Harper and Repatriation Commission (Veterans' entitlements) - [2021] AATA 2806

Harper and Repatriation Commission (Veterans' entitlements) [2021] AATA 2806 (10 August 2021)

Division:VETERANS’ APPEALS DIVISION
File Number: 2019/3017
Re:Gary Harper
APPLICANT

Repatriation CommissionAnd
RESPONDENT

DECISION

Tribunal:Member Ward & Member Ormston
Date:10 August 2021
Place:Adelaide

The decision under review is affirmed.

......................[Sgnd]............................
Member Ward

CATCHWORDS

VETERANS’ AFFAIRS – Reliability of evidence – contemporaneous documents – pre-existing use of tobacco – allegations of bullying – evidence as to use of tobacco for three years prior to diagnosis – 3 pack-years – inconsistencies in claim documentation – Intervening SOP – decision under review affirmed

LEGISLATION

Military Rehabilitation and Compensation Act2004

Veterans Entitlements Act 1986

CASES

Knight v Repatriation Commission [2010] FCA 1134

Repatriation Commission v Gorton [2001] FCA 1194

SECONDARY MATERIAL

Statement of Principles concerning Gastro-oesophageal Reflux Disease No. 66 of 2013

Statement of Principles concerning Gastro-oesophageal Reflux Disease (Balance of Probabilities) No. 62 of 2021

REASONS FOR DECISION

Member Ward & Member Ormston

10 August 2021

The Applicant has a claim for compensation for a condition of gastro-oesophageal reflux disease (“GORD”). The Respondent has denied liability for the claim under the Veterans Entitlements Act 1986 (the “Act”).
The Applicant contends that the GORD was caused as a result of smoking, the amount of which was increased as a consequence of his service in the Royal Australian Air Force (RAAF).
The Respondent accepts that the Applicant’s RAAF service falls within the definition of ‘defence service’ for the purposes of s 68 of the Act, and that he meets the eligibility requirements for a pension under s 70 of the Act.
During the time that the claim was pursued by the Applicant, the appropriate Statement of Principles (“SOP”) pursuant to the Act and the Military Rehabilitation and Compensation Act 2004, was Gastro-Oesophageal Reflux Disease, No. 66 of 2013 (“SOP 66”). The claim has proceeded in accordance with that SOP. The hearing was conducted, and the parties addressed the Tribunal on the relevant facts in accordance with that SOP and the relevant law.
Whilst the Tribunal was considering its decision following addresses, the SOP was varied by a new SOP concerning Gastro-Oesophageal Reflux Disease (On the Balance of Probabilities) No. 62 of 2021 (“SOP 62”). It came into effect on 21 June 2021 after the hearing had finished but before the Tribunal had finalised its reasons. At the request of the Applicant, the matter was brought back on for further directions and argument in accordance with the appropriate SOP applicable to the matter on 15 July 2021. For the reasons set out below, it was considered that the new SOP no. 62 of 2021 was applicable to the primary dispute.
With regard to the claim, the reviewable decision rejecting the claim dated 31 January 2019 is affirmed. The reasons for this follow.
During further submissions, the parties agreed that where there had been an updated SOP during the course of a dispute, the process to be adopted was as follows:
7.1.The decision-maker was first to consider…

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.

Keep reading for free

Create a free CaseChat account to read Harper and Repatriation Commission (Veterans' entitlements) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] AATA 2806
Decision Date: 10 August 2021

CaseChat Overview and Summary

Harper and the Repatriation Commission were parties to a dispute concerning a claim for veterans' entitlements. The Administrative Appeals Tribunal (AAT) heard the matter.

The AAT was required to determine whether the applicant, Harper, had established that his current conditions were war-caused. Specifically, the Tribunal had to consider the reliability of the evidence presented regarding Harper's pre-existing use of tobacco and whether this use was sufficient to satisfy the requirements of the relevant Statement of Principles (SOP) for his conditions. The Tribunal also had to assess the impact of alleged bullying on Harper's claim.

The Tribunal found that while there was evidence of tobacco use for approximately three years prior to diagnosis, amounting to 3 pack-years, there were significant inconsistencies in Harper's claim documentation. The Tribunal concluded that the evidence did not sufficiently establish that Harper's conditions were war-caused under the applicable SOP. Consequently, the decision under review, which affirmed the denial of the claim, was affirmed.

Orders