Gilkinson and Repatriation Commission - [2008] AATA 364

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 364
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N2006/0296

VETERANS’ APPEALS DIVISION
)

Re DAVID GILKINSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen
Dr M E C Thorpe, Member
Date6 May 2008
PlaceSydney

Decision
The decision under review is affirmed.

.................[sgd]....................
M D Allen

Presiding Member
CATCHWORDS

VETERANS’ ENTITLEMENTS – review of decision of veterans’ review board affirming prior determination by respondent that applicant’s condition of sleep apnoea was not related to service – delidio principles – whether material raises reasonable hypothesis connecting disease suffered by applicant with circumstances of service – hypothesis must conform to a statement of principles – civil standard of proof – evidence said to establish a hypothesis connecting disease suffered with circumstances of service disproved beyond reasonable doubt – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 sections 6C, 68, 120A, 120(1), 120(3) and 120(6)
CASE LAW
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Cooke (1998) 90 FCR 307
Meehan v Repatriation Commission (2001) 64 ALD 366
Benjamin v Repatriation Commission (2001) 70 ALD 622
Kattenberg v Repatriation Commission (2003) 73 ALD 365
REASONS FOR DECISION

6 May 2008 Senior Member M D Allen
Dr M E C Thorpe, Member

1.      By application made the 21st day of March 2006, the Applicant sought a review of the decision of the Veterans’ Review Board, affirming a prior determination by the Respondent that his diagnosed condition of Sleep Apnoea was not related to service, and that continued his Disability Pension at 80 per cent of the general rate.
2.      In these proceedings, the Applicant contended that his Sleep Apnoea was causally related to his operational service, and that he was entitled to a pension at the special rate.
3. The Applicant has periods of “operational service’, as that term is defined in section 6C of the Veterans’ Entitlements Act 1986, being 10 trips he spent as a crew member of HMAS Sydney when that vessel journeyed to South Vietnam in the years 1970-1972.
4. In addition to his operational service, the Applicant had a period of defence service as defined in section 68 VEA from 7 December 1972 to 9 July 1977.
5.      As the Applicant had operational service, so far as refers to any incapacity alleged to have arisen out of the circumstances of that service, the standard proof is that mandated by subsections 120(1) and (3) VEA.
6. Subsections 120(1) and (3) VEA provide that any disease suffered by a veteran, and claimed to be war-caused, shall be accepted as being so caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after a consideration of the whole of the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the disease suffered…

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 Gilkinson and Repatriation Commission

Details

AGLC: Gilkinson and Repatriation Commission [2008] AATA 364
Case: [2008] AATA 364
Decision Date: 6 May 2008

CaseChat Overview and Summary

Gilkinson v Repatriation Commission involved the applicant contesting the decision of the veterans’ review board that affirmed a prior determination by the Commission, which held that the applicant’s condition of sleep apnoea was not related to their service. The matter was heard in the Federal Court of Australia. The applicant sought to overturn the decision on the basis that the evidence presented established a connection between the sleep apnoea and their service, thus warranting a finding of relatedness under the relevant legislative provisions.

The legal issues before the court centred on the interpretation and application of the Delidio principles and the relevant legislative criteria concerning the connection between the applicant’s condition and their service. Specifically, the court had to determine whether the evidence presented a reasonable hypothesis linking the sleep apnoea to the applicant’s service, in accordance with the applicable statements of principles. Furthermore, the court examined whether the evidence disproved beyond reasonable doubt that the sleep apnoea was unrelated to service, under the civil standard of proof.

In assessing the evidence, the court held that the applicant had not established a reasonable hypothesis connecting the sleep apnoea with the circumstances of their service, as required by the legislative framework. The evidence provided did not conform to the relevant statements of principles and thus did not raise a reasonable hypothesis of service-relatedness. Consequently, the court found that the decision under review was correctly made, and the appeal was dismissed, affirming the veterans’ review board’s decision.

The final orders of the court were that the decision under review be and is affirmed, with no further recourse available to the applicant in relation to the determination that the sleep apnoea was not related to service.

Orders

Orders of the court

The decision under review is affirmed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.