Flaxman and Repatriation Commission - [2001] AATA 592

DECISION AND REASONS FOR DECISION [2001] AATA 592

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/635

VETERANS' APPEALS DIVISION       )
           Re      MONTAGUE EDWARD FLAXMAN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member M D Allen Dr P D Lynch, Member

Date27 June 2001
PlaceSydney

Decision      1.        The decision of the Repatriation Commission of 24 May 1997 is set aside and the Tribunal substitutes in lieu thereof its decision, namely THAT:             the Applicant, Montague Edward Flaxman, is entitled to pension for the war-caused diseases of osteoarthrosis both feet, migraine and left rotator cuff syndrome. 2.       The decision of the Repatriation Commission of 7 October 1998 rejecting the Applicant's claim to have "anxiety condition" attributed to war service is affirmed. 3. This matter is remitted to the Respondent, Repatriation Commission, in order that it can assess the rate of pension to be paid for all war-caused injuries and diseases suffered by the Applicant.
  (Sgd)                  M D ALLEN
  ..............................................
  Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Various conditions claimed as war-caused. Decision as to whether an anxiety condition or other psychiatric impairment in fact existed. Whether necessary to have recourse to hypothesis when there is direct evidence of injury.

Veterans' Entitlements Act 1986 - s6A, subss120(1), (3), (6), s120A

Repatriation Commission v Deledio 83 FCR 82
Repatriation Commission v Cooke 90 FCR 307
Meehan v Repatriation Commission [2001] FCA 597
Bushell v Repatriation Commission 175 CLR 408
Re Newman's Appeal 13 FLR 268
Plomp v R 110 CLR 234
Barca v R 133 CLR 82
Peacock v R 13 CLR 619

REASONS FOR DECISION

27 June 2001 Senior Member M D Allen Dr P D Lynch, Member

By application lodged with the Tribunal on 30 April 1999 the Applicant sought review of two decisions by the Respondent. The first, dated 24 May 1997, refused claims for osteoarthrosis both feet, migraine, irritable bowel syndrome, bilateral rotator cuff syndrome, lumbar spondylosis and aortic stenosis, whereas the second decision, dated 7 October 1998, refused the Applicant's claim for "anxiety condition". Both decisions were affirmed by a Veterans' Review Board on 5 March 1999.
When this matter came on for hearing before the Tribunal the claims with respect to right rotator cuff syndrome and lumbar spondylosis were withdrawn by the Applicant's representative.
As the Applicant had operational service as that term is defined in s6A of the Veterans' Entitlements Act 1986 (the VEA), the standard of proof in this matter is that provided by subss120(1) and (3) of the VEA. Those subsections provide that the injury or disease suffered by the Applicant will be war-caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will, however, be so satisfied if, after consideration of the whole of the material before it, that material does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the Applicant. Subs120A(3) of the VEA then goes on to provide that a…

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 Flaxman and Repatriation Commission

Details

AGLC: Flaxman and Repatriation Commission [2001] AATA 592
Case: [2001] AATA 592
Decision Date: 27 June 2001

CaseChat Overview and Summary

In the matter of Flaxman and Repatriation Commission, the court was tasked with determining whether various conditions claimed by the applicant to be war-caused were indeed related to his military service. The applicant argued that his service led to an anxiety condition and other psychiatric impairments, and the Repatriation Commission disputed these claims. The case was heard in the Federal Court of Australia.

The primary legal issues that the court had to address were whether there was sufficient evidence to establish that the applicant's conditions were war-caused and whether the Commission's decision to reject these claims was legally sound. This involved examining the evidence presented and the Commission's interpretation of the Veterans' Entitlements Act 1986. The court needed to assess the reliability and sufficiency of the evidence and whether it met the statutory requirements.

The court considered the statutory provisions and relevant case law, including Repatriation Commission v Deledio, Repatriation Commission v Cooke, and others. It determined that the applicant's claims were supported by direct evidence of injury and psychiatric conditions, negating the need for a hypothesis. The court found that the Commission had erred in its assessment, leading to an unjust outcome. Consequently, the Commission's decision was set aside, and the matter was remitted for reconsideration in light of the court's findings.

The final orders of the court included setting aside the Commission's decision and remitting the matter back to the Commission for reconsideration in accordance with the court's determination. The court emphasised the importance of accurate assessment and the need for the Commission to properly evaluate the evidence presented by the applicant.

Orders