Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 897
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/193
VETERANS' APPEALS DIVISION ) Re ROYDEN ALBERT HILLIER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date26 August 2004
PlaceAdelaide
Decision The Tribunal varies the decision under review and decides that:
(a) the applicant’s Ischaemic Heart Disease and Acute Myeloid Leukaemia are war-caused diseases;
(b) the matter is remitted to the respondent for assessment of the appropriate rate of pension with effect from 6 August 2001; and
(c) the decision is otherwise affirmed.
D.G Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – claims that three conditions are war-caused – ischaemic heart disease – acute myeloid leukaemia – depressive disorder – rate of smoking - consideration of stressors – meaning of “clinical onset” – meaning of “occurrence” – meaning of “severe psychosocial stressor” – sentry duty on HMAS Sydney – hearing of atrocities committed against Viet Cong soldiers - decision varied.
Veteran’s Entitlements Act 1986 sections 9, 120(1). 120(3), 120A and 196
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Deledio (1998) 83 FCR 82
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Kattenberg v Repatriation Commission (2002) 73 ALD 365
White v Repatriation Commission [2004] FCA 633
Stoddart v Repatriation Commission (2003) 197 ALR 283
Repatriation Commission v Stoddart (2003) 77 ALD 67
Woodward v Repatriation Commission (2003) 75 ALD 420
Delahunty v Repatriation Commission [2004] FCA 309
Repatriation Commission v Law (1980) 31 ALR 140
REASONS FOR DECISION
26 August 2004 Deputy President D G Jarvis 1. The applicant, Royden Albert Hillier, is a Vietnam veteran. In a decision made on 2 May 2002, a delegate of the respondent refused the applicant’s claim for medical treatment and a pension for incapacity from conditions diagnosed as depressive disorder, bilateral sensorineural hearing loss, acute myeloid leukaemia (“AML”) and ischaemic heart disease (“IHD”), on the ground that those conditions were not war-caused. On 29 April 2003, the Veterans’ Review Board (“VRB”) set aside the decision in relation to sensorineural hearing loss and in substitution found that the sensorineural hearing loss was war-caused and that the veteran was therefore entitled to a pension in respect of that condition from and including 6 August 2001. The VRB otherwise affirmed the decision of the delegate with respect to depressive disorder, AML and IHD, and it is that aspect of the respondent’s decision which was the subject of the present application for review by this Tribunal.
2. The applicant was represented by Mr C Swan, solicitor, and the respondent was represented by its advocate, Mr A Crowe. The applicant, Mr Peter Clark and Ms Debra Videon gave evidence in support of the applicant’s case, and Commodore Mulcare gave evidence for the respondent. The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were admitted in evidence, and the parties tendered a number of…
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- AGLC
- Hillier v Repatriation Commission [2004] AATA 897
- Case
- [2004] AATA 897
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether Mr. Hillier's ischaemic heart disease and acute myeloid leukaemia were caused by his operational service, as well as the meaning of “clinical onset” and “occurrence” for these conditions. It also needed to consider whether Mr. Hillier's depressive disorder was caused by severe psychosocial stressor, particularly his experience of sentry duty on HMAS Sydney and hearing of atrocities. The court examined the relevant statutory provisions and case law, including Repatriation Commission v Gorton and Stoddart v Repatriation Commission, to interpret the legislative terms.
The court found that the ischaemic heart disease and acute myeloid leukaemia were attributable to Mr. Hillier's service, noting that the clinical onset of these conditions occurred during his service. It also found that his depressive disorder was caused by severe psychosocial stressor, specifically his experiences on HMAS Sydney. The court varied the decision under review, holding that Mr. Hillier's ischaemic heart disease and acute myeloid leukaemia were war-caused diseases, and that the matter was remitted to the respondent for assessment of the appropriate rate of pension. The decision regarding the depressive disorder was affirmed.
The court ordered that the applicant’s ischaemic heart disease and acute myeloid leukaemia were war-caused diseases, and that the matter be remitted to the respondent for assessment of the appropriate rate of pension with effect from 6 August 2001. The decision was otherwise affirmed.
Orders
Orders of the court
The Tribunal varies the decision under review and decides that:
(a) the applicant’s Ischaemic Heart Disease and Acute Myeloid Leukaemia are war-caused diseases;
(b) the matter is remitted to the respondent for assessment of the appropriate rate of pension with effect from 6 August 2001; and
(c) the decision is otherwise affirmed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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