James and Repatriation Commission - [2006] AATA 22

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 22
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1237

VETERANS’ APPEALS DIVISION )

Re ERNEST JAMES

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Ms R Hunt
Member Dr I Alexander
Date13 January 2006
PlaceSydney

Decision The Tribunal affirms the decision under review.

[Sgd] Ms R Hunt
Presiding Member

CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – Service pension – Eligible defence service - Claim for ischaemic heart disease and hypertension –No connection with defence service – Decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 ss 5D(1), 9(1), 120(1), 120(3), 120(4), 120A(3)
CASES
Briginshaw v Briginshaw and Anor (1938) 60 CLR 336
Lees v Repatriation Commission (2002) 74 ALD 68
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Smith (1987) 15 FCR 327
Statement of Principles concerning Hypertension, Instrument No 36 of 2003, as amended by Instrument No 4 of 2004
Statement of Principles concerning Ischaemic Heart Disease, Instrument No 54 of 2003, as amended by Instrument No 10 of 2004
REASONS FOR DECISION
summary
1.      Mr Ernest James, the applicant, sought review of a decision of the Repatriation Commission, as affirmed by the Veterans’ Review Board. Mr James sought review of the part of the decision that refused him a pension based on his suffering ischaemic heart disease and hypertension. Mr James receives a disability pension at the 60% rate in respect of some other health problems. A decision that his defence service contributed to his claimed blood pressure and heart conditions would increase his pension. The tribunal has decided that Mr James should not have his pension increased by reference to hypertension and ischaemic heart disease as set out below.
background
2.      Mr James served in the Royal Australian Navy and claimed his heart and hypertension problems stemmed from his defence service during 7 December 1972 to 28 January 1994. Mr James also served in Vietnam for periods in 1971 but made no claim before the tribunal that was related to his eligible war service.
issue
3.      The parties agreed that Mr James suffered from hypertension and ischaemic heart disease. At issue was whether Mr James had hypertension while in defence service or related to his defence service. Further, did this condition meet the terms of the relevant SoP, which is Instrument Number 36 of 2003 For this purpose, the tribunal was required to determine the time of clinical onset of hypertension. The tribunal then was required to review the decision as to Mr James’ claim of defence caused ischaemic heart disease. He argued that his defence-caused hypertension was the cause of his heart problem and was also therefore defence caused.
principles for consideration
4.      Mr James relied on his defence service as the service which made him eligible for the additional rate of pension claimed. In this regard, s.70(1) of the Veterans’ Entitlements Act 1886 renders the Commission liable to pay pension to a veteran…

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 James and Repatriation Commission

Details

AGLC: James and Repatriation Commission [2006] AATA 22
Case: [2006] AATA 22
Decision Date: 13 January 2006

CaseChat Overview and Summary

James brought a claim against the Repatriation Commission for a service pension, asserting that his ischaemic heart disease and hypertension were connected to his defence service. The Commission denied the claim, finding no connection between the diseases and his service. The dispute was brought before the Administrative Appeals Tribunal to review the Commission's decision.

The central legal issue was whether the diseases claimed by James were connected to his defence service, which is a prerequisite for eligibility for a service pension under the relevant legislation. The Tribunal needed to determine whether the evidence presented by James sufficiently demonstrated a connection between his conditions and his military service.

The Tribunal found that the medical evidence did not establish a sufficient link between James’s ischaemic heart disease and hypertension and his defence service. It held that the conditions were more likely due to other factors unrelated to his military service. Consequently, the Tribunal affirmed the Commission's decision, finding no grounds to overturn the denial of James's claim for a service pension.

No further orders were made beyond affirming the decision under review.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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