JEFFREY BAIRD and REPATRIATION COMMISSION - [2010] AATA 66

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 66
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3093

Veterans' Affairs DIVISION )

Re JEFFREY BAIRD

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
Mr Egon Fice, Member

Dr Kerry Breen, Member

Date1 February 2010
PlaceMelbourne

Decision
The decision of the Veterans’ Review Board (VRB) dated 12 June 2007 in respect of Mr Baird’s claimed gastro-oesophageal reflux disease (GORD) is set aside. Instead, the Tribunal finds that Mr Baird’s GORD was war‑caused. The Tribunal affirms the decision of the VRB dated 12 June 2007 regarding Mr Baird’s rate of pension.

(sgd) Egon Fice
Member

CATCHWORDS – gastro-oesophageal reflux disease – diagnosis – clinical onset – solicitors instructions to expert – independence of expert – war-caused disease – alcohol consumption and smoking – intermediate and special rate of pension – remunerative work – cause and extent of incapacity – alone test
Veterans’ Entitlement Act 1986   ss 7, 9A, 13(1), 21(2),23, 24, 24A, 101(1), 120, 120(1),(2),(3) 120A, 120A(3), 196B(2), (11)
Statement of Principles concerning gastro-oesophageal reflux disease No 11 of 2005
Byrnes v Repatriation Commission (1993) 177 CLR 564
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (1999) 58 ALD 394
Government Insurance Office (NSW) v R J Green and Lloyd Pty Ltd (1966) 114 CLR 437
Law v Repatriation Commission (1980) 29 ALR 64
Lees v Repatriation Commission (2002) 125 FCR 331
Peacock v Repatriation Commission (2004) 40 AAR 143
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hendy (2002) 76 ALD 47
Walsh v Rother District Council [1978] 1 ALL ER 510
Wright v Repatriation Commission [2005] FCA 7
Chambers 21^st Century Dictionary
REASONS FOR DECISION

1 February 2010 Mr Egon Fice, Member

1.      Mr Jeffrey Baird served in the Australian Army (the army) between 29 September 1965 and 29 November 1967. He had operational service in South Vietnam between 2 April 1967 and 14 August 1967.
2.      On 1 April 2005 Mr Baird lodged a claim for disability pension because he suffered gastro-oesophageal reflux disease (GORD), alcohol abuse and tinea. On 22 April 2005 Mr Baird lodged a further claim for what he described as heart problems. On 13 December 2005 a delegate of the Repatriation Commission (the Commission) determined that Mr Baird suffered GORD, alcohol dependence, tinea and ischaemic heart disease. The Commission accepted Mr Baird’s claims for tinea and ischaemic heart disease but rejected his claims for alcohol dependence and GORD. It also increased his rate of disability pension to 60 per cent of the general rate, with effect from 1 January 2005.
3.      Dissatisfied with the Commission’s decision, Mr Baird sought a review by the Veterans’ Review Board (VRB). Mr Baird then applied to the Commission for an increase in his rate of disability pension to the special rate because his ischaemic heart disease had worsened. On 29 September 2006 a delegate…

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.

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Details

AGLC: JEFFREY BAIRD and REPATRIATION COMMISSION [2010] AATA 66
Case: [2010] AATA 66
Decision Date: 1 February 2010

CaseChat Overview and Summary

Jeffrey Baird brought a case against the Repatriation Commission, challenging the decision of the Veterans’ Review Board (VRB) regarding his claim for a pension related to his gastro-oesophageal reflux disease (GORD). The dispute centred on whether the GORD was caused by his service in the military, and consequently, whether he was entitled to a war-caused pension. The case was heard in the Federal Court of Australia.

The court had to decide whether Mr Baird's GORD was caused by his military service, thereby qualifying as a war-caused condition, and whether the VRB had correctly assessed the rate of pension. The primary issue was the causal link between Mr Baird’s GORD and his service, while a secondary issue involved the correctness of the pension rate already determined by the VRB.

The court meticulously reviewed medical evidence and the testimonies provided to determine the origin of Mr Baird’s GORD. It concluded that the evidence strongly suggested a connection between his military service and the onset of GORD, leading to the finding that the condition was indeed war-caused. While affirming the VRB’s decision on the rate of pension, the court found that the GORD was war-caused, overturning the VRB’s earlier decision on this point.

Orders

Orders of the court

The decision of the Veterans’ Review Board (VRB) dated 12 June 2007 in respect of Mr Baird’s claimed gastro-oesophageal reflux disease (GORD) is set aside. Instead, the Tribunal finds that Mr Baird’s GORD was war‑caused. The Tribunal affirms the decision of the VRB dated 12 June 2007 regarding Mr Baird’s rate of pension.

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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