Hocking and Repatriation Commission - [2005] AATA 245

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 245
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1334

VETERANS’ APPEALS DIVISION )

Re THOMAS HOCKING

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Date18 March 2005
PlaceSydney

Decision
The decision under review is set aside and in substitution therefor the Tribunal decides that Mr Hocking’s peripheral vascular disease, chronic airways limitation and his ischaemic heart disease are due to eligible service. This decision has effect from 23 November 2003.

.........................................
Ms N Bell,
Senior Member

ADMINISTRATIVE APPEALS TRIBUNAL ) No N2003/1334
VETERANS’ APPEALS DIVISION )

Re:THOMAS HOCKING
Applicant

And:REPATRIATION COMMISSION
Respondent

ORDER TO AMEND WRITTEN DECISION [2005] AATA 245
TribunalMs N Bell, Senior Member
Date23 March 2005
PlaceSydney
WHEREAS:
1.The Tribunal released a written decision in this matter, which was dated 18 March 2005.
2.It has come to the Tribunal’s attention that there was an error in the decision.
3.The Tribunal wishes to amend the written decision so as to rectify this error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975.

NOW THE TRIBUNAL THEREFORE ORDERS that the decision should be read as follows:

DECISION

The decision under review is set aside and in substitution therefor the Tribunal decides that Mr Hocking’s peripheral vascular disease, chronic airways limitation and his ischaemic heart disease are due to eligible service. This decision has effect from 23 November 2000.

.................................
Ms N Bell
Senior Member

VETERANS’ AFFAIRS – Peripheral Vascular Disease – Ischaemic Heart Disease – Chronic Airflow Limitation – Whether Conditions Arose out of or Attributable to Service – SoP – Question of When Applicant Ceased Smoking – Date of Clinical Onset.
Veterans’ Entitlements Act 1986
Repatriation Commission v Tuite (1993) 29 ALD 609
Critch – Repatriation Commission (1996) 43 ALD 574
Repatriation Commission v Edwards (G250 of 1993)
Repatriation Commission v Thompson (2001) 63 ALD 1
REASONS FOR DECISION

18 March 2005 Ms N Bell, Senior Member

1. Mr Thomas Hocking (now deceased) was born on 5 April 1912 and enlisted in the 6^th Light Horse between 1933 and 1936. He then enlisted in the regular Australian Army in 1941 and was discharged in 1946.
2. Mr Hocking later suffered from a number of disabilities accepted by the Repatriation Commission as being due to his service. However, his claim for peripheral vascular disease, ischaemic heart disease and chronic airflow limitation was rejected by the Commission on the basis that those conditions were not due to his service, though here is no dispute that Mr Hocking suffered from those conditions.
3. His regular Army service is eligible war service for the purposes of the Veterans’ Entitlements Act 1986 (the Act). The relevant standard pf proof is that of comfortable satisfaction. The question of whether Mr Hocking’s peripheral vascular disease, ischaemic heart disease and chronic airflow limitation are due to his service is…

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 Hocking and Repatriation Commission

Details

AGLC: Hocking and Repatriation Commission [2005] AATA 245
Case: [2005] AATA 245
Decision Date: 18 March 2005

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal involved Mr. Hocking, a former member of the Australian Defence Force, who was challenging a decision made by the Repatriation Commission concerning his eligibility for medical benefits under the Repatriation Health Act 1948. The dispute centred on whether Mr. Hocking's medical conditions, specifically peripheral vascular disease, chronic airways limitation, and ischaemic heart disease, were due to his service in the armed forces and thus qualified for benefits. The Tribunal was tasked with reviewing the Commission's decision that these conditions were not attributable to his service.

The legal issues that the Tribunal had to resolve included the interpretation of "eligible service" under the Act, the causation link between Mr. Hocking's service and his medical conditions, and the standard of proof required to establish such a link. The Tribunal needed to consider whether the Repatriation Commission's decision was legally sound and whether it appropriately balanced the principles of fairness and the objective evidence presented. It was also necessary to determine whether the Commission had properly assessed the medical evidence and the applicable legislative provisions.

After reviewing the evidence and arguments presented, the Tribunal concluded that the Repatriation Commission had erred in its decision. The Tribunal found that there was sufficient evidence to establish that Mr. Hocking's medical conditions were due to his service, and thus eligible for benefits under the Act. The Tribunal set aside the Commission's decision and substituted its own, ruling that Mr. Hocking's conditions were indeed attributable to his service. This decision was made effective from 23 November 2003, the date from which Mr. Hocking's eligibility for benefits was to be recognised.

Orders

Orders of the court

The decision under review is set aside and in substitution therefor the Tribunal decides that Mr Hocking’s peripheral vascular disease, chronic airways limitation and his ischaemic heart disease are due to eligible service. This decision has effect from 23 November 2003.

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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