Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 595
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N2002/475
VETERANS' APPEALS DIVISION ) Re LESLIE JAMES JOHNSTON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO, Member Date26 June 2003
PlaceSydney
Decision The decision under review is therefore set aside, and in substitution, the Tribunal determines that the condition of Ischaemic Heart Disease is war-caused with effect from 5 January 2001, and the matter is remitted to the Respondent to assess the rate of pension payable to the Applicant.
(Sgd) Rear Admiral A R Horton AO ……..………..................................…
Member
CATCHWORDS
VETERANS’ AFFAIRS - Veterans Entitlements - Disability Pension – whether Applicant’s condition of Ischaemic Heart Disease was war caused – Applicant’s smoking habit – whether SoP factor has been met – reasonable hypothesis.
Veterans’ Entitlements Act 1986: sections 119, 120 and 120A
Statement of Principles No 38 of 1999
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
Robertson and Repatriation Commission (1998) 50 ALD 668
Re Cornelius and Repatriation Commission [2001] AATA 890
Repatriation Commission v Cornelius [2002] FCA 750 (14 June 2002)
Repatriation Commission v Bey (1997) 79 FCR 364
Mason v Repatriation Commission [2000] FCA 1409
REASONS FOR DECISION
26 June 2003 Rear Admiral A R Horton AO, Member 1.This is an application to the Administrative Appeals Tribunal (“the Tribunal”) by Leslie Johnston (“the Applicant”) for review of a decision of the Repatriation Commission (“the Respondent”) dated 2 June 2001 as affirmed by the Veterans’ Review Board on 1 February 2002. That decision refused a claim for Ischaemic Heart Disease and continued the disability pension at 70% of the General Rate. The Applicant lodged an application for review by the Tribunal on 11 April 2002.
2.At the hearing before the Tribunal on 2 May 2003, the Applicant was represented by Mr N Dawson of Counsel. Mr J Marsh, Senior Advocate, represented the Respondent. The Applicant gave oral evidence, as did Mrs Lilian Johnston, Mr John Carroll, Mrs Beryl Fisher, Mr John Hawkins and Mr Gary Shannon.
3.The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act1975.. The Tribunal also took into evidence the following:
Exhibit A1 Statement by the Applicant (undated)
Exhibit R1 Clinical notes of Dr K Wong, General Practitioner
Exhibit R2 Clinical notes of Dr P Russell, Cardiologist
Exhibit R3 Veterans’ Review Board Transcript of 1 February 2002
ISSUES
4. On 5 April 2001, the Applicant lodged a claim for Ischaemic Heart Disease which was refused on the basis that there was no service relationship to “smoking and stress”.. The pension for accepted disabilities continued at 70% of the General Rate. The Respondent accepts that the Applicant has the condition of Ischaemic Heart Disease, but that the smoking history does not satisfy the criteria in the relevant Statement of principles (“SOP”), that is No 38 of 1999, the Applicant having operational…
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- Johnston and Repatriation Commission [2003] AATA 595
- Case
- [2003] AATA 595
- Decision Date
CaseChat Overview and Summary
The court considered relevant legal precedents, including Byrnes v Repatriation Commission and Repatriation Commission v Deledio, to understand the application of the reasonable hypothesis test. It also evaluated the statutory provisions under sections 119, 120, and 120A of the Veterans’ Entitlements Act 1986. The court found that the evidence presented by Johnston sufficiently established a causal link between his ischaemic heart disease and his service, even when accounting for his smoking habit. The court concluded that the Repatriation Commission's denial of the claim was not supported by the evidence and that the reasonable hypothesis was met.
The Federal Court set aside the decision of the Repatriation Commission and determined that Johnston's ischaemic heart disease was war-caused as of 5 January 2001. The court remitted the matter back to the Repatriation Commission to assess the appropriate rate of pension payable to Johnston. This outcome underscored the importance of evaluating all evidence and applying the reasonable hypothesis test fairly when determining veterans' entitlements.
Orders
Orders of the court
The decision under review is therefore set aside, and in substitution, the Tribunal determines that the condition of Ischaemic Heart Disease is war-caused with effect from 5 January 2001, and the matter is remitted to the Respondent to assess the rate of pension payable to the Applicant.
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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