Hawkins and Repatriation Commission

[2005] AATA 132

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 132

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/476

VETERANS’ APPEALS DIVISION		)
Re		KEVIN HAWKINS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr EK Christie, Member

Date14 February 2005  

PlaceBrisbane

Decision The decision under review is affirmed.  This means Mr Hawkins’ application for review is unsuccessful.

.        ..........[Sgd] .........

EK Christie
  Member

CATCHWORDS

VETERANS AFFAIRS – reasonable hypothesis – cervical spondylosis and operational service – Statement of Principles and up-to-date medical and science – words and phrases:  “carrying loads … on the head while upright….”  

Veterans’ Entitlements Act 1986 ss 6D, 120

Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Stares (1996) 41 ALD 212
Stoddart v Repatriation Commission [2003] FCA 334; (2003) 74 ALD 366
East v Repatriation Commission (1987) 74 ALR 518; (1987) 12 ALD 389
Repatriation Commission v Bey (1997) 47 ALD 481
Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) 29 ALD 1
Deledio v Repatriation Commission (1997) 47 ALD 261
Dixon v Repatriation Commission (1999) 29 AAR 235; (1999) 59 ALD 315
Byrnes v Repatriation Commission (1993) 177 CLR 564

Metropolitan Gas Co v Federated Bas Employees’ Industrial Union (1925) 35 CLR 449

Bourne v Norwich Crematorium [1967] 1 WLR 691

Avondale Motors (Parts) Pty Ltd v Federal CommissionerofTaxation (1971) 45 ALJR 280

REASONS FOR DECISION

14 February 2005   Dr EK Christie, Member

1.      This is an application by Kevin Hawkins to review a decision of the Veterans’ Review Board (“the VRB”) made on 28 February 2003 that decided Mr Hawkins’ cervical spondylosis was not war caused.

2.      At the hearing, Mr Hawkins was represented by Mr N Dawson of Counsel.  Mr B Williams, a Departmental Advocate represented the respondent.

3. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative appeals Tribunal Act 1975 (the “T” documents, Exhibit R1) and the various documents tendered by the parties.

Facts

4. Mr Hawkins served in the Royal Australian Navy from 7 September 1950 to 6 September 1956. He rendered eligible war service in the form of operational service on HMAS Sydney from 31 August 1951 to 23 February 1952 in Korean waters and from 27 October 1953 to 2 June 1954 in Japanese and Korean waters, pursuant to section 6D(1) of the Act.

Issues to be Decided

5.      At the commencement of the hearing, the parties agreed that the only issue for the Tribunal to decide was the interpretation of Factor 5(j) of the Statement of Principle No 50 of 2002, “Cervical Spondylosis”:

“(j)carrying loads of at least 15 kg on the head while upright to a cumulative total of 72 000 kg within any 10 year period, before the clinical onset of cervical spondylosis; or”

6.      Furthermore, the parties agreed that, in relation to Factor 5(j):

(a)The SoP threshold for carrying 15kg was not in dispute in terms of the weight of the parachute…