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Gibson and Repatriation Commission

Gibson and Repatriation Commission

Case [2009] AATA 115 20 February 2009

Judicial Review

Accrued Rights

Statutory Interpretation

Statements of Principle

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CATCHWORDS – VETERANS’ AFFAIRS – hypertension – application of Statement of Principles – effect of revocation of SoPs between date of Commission’s decision and Tribunal’s decision – whether accrued rights to have hypotheses considered by reference to revoked SoPs and particularly those in force at the time of the VRB’s decision and any review by the Commission - whether reasonable hypothesis that hypertension war-caused – whether satisfied beyond reasonable doubt that condition not war-caused – decision set aside.

Acts Interpretation Act 1901 ss 46A, 48, 48A, 48B, 49 and 50
Administrative Appeals Tribunal Act 1975 (AAT Act), s 25
Legislative Instruments Act 2003 s 2, 5, 6, 12 and 15
Veterans’ Entitlements Act 1986 ss 5AB(2), 5C, 5D, 5Q(1), 7, 9, 13(6), 120, 120A, 196B, 196C, 196CA, 196G, 196W(7)

DECISION AND REASONS FOR DECISION [2009] AATA 115

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )  S2001/149
VETERANS’   APPEALS   DIVISION                )

Re BRUCE…

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: Gibson and Repatriation Commission [2009] AATA 115
Case: [2009] AATA 115
Decision Date: 20 February 2009

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) reviewed the decision of the Repatriation Commission to deny Bruce Warwick Gibson's claim for a pension on the basis that his hypertension was not a war-caused disease. The Tribunal set aside the decision and substituted a decision that Mr Gibson's hypertension was war-caused within the meaning of the Veterans' Entitlements Act 1986. The AAT found that there was a reasonable hypothesis that Mr Gibson's hypertension was caused by his Post Traumatic Stress Disorder (PTSD), which had arisen out of his operational service in Vietnam. The Tribunal examined the relevant Statements of Principles (SoP) and concluded that the hypothesis was consistent with the template set out in the SoP. The Tribunal found that the hypothesis was not disproved beyond reasonable doubt and therefore Mr Gibson's claim for a pension was accepted. The AAT's decision was based on the evidence presented and the applicable legislation and SoPs.

Orders