Elton and Repatriation Commission (Veterans' entitlements)

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Elton and Repatriation Commission (Veterans' entitlements) [2020] AATA 5361 (30 October 2020)

Division:VETERANS’ APPEALS DIVISION

File Number:          2015/2851

Re:Peter Robert Elton

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie

Date of decision:               30 October 2020

Place:Melbourne

The Tribunal decides to:

affirm the decision of the Repatriation Commission dated 10 October 2013 and 26 August 2014 as affirmed by a decision of the Veterans’ Review Board dated 5 May 2015.

…………[sgd]……………………
Deputy President S A Forgie

Catchwords

VETERANS’ AFFAIRS – disability pension – claim for post-traumatic stress disorder, generalised anxiety disorder, lumbar spondylosis and/or spondylolisthesis and spondylolysis – whether conditions war-caused – relevance of material from previous proceedings – Tribunal satisfied beyond reasonable doubt that applicant’s lumbar spondylosis and/or spondylolisthesis and spondylolysis not war-caused – Tribunal satisfied on balance of probabilities that applicant not suffering from post-traumatic stress disorder or generalised anxiety disorder – decision affirmed.

Legislation

Migration Act 1958

Safety Rehabilitation and Compensation Act 1988

Veterans’ Entitlements Act 1986; s 5C; s 7; s 9; s 13; s 14; s 17; s 19; s 120; s 196B

Secondary materials
Chambers 21st Century Dictionary Revised edition 1999, reprinted 2004, Chambers
Diagnostic and Statistical Manual of Mental Disorders Fifth edition, Arlington VA, American Psychiatric Association, 2013
Macquarie Dictionary Eighth edition, 2020, Macquarie
Res Judicata, Issue Estoppel and the Commonwealth Administrative Appeals Tribunal: A Square Peg in a Round Hole? (1996) 4 Australian Journal of Administrative Law 37

Cases

Border v Repatriation Commission (No. 2) [2010] FCA 1430; (2010) 191 FCR 163
Bushell v Repatriation Commission (1992) 175 CLR 408; 109 ALR 30; 66 ALJR 753; 16 AAR 1; 29 ALD 1
Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564; 116 ALR 210; 67 ALJR 805; 18 AAR 1; 30 ALD 1
Delahunty v Repatriation Commission [2004] FCA 309; (2002) 38 AAR 511
Delahunty and Repatriation Commission [2003] AATA 914
Deledio v Repatriation Commission (1997) 47 ALD 261
Elton and Repatriation Commission [2014] AATA 475
Elton and Repatriation Commission [2016] AATA 479
Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1
Green v The Queen [1971] HCA 55; (1971) 126 CLR 28; 46 ALJR 545
Keeley v Brooking (1979) 143 CLR 162; 53 ALJR 526
Lees v Repatriation Commission [2002] FCAFC 398
McLean and Repatriation Commission [2001] FCA 1505
Mines v Repatriation Commission (2004) 40 AAR 238
Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374
Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394
R v Chatzidimitrou [2000] VSCA 91; (2000) 1 VR 493
Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6
Rana v Military Rehabilitation and Compensation Commission [2005] FCAFC 85
Repatriation Commission v Deledio (1998) 27 AAR 144
Repatriation Commission v Keeley [2000] FCA 532; (2000) 98 FCR 108
Repatriation Commission v Gorton [2001] FCA 1194; (2001) 33 AAR 370
Repatriation Commission v Gosewinckel

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Details
Case
[2020] AATA 5361
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Elton, against a decision of the Repatriation Commission affirming a determination that his claimed conditions of post-traumatic stress disorder, generalised anxiety disorder, lumbar spondylosis, spondylolisthesis, and spondylolysis were not war-caused. The Tribunal had been satisfied beyond reasonable doubt that the lumbar conditions were not war-caused and on the balance of probabilities that the psychological conditions were not suffered.

The primary legal issue before the court was whether the Tribunal had erred in its assessment of the evidence and application of the relevant legislative provisions, specifically sections 196B(2) and 196B(14) of the *Veterans' Entitlements Act 1986* (Cth), in determining that the applicant's conditions were not war-caused. This involved considering the requirements for establishing a Statement of Principles (SoP) and how a claimant's particular circumstances must align with the factors stipulated in an applicable SoP to raise a reasonable hypothesis connecting the condition to service.

The court considered the interrelationship between sections 120(3) and (4) and the provisions of an SoP, as previously analysed in *Deledio v Repatriation Commission*. It was held that section 196B(2) requires the Repatriation Medical Authority to identify the minimum factors connecting a specific injury or disease to the circumstances of service, and which of those factors must be related to service. The applicant's claim must then fit this established template. A hypothesis will not be considered reasonable if it is contrary to scientific fact, fanciful, or inconsistent with an applicable SoP. The Tribunal's decision was affirmed based on its findings that the applicant's conditions did not meet the criteria for being war-caused under the relevant SoPs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In so far as it applies to operational service, 196B(2) provides:“If the Authority is of the view that there is a sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:(a)operational service rendered by veterans; or(b)-(ca)…the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:(d) the factors that must as a minimum exist; and(e) which of those factors must be related to service rendered by a person;before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.Note 1:For sound medical-scientific evidence see subsection 5AB(2).Note 2:…Note 2A: …Note 3: For factor related to service see subsection (14).” Again in so far as it relates to the circumstances of this case, 196B(14) provides:“A factor causing or contributing to, an injury, disease or death is related to service rendered by a person if:(a)it resulted from an occurrence that happened while the person was rendering that service; or(b)it arose out of, or was attributable to, that service; or(c)it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey;(i)to a place for the purpose of performing duty; or(ii)away from a place of duty upon having ceased to perform duty; or(d)it was contributed to in a material degree by, or was aggravated by, that service; or(e)in the case of a factor causing, or contributing to, an injury – it resulted from an accident that would not have occurred:(i)but for the rendering of that service by the person; or(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or(f)in the case of factor causing, or contributing to, a disease – it would not have occurred -(i)but for the rendering of that service by the person; or(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or(g)in the case of a factor causing, or contributing to, the death of a person – it was due to an accident that would not have occurred, or to a disease that would not have been contracted:(i)but for the rendering of that service by the person; or(ii)but for changes in the person’s environment consequent upon his or her having rendered that service.” The manner in which ss 120(3) and (4) inter-relate with the provisions of a SoP was considered by Heerey J in Deledio v Repatriation Commission[20] (Deledio). An appeal from his judgement was dismissed by the Full Court of the Federal Court.[21] After considering the structure of the Act and its various amendments and the judgements of the High Court in Bushell v Repatriation Commission[22] and Byrnes v Repatriation Commission,[23] his Honour concluded:[20] (1997) 47 ALD 261[21] Repatriation Commission v Deledio (1998) 27 AAR 144, Beaumont, Hill and O’Connor JJ[22] (1992) 175 CLR 408; 109 ALR 30; 66 ALJR 753; 16 AAR1; 29 ALD 1; Mason CJ, Brennan, Deane, Dawson, Toohey and McHugh JJ[23] [1993] HCA 51; (1993) 177 CLR 564; 116 ALR 210; 67 ALJR 805; 18 AAR 1; 30 ALD 1; Mason CJ, Gaudron and McHugh JJ“ Therefore when s 196B(2) says a factor ‘must ... exist’ and ‘must be related to service’, it is not interfering with the functions of ss120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:(i)contrary to proved or known scientific facts,(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or(iii) since (1994) inconsistent with (not upheld by) an applicable SoP.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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