Johnston and Repatriation Commission - [2004] AATA 1042

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1042
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/379

VETERANS' APPEALS DIVISION )

Re JEFFREY JOHNSTON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr EK Christie, Member
Date24 September 2004
PlaceBrisbane

Decision
The Tribunal affirms the decision under review. This means Mr Johnston’s application for review is unsuccessful. The Tribunal raises the possibility of an Act of Grace payment in the factual circumstances.

...................(Sgd)...................
EK Christie
Member

CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – loss of earning allowance – loss of salary or wages and disease – renal failure – Statement of Principles not issued – exposure to aviation fuel – changing scientific knowledge and connection between renal failure and service – whether legislative outcome unintended – Act of Grace payment – statutory interpretation: sequence of provisions
Re Payne and Repatriation Commission (1989) 10 AAR 207
Patman v Fletcher’s Fotographics Pty Ltd (1984) 6 IR 471
Jackman v Repatriation Commission [1997] FCA 564
WRITTEN REASONS FOR ORAL DECISION

6 October 2004 Dr EK Christie, Member

1.      This is an application by Jeffery Johnston for a review of a decision made by the Veterans’ Review Board (“the VRB”) made on 19 March 2004 in relation to his eligibility for loss of earnings allowance (“LOE”). An oral decision in relation to this application for review was given on 24 September 2004 at the conclusion of the hearing. The written reasons for this oral decision follow.
2.      At the hearing on 24 September 2004, Jeffery Johnston represented himself. The respondent was represented by Mr J Kelly, a Departmental Advocate.
3. At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents, Exhibit 1).
4.      The general facts were not in dispute and may be stated briefly. Mr Johnston is now aged 43. Mr Johnston enlisted in the Royal Australian Navy in January 1977 as a helicopter electrical engineer and was discharged in January 1983. This period constitutes “eligible service”. His service in the RAN from January 1977 to January 1983 was with 723 Squadron on HMAS Albatross.
5.      Mr Johnston worked as a helicopter engineer involved in online refuelling and was exposed to aviation fuel splash, as well as aviation solvents and aviation exhaust.
6.      Mr Johnston lodged a claim for “renal failure end stage” on 26 September 2002. The Repatriation Commission accepts that the diagnosis of “renal failure” is an appropriate medical diagnosis.
7.      In its reasons for decision, the Repatriation Commission concluded (15 July 2003):
“Under the Act, where there is eligible service, I can only accept the claim if I am satisfied on the balance of probabilities that the claimed condition is related to that service. The Repatriation Medical Authority issues Statements of Principles for particular conditions stating which factors must exist for a connection to service to be probable. In relation to Mr Johnston’s claim for renal failure, the available evidence includes the…

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 [2004] AATA 1042
Case: [2004] AATA 1042
Decision Date: 24 September 2004

CaseChat Overview and Summary

In Johnston and Repatriation Commission, the parties involved were Mr Johnston, a veteran, and the Repatriation Commission. The nature of the dispute was Mr Johnston's application for review of the Commission's decision regarding his eligibility for a disability pension. The case was heard in the Administrative Appeals Tribunal (AAT).

The legal issues the court had to decide involved whether the Commission's assessment of Mr Johnston's disability was flawed and whether the Tribunal had the authority to raise the possibility of an Act of Grace payment in this context. Specifically, the court needed to determine whether the Tribunal had the power to make such a suggestion and if it was appropriate to do so under the circumstances.

The court's reasoning involved a detailed examination of the evidence presented and the legal framework governing the Commission's decisions. The Tribunal found that the Commission's assessment was based on credible evidence and was therefore correct. The court also considered the possibility of an Act of Grace payment, noting that while such payments are generally not within the Tribunal's jurisdiction, they could be considered in exceptional circumstances. However, the court concluded that raising this possibility did not affect the outcome of the review.

The final orders of the Tribunal were to affirm the Commission's decision, meaning Mr Johnston's application for review was unsuccessful. The Tribunal also noted the potential for an Act of Grace payment, although it did not alter the outcome of the case.

Orders

Orders of the court

The Tribunal affirms the decision under review. This means Mr Johnston’s application for review is unsuccessful. The Tribunal raises the possibility of an Act of Grace payment in the factual circumstances.

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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