Johnston and Repatriation Commission - [2007] AATA 1372

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1372
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2006/0422

VETERANS' APPEALS DIVISION )

Re ROBERT JOHNSTON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
Senior Member M D Allen

Dr S H Toh, Member

Date28 May 2007

Place Sydney
Decision The decision under review is AFFIRMED.
..................[sgd].........................
M D Allen
Presiding Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – whether Applicant’s condition of cervical spondylosis is war-caused – operational service – Statement of Principles Instrument No.50 of 2002 – debate as to the clinical onset of the Applicant’s cervical spondylosis – Tribunal satisfied that the material before it does not point to a hypothesis connecting the Applicant’s cervical spondylosis with his operational service – the decision under review is affirmed
Veterans' Entitlements Act 1986 - s 120, 120A
Repatriation Commission v Gorton 110 FCR 321
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Cameron v Repatriation Commission [2003] FCA 1323
South Western Sydney Area Health Service v Edmonds [2007] NSW CA 16
REASONS FOR DECISION

28 May 2007 Senior Member M D Allen
Dr S H Toh, Member

1.      In this matter the Applicant seeks review of the decision of the Respondent rejecting his claim to have cervical spondylosis recognised as a war-caused disease.
2.      There is no dispute that the Applicant is a veteran who had operational service, albeit for a period of some 88 days in total over five separate periods. Likewise, there is no dispute that the correct diagnosis of the Applicant’s condition is cervical spondylosis.
3.      The issue in this matter is whether the material before the Tribunal has raised a reasonable hypothesis connecting the Applicant’s cervical spondylosis with his operational service.
4.      If a reasonable hypothesis has been raised, then as the Applicant had operational service, subsection 120(1) of the Veterans’ Entitlement Act 1986 (“the VEA”) mandates that this Tribunal must grant his claim unless satisfied that the facts upon which the hypothesis is based have been negatived beyond reasonable doubt.
5.      Any hypothesis raised will not be “reasonable” for the purposes of the VEA unless it conforms to a so-called Statement of Principles (“SoP’), issued pursuant to sections 196 and 120A of the VEA.
6.      In this matter, two SoPs apply. The SoP currently in force is Instrument No.33 of 2005. Both parties to this review agreed that as that SoP was not as favourable to the veteran as Instrument No.50 of 2002, being the SoP in force at the time the Respondent made its original decision, then the Tribunal must have regard to that SoP as well: see Repatriation Commission v Gorton 110 FCR 321.
7.      Instrument No.50 of 2002 defines cervical spondylosis as “degenerative changes affecting the cervical vertebrae or intervertebral discs, causing local pain and stiffness or symptoms and signs of cervical cord or cervical nerve root compression, but excludes diffuse idiopathic skeletal hyperostosis”. Factor 5(e) of the factors giving rise to causation…

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 Johnston and Repatriation Commission

Details

AGLC: Johnston and Repatriation Commission [2007] AATA 1372
Case: [2007] AATA 1372
Decision Date: 28 May 2007

CaseChat Overview and Summary

The case of Johnston and Repatriation Commission involves an applicant seeking to have his cervical spondylosis recognised as a war-caused condition for the purposes of veterans' entitlements under the Veterans' Entitlements Act 1986. The applicant argued that his cervical spondylosis was caused by his operational service during his military career, and he sought a favourable Statement of Principles Instrument No.50 of 2002. The dispute was brought before the court following the decision of the Tribunal which rejected the applicant's claim, finding that there was insufficient evidence to establish a causal link between his cervical spondylosis and his military service. The court was required to determine whether the Tribunal's decision was correct and whether the applicant's claim should be upheld.

The key legal issues before the court were whether the Tribunal correctly interpreted the evidence and whether the applicant had successfully established a causal link between his cervical spondylosis and his operational service. The applicant argued that the Tribunal failed to properly consider the evidence and misapplied the principles set out in relevant authorities, such as Repatriation Commission v Gorton and Repatriation Commission v Cornelius. The applicant contended that the Tribunal should have found that his cervical spondylosis was caused by his operational service, as it was a reasonable inference from the evidence presented.

The court found that the Tribunal had properly considered the evidence and applied the relevant legal principles in reaching its decision. The court noted that the evidence did not point to a hypothesis connecting the applicant's cervical spondylosis with his operational service, and that the applicant had not discharged the onus of proving that his condition was caused by his military service. The court found that the Tribunal's decision was not flawed and affirmed the decision under review. The court also noted that the applicant's reliance on Cameron v Repatriation Commission and South Western Sydney Area Health Service v Edmonds was misplaced, as those cases dealt with different factual circumstances and did not support the applicant's argument.

In conclusion, the court affirmed the Tribunal's decision rejecting the applicant's claim for veterans' entitlements on the basis that his cervical spondylosis was not war-caused. The court found that the Tribunal had properly considered the evidence and applied the relevant legal principles in reaching its decision. The applicant's claim for a favourable Statement of Principles Instrument No.50 of 2002 was dismissed.

Orders