Hoey and Repatriation Commission - [2006] AATA 775

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 775
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/131

VETERANS' APPEALS DIVISION
)

Re NEVILLE HOEY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr RG Kenny, Member
Associate Professor Dr B Morley, Member
Date11 September 2006
PlaceBrisbane

Decision The Tribunal affirms the decision under review

.........[Sgd].......
RG Kenny
Member

CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service with Royal Australian Navy – claim for ischaemic heart disease – description of condition in Statements of Principles – no diagnosis of condition – decision affirmed
Veterans’ Entitlements Act 1986 ss 5D, 9, 14, 120, 120A
Keeley v Repatriation Commission (2001) 60 ALD 401
Repatriation Commission v Gorton (2001) 65 ALD 609
Fogarty v Repatriation Commission (2003) 37 AAR 363
REASONS FOR DECISION

11 September 2006
Mr RG Kenny, Member

Assoc Professor B Morley, Member

Background
1. Neville Hoey (“the applicant”) served in the Royal Australian Navy from 27 August 1965 until 7 May 1980. His service included periods in transit to and from and in South Vietnamese waters. On 9 February 2001, he lodged a claim for acceptance by the Repatriation Commission (“the respondent”) of “ischaemic heart disease” as being related to his service. That claim was made in accordance with section 14 of the Veterans’ Entitlements Act 1986 (“the Act”) and, on 30 March 2001, the respondent determined that, although Mr Hoey suffered from chest pain, there was insufficient medical evidence to support a diagnosis of ischaemic heart disease. That decision was affirmed by the Veterans’ Review Board on 19 February 2004 and, on 10 March 2005, Mr Hoey’s application for further review was received by the Administrative Appeals Tribunal (“the Tribunal”).
Hearing
2. Mr Hoey attended the hearing but was not represented. The respondent was represented by Mr J Kelly. Material before the Tribunal included documents (the T documents: exhibit 1) prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975.
Issues and Legislation
3. It is common ground that Mr Hoey served in the Royal Australian Navy from 1965 to 1980 and that he completed periods of eligible war service in the form of operational service as those terms are defined in the Act. He also completed a period of defence service from 7 December 1972 until his discharge but no contentions were raised in respect of this part of Mr Hoey’s service. The issues for determination are whether Mr Hoey suffers from ischaemic heart disease such that it meets the definition of disease or injury as those terms are defined in sub-section 5D(1) of the Act which read:
“disease means:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;but does not include:

(c)       the aggravation of such an ailment, disorder, defect or morbid condition; or
(d)       a temporary departure from:
(i)        the normal physiological state; or
(ii)       the accepted ranges…

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 Hoey and Repatriation Commission

Details

AGLC: Hoey and Repatriation Commission [2006] AATA 775
Case: [2006] AATA 775
Decision Date: 11 September 2006

CaseChat Overview and Summary

The applicant, Mr Hoey, brought a claim before the Administrative Appeals Tribunal against the Repatriation Commission. He sought a disability pension on the basis that he developed ischaemic heart disease due to his service with the Royal Australian Navy. The Tribunal was tasked with determining whether Mr Hoey's claim met the statutory criteria for a disability pension as outlined in the Veterans’ Entitlements Act 1986. The primary legal issue before the Tribunal was whether Mr Hoey's ischaemic heart disease was caused by his operational service, given the absence of a formal diagnosis. The Tribunal had to consider the evidence presented, the descriptions of Mr Hoey's condition in the Statements of Principles, and the relevant statutory provisions in determining the validity of his claim.

In deciding the matter, the Tribunal examined the statutory criteria under sections 5D, 9, 14, 120, and 120A of the Veterans’ Entitlements Act 1986. It considered whether Mr Hoey's condition met the definition of a disease or injury that arose out of his service. The Tribunal also referred to previous cases such as Keeley v Repatriation Commission, Repatriation Commission v Gorton, and Fogarty v Repatriation Commission for guidance on interpreting similar statutory provisions and the nature of evidence required to substantiate claims. The Tribunal found that the absence of a formal diagnosis of ischaemic heart disease undermined Mr Hoey's claim. It concluded that the evidence did not sufficiently establish a causal link between his service and the condition, and therefore did not satisfy the legislative requirements for a disability pension.

The Tribunal affirmed the decision of the Repatriation Commission, dismissing Mr Hoey's claim for a disability pension. It held that the absence of a formal diagnosis and the lack of sufficient evidence to establish a causal link between his service and the claimed ischaemic heart disease meant that the statutory criteria were not met. Consequently, the Tribunal upheld the Commission's decision, denying Mr Hoey's application for a disability pension.

Orders

Orders of the court

The Tribunal affirms the decision under review

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.