters. From ex A2B that was from 7 May 1945 to 25 May 1945 when the Alagna visited the New Guinea ports of Lae and Milne Bay, 15 June 1945 to 3 July 1945 when the ship visited Torokina, and from 25 July 1945 until 8 August 1945 when the ship visited Lae. The tribunal is assuming that the ship cleared and re-entered Australian territorial waters quite soon after leaving the Australian port and quite soon before re-entering the Australian port. This is a reasonable assumption given the narrow breadth of Australian territorial waters. Latterly the breadth has been 12 nautical miles, although it was three nautical miles in the 1940s. The VRB (T18) saw the operational service period as from 30 April 1945 to 20 August 1945. Beyond that, s 6B(1)(b) brings in as operational service any period of employment within Australia as an Australian mariner on a ship if that period of employment ended immediately before, or started immediately after, the period of employment outside Australia as discussed in paragraph 11. This is a similar formula of words used in paragraph (c) of column 3 within item 1 of s 6A(1) of the Act in relation to a member of the Defence Force. The well-known effect of the phrase in s 6A(1) is to convert to operational service the whole of a Defence Force serviceperson's period of continuous full-time service rendered within Australia immediately before, or immediately after, a period of continuous full-time service outside Australia. For the applicant it was argued that s 6B(1)(b) had the effect of converting to operational service those periods of Mr Drew's service as an Australian mariner that occurred immediately before and after his employment outside Australia not only on the Alagna but also on the ships on which Mr Drew served "immediately before" and "immediately after" service on the Alagna. These were the Iron King (from 26 February 1945 to 14 April 1945) and the Munmorah (from 4 September 1945 to 17 September 1945. Further, the applicant submitted that service on the Beltana, the ship prior to the Iron King, could be regarded as operational if that service was immediately before service on the Iron King. This argument was extended back through five discrete periods of service to service on the Mildura. The purpose was to locate the dates of each of the three war-time falls within a period of operational service and thereby permit the utilisation of the reasonable hypothesis standard of proof.