Jacobs and Repatriation Commission - [2000] AATA 810

DECISION AND REASONS FOR DECISION [2000] AATA 810

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1881

VETERANS' APPEALS   DIVISION     )
           Re      DAVID WINDERMERE JACOBS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member M D Allen

Date13 September 2000
PlaceSydney

Decision      The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely THAT: the Respondent, Repatriation Commission, is to pay to DAVID WINDERMERE JACOBS pension for incapacity occasioned by the war-caused disease of lumbar spondylosis at the following rates:- as and from 23 October 1999 to 24 February 2000 inclusive at 60% of the General Rate of pension; and at 70% of the General Rate of pension as and from 25 February 2000.
  (Sgd)                  M D ALLEN
  ..............................................
  Senior Member
CATCHWORDS

VETERANS' ENTITLEMENTS - Whether lumbar spondylosis war-caused. Definition of trauma. Contribution sufficient to comply with SoP. Rate of pension – Special Rate denied as under 65 and not seeking work.

Veterans' Entitlements Act 1986 - subs24(1) and (2); s28; subs120(1), (3) and (6); s120A

Repatriation Commission v Deledio 83 FCR 82
Repatriation Commission v Keeley [2000] FCA 532
Repatriation Commission v Smith 15 FCR 327
Jebb v Repatriation Commission 8 AAR 285
Cavell v Repatriation Commission 9 AAR 534

REASONS FOR DECISION

13 September 2000 Senior Member M D Allen

Pursuant to an application lodged with the Tribunal on 24 December 1998 the Applicant sought review of a decision of the Respondent made 23 January 1998 and confirmed by a Veterans' Review Board on 1 September 1998 that his condition of lumbar spondylosis was not war-caused.
The said application for review came on for hearing before me at Sydney on 23 February 2000 and resumed on 24 July 2000. At that hearing the following documents were taken in as exhibits and marked as follows, namely:
T1 – T15: The documents prepared for the Tribunal pursuant to s37 of the Administrative Appeals Tribunal Act 1975
Exhibit A1:    Applicant's Statement of Facts and Contentions
Exhibit A2:    Report of Dr M Benanzio dated 30 March 1999
Exhibit A3:    Report of Dr M Benanzio dated 16 July 1999
Exhibit A4:    Report of Dr M Baz dated 25 February 1999
Exhibit A5:    Report of Dr M Baz dated 19 July 1999
Exhibit A6:    Report of Dr M Baz dated 24 February 2000
Exhibit R1:    Respondent's Statement of Facts and Contentions
Exhibit R2:    Report of Professor P N Sambrook dated 29 April 1999
Exhibit R3:    Report of Dr Mark Burns dated 4 September 1999
Exhibit R4:    Copy of the Applicant's Naval medical documents.

As the Applicant had operational service as that term is defined in s6D of the Veterans' Entitlements Act 1986 (the VEA), such service being aboard HMAS Quadrant in the periods 2 March 1956 to 10 April 1956 and 21 September 1956 to 7 October 1956, the provisions of subss120(1) and (3) of the VEA constitute the relevant standard of proof in this matter. As the application to the Respondent for pension was made post…

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 Jacobs and Repatriation Commission

Details

AGLC: Jacobs and Repatriation Commission [2000] AATA 810
Case: [2000] AATA 810
Decision Date: 13 September 2000

CaseChat Overview and Summary

The case of Jacobs and Repatriation Commission involves a veteran, Mr. Jacobs, who sought a determination as to whether his lumbar spondylosis was war-caused, entitling him to certain benefits. The matter was heard and determined by the Federal Court of Australia. The central issue in this case was whether Mr. Jacobs' lumbar spondylosis was sufficiently connected to his military service to be considered war-caused under the Veterans' Entitlements Act 1986.

The legal issues before the court included the interpretation of the term "trauma" within the context of the Act and whether the contribution of Mr. Jacobs' military service to his condition was sufficient to satisfy the criteria set out in the relevant statutory provisions. Furthermore, the court had to determine the appropriate rate of pension to be awarded, considering the Special Rate provisions and Mr. Jacobs' age and employment status.

In delivering its judgment, the court considered the statutory provisions and relevant case law, including Repatriation Commission v Deledio, Repatriation Commission v Keeley, Repatriation Commission v Smith, Jebb v Repatriation Commission, and Cavell v Repatriation Commission. The court found that the veteran's lumbar spondylosis was indeed war-caused, as it was sufficiently connected to his military service. However, the Special Rate of pension was not awarded, as Mr. Jacobs was under 65 years of age and not actively seeking work. The court's reasoning was grounded in a detailed analysis of the statutory provisions and case law, leading to a decision that balanced the veteran's entitlements with the statutory criteria.

The final orders of the court were that Mr. Jacobs' lumbar spondylosis was deemed war-caused, entitling him to the relevant benefits under the Veterans' Entitlements Act 1986. However, the Special Rate of pension was not granted, as it did not meet the eligibility criteria under the Act.

Orders