VETERANS' AFFAIRS - appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") affirming that the appellant's condition of lumbar spondylosis was not war-caused - application of Statement of Principles defining "trauma to the lumbar spine" - whether Tribunal correctly applied the third stage of Repatriation Commission v Deledio (1998) 83 FCR 82 - assumed facts - whether "acute signs and symptoms of … altered mobility … " could have been assumed by the Tribunal based upon the material before it.
PRACTICE AND PROCEDURE - error of law detected in the decision of the Tribunal - whether it would be futile to remit the matter for redetermination.
TERRENCE JOHN HARRIS v REPATRIATION COMMISSION VG 157 of 1999
FINN J 4 JULY 2000 SYDNEY (HEARD IN MELBOURNE)
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 157 OF 1999
BETWEEN:
TERRENCE JOHN HARRIS APPLICANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGE:
FINN J
DATE OF ORDER:
4 JULY 2000
WHERE MADE:
SYDNEY (HEARD IN MELBOURNE)
THE COURT ORDERS THAT:
1. the application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 157 OF 1999
BETWEEN:
TERRENCE JOHN HARRIS APPLICANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGE:
FINN J
DATE:
4 JULY 2000
PLACE:
SYDNEY (HEARD IN MELBOURNE)
REASONS FOR JUDGMENT
This application by way of an appeal under s 44 of the Administrative Appeals Tribunal Act1975 (Cth) ("the AAT Act") against a decision of the Veterans' Appeal Division of the Administrative Appeals Tribunal ("the Tribunal") raises an issue of quite narrow compass. Before describing it I should first refer to two preliminary matters.
The first is that the appeal itself was instituted several days outside the time limit prescribed by s 44(2A) of the Act. The respondent, the Repatriation Commission, has not opposed the grant of an extension of time in which to institute this appeal. While emphasising that such leave is not granted as of course, the present is a matter in which it is proper to grant it.
Secondly, the matter in question relates to a decision of the Tribunal affirming a decision rejecting the claim of the applicant, Terrence…
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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AGLC
Harris v Repatriation Commission [2000] FCA 873
Case
[2000] FCA 873
Decision Date
CaseChat Overview and Summary
In the case of Harris v Repatriation Commission, the dispute revolves around whether Mr Harris' lumbar spondylosis is connected to his war service, thus qualifying him for certain benefits. The Tribunal was tasked with deciding whether Mr Harris' condition met the criteria set out in Deledio's case and the applicable Schedule of Pensions (SoP).
The central legal issues were whether Mr Harris' lumbar spondylosis was linked to his war service and whether the Tribunal's decision to reject the claim was justified. Specifically, the court needed to determine if the hypothesis connecting the condition to the war service was reasonable and whether the Tribunal correctly applied the SoP in reaching its conclusion. The key point of contention was whether Mr Harris' evidence sufficiently demonstrated "altered mobility or range of movement" of his spine, a factor required by the SoP.
The Tribunal concluded that the hypothesis connecting Mr Harris' condition to his war service was reasonable, as it fit within the template provided by the SoP. However, the Tribunal found that Mr Harris did not provide sufficient evidence of altered mobility or range of movement, which is a necessary factor for the hypothesis to be deemed reasonable. The Tribunal relied on Mr Harris' own statements and the evidence presented, noting that he continued to perform all duties and did not seek medical assistance despite his condition. The court held that the Tribunal's decision was supported by the evidence and correctly applied the legal criteria, thus dismissing the appeal.
The final orders of the court were that the application be dismissed, affirming the Tribunal's decision.
Orders
Orders of the court
1. the application be dismissed.
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
FINN J
Dr Stone also indicated that he had no history from Mr Harris of a shoulder injury resulting from the bag of potatoes falling on him. He accepted that that injury was of the type that trauma could have occurred to his back.The Tribunal's Decision The Tribunal acknowledged and then purported to apply in order the stages indicated by the Full Court in Deledio's case that are set out at the beginning of these reasons. It was accepted that Mr Harris now suffers from lumbar spondylosis and the Tribunal concluded that for the purpose of Deledio's stage 1 an hypothesis existed connecting that condition with Mr Harris' war service. Stage 2 was satisfied by virtue of the SoP. It then passed to stage 3 the terms of which it is appropriate to repeat:"3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail." The Tribunal recognised that stage 3 was "critical in [its] deliberations". The particular SoP factor this brought into focus was whether Mr Harris suffered "altered mobility or range of movement of that part of the spine". Of Mr Harris' evidence it referred to his statement that he had no memory of limitation of movement following the onset of pain; he was able to continue to perform all duties; he did not suffer incapacity nor did he seek medical assistance; he consumed aspirin but because of back pain. The Tribunal noted (i) that his request for aspirin was usually made at the beginning of the day after he had been asleep or else manning a machine gun in a lying position; and (ii) while on duty he continued to carry a pack and equipment weighing about 100 pounds. The Tribunal went on to precis Dr Stone's evidence. Mr Harris' counsel had submitted that, in the absence of evidence of altered mobility or range of movement, the Tribunal should "on the whole of the material" raise assumed facts so as to determine whether the hypothesis - if it is to be reasonable - is not fanciful or untenable? The assumed fact was stated to be that of altered mobility or range of movement etc. This submission the Tribunal recognised was founded on the decision of the Full Court in Repatriation Commission v Stares (1996) 66 FCR 594 which in turn was followed by Merkel J in Critch v Repatriation Commission (1996) 43 ALD 574. In the later case - which did not involve consideration of an SoP - Merkel J indicated that for a fact to be assumed it is to be "raised by the material rather than in the abstract": at 580.