ADMINISTRATIVE LAW – review of decision of Administrative Appeals Tribunal (“Tribunal”) – veteran’s entitlements – whether Tribunal erred in finding no reasonable hypothesis
Veterans’ Entitlements Act 1986 (Cth) ss 9, 13, 120, 120A
LANCE GORDON ELLIOTT v REPATRIATION COMMISSION N 922 of 2001
STONE J 23 JANUARY 2002 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 922 OF 2001
BETWEEN:
LANCE GORDON ELLIOTT APPLICANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGE:
STONE J
DATE OF ORDER:
23 JANUARY 2002
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.the application be dismissed;
2.the applicant pay the respondent’s costs of this proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 922 OF 2001
BETWEEN:
LANCE GORDON ELLIOTT APPLICANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGE:
STONE J
DATE:
23 JANUARY 2002
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Background
The applicant served in the Australian Army during World War II from 24 October 1941 to 22 March 1946. In a decision given on 8 April 1999, the respondent, Repatriation Commission (“Commission”), refused the applicant’s claim that his medical condition, determined by a delegate of the Commission to be peripheral neuropathy and osteoarthrosis in both knees, was war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (Cth) (“Act”). The Veterans’ Review Board affirmed this decision on 3 December 1999. This decision was, in turn, affirmed by the Administrative Appeals Tribunal (“Tribunal”) on 14 May 2001. Before the Tribunal the applicant did not challenge the decision in respect of peripheral neuropathy but only in respect of his osteoarthrosis. The applicant has applied under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) for a review of the Tribunal’s decision.
Legislative framework
Under the Act a veteran who has become incapacitated from a war-caused injury or disease is entitled to a pension; s 13. An injury or disease is taken to be war-caused if, inter alia, it results from an occurrence that happened while the veteran was rendering operational service; s 9. The reference to “incapacity” from a war-caused injury or disease is a reference to the effects of that injury or disease and is not a reference to the injury or disease itself.
The Act is strongly biased in favour of a veteran’s claim that incapacity from an injury or disease relating to operational service is war-caused. The history and underlying policy of this approach is described by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261. Heerey J’s analysis was confirmed on appeal by the…
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.
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Details
AGLC
Elliott v Repatriation Commission [2002] FCA 26
Case
[2002] FCA 26
Decision Date
CaseChat Overview and Summary
The case of Elliott v Repatriation Commission involved the applicant seeking a review of decisions made by the Commission and the Veterans’ Review Board, which had rejected his claim for a war-caused pension in relation to osteoarthrosis in both knees. The applicant argued that his condition was connected to his war service, specifically the extreme conditions he experienced during his service in Australia and Papua New Guinea. The Tribunal was tasked with determining whether there was a reasonable hypothesis linking the applicant's osteoarthrosis to his war service, and if the Commission and Board had applied the correct legal principles in making their decisions.
The central legal issue before the Tribunal was whether the Commission and Board had erred in law by not accepting a connection between the applicant's osteoarthrosis and his war service. The Tribunal needed to consider if the hypothesis that the osteoarthrosis was linked to the applicant's service was reasonable, and whether the Commission and Board had correctly applied the relevant statutory provisions and Standard Operating Procedures (SoP). Specifically, the Tribunal examined the requirements under the relevant SoP, Instrument No. 41 of 1998, and whether the conditions set out in this instrument for establishing a connection between the applicant’s condition and his service had been met.
The Tribunal found that while the applicant's service and the diagnosis of osteoarthrosis were not in dispute, there was no reasonable hypothesis linking the condition to the applicant’s war service. The Tribunal rejected the applicant’s argument that the extreme conditions he experienced during his service caused the osteoarthrosis, instead accepting that the condition was more likely caused by his pre-existing lumbar spondylosis. The Tribunal concluded that the Commission and Board had not erred in law and correctly applied the relevant SoP in reaching their decisions. Consequently, the application for review was dismissed, and the applicant was ordered to pay the respondent’s costs.
Orders
Orders of the court
1. the application be dismissed;
2. the applicant pay the respondent’s costs of this proceeding.
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
STONE J
The Act also provides that:·except in making a determination to which s 120(1) or (2) applies, the Commission shall decide the matter to its reasonable satisfaction; s 120(4), ·the Commission is not entitled to assume that an injury or disease is war-caused; s 120(5), and ·nothing in the Act or its provisions imposes an onus of proving any matter concerning the claim on a claimant or applicant for a pension, the Commonwealth, the Department or any other person; s 120(6).The Tribunal’s decision In this case it was common ground that the applicant’s service referred to in [1] above constituted “operational service”. The diagnosis of osteoarthrosis in both the applicant’s knees was also accepted, but neither the Commission nor the Board accepted a connection between this condition and the applicant’s war service. In reviewing the Board’s decision the first step for the Tribunal was to determine whether there was an hypothesis connecting the applicant’s osteoarthrosis with his war service. The Tribunal considered two possibilities. One was that the osteoarthrosis could be attributed to the extreme cold the applicant experienced driving tanks and camping out during his service in Australia, compounded by being continually wet during the tropical wet season during his service in Papua New Guinea. The other was that the applicant’s accepted condition of lumbar spondylosis had affected his joints and caused osteoarthrosis of his knees. The Tribunal rejected the former and accepted the latter noting that, in accordance with Deledio, “no fact finding arose at this stage, nor was the reasonableness of the hypothesis in issue”. In considering if the hypothesis raised was reasonable, the Tribunal noted that the relevant SoP at the time of the decisions of the Commission and the Veterans’ Review Board was Instrument No. 41 of 1998 (“1998 Instrument”). This instrument was amended by Instrument No. 19 of 1999, however that amendment was not relevant to the applicant’s claim. The 1998 Instrument defines osteoarthrosis as,“a heterogenous group of clinical joint disorders, associated with inflammation of the synovium and defective integrity of the articular cartilage and related changes in the underlying bone and joint margins, and which has the following clinical characteristics:(a)a history of pain;(b)impaired function;(c)joint swelling; and(d)stiffness …” In paragraph 5, the 1998 Instrument lists twenty-three factors, one of which, as a minimum, must exist before it can be said that a reasonable hypothesis has been raised connecting the applicant’s osteoarthrosis with his operational service. Not all of the factors listed in the 1998 Instrument could apply to osteoarthrosis of the knees, however the Tribunal mentioned two as possibly relevant to the applicant’s claim. They are:“(e)having a malalignment of a joint before the clinical onset of osteoarthrosis in that joint; or…(h)suffering from permanent ligamentous instability of a joint before the clinical onset of osteoarthrosis in that joint;”Malalignment is defined in clause 8 of the 1998 Instrument as meaning:“the presence of significant displacement out of line resulting from the effect of underlying muscle weakness, deformity of other joints, joint dysplasia or disparate leg length.”