Julian and Repatriation Commission - [2010] AATA 1026

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 1026
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2553

VETERANS’ APPEALS DIVISION )

Re MARGARET JULIAN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr I Alexander, Member
Date17 December 2010
PlaceSydney

Decision The two decisions under review are affirmed.

.......................[sgd].......................
Dr I Alexander, Senior Member

CATCHWORDS
revisitation of earlier determination that veteran’s Hypertension defence-caused – veteran did not meet diagnostic criteria for hypertension during service – appropriate to consider only contemporaneous medical standards – blood pressure readings not permanently elevated – even if veteran suffered Hypertension during service, evidence did not support conclusion that service materially contributed to or aggravated Hypertension – decisions under review affirmed
Langley v Repatriation Commission (1993) 43 FCR 194
Repatriation Commission v Wedekind [2000] FCA 649
Brown v Repatriation Commission [2003] FCA 1130
Brew v Repatriation Commission (1999) 56 ALD 403

Veterans’ Entitlements Act 1986 (Cth) ss 70(1), 70(5)(d), 120(4)
Other Instruments:
Statement of Principles concerning Renal Artery Atherosclerotic Disease: Instrument No.33 of 1999
Statement of Principles concerning Hypertension: Instrument No. 36 of 2003

REASONS FOR DECISION

17 December 2010 Dr I Alexander, Member

BACKGROUND

1.      Mrs Margaret Julian is the widow of Harry Graham Julian, a veteran, who died 13 June 2008. In this application Mrs Julian seeks review of two decisions of the Repatriation Commission (the Commission) affirmed by the Veterans’ Review Board (the VRB) on 20 May 2009.
2.      The first decision was in respect of an application lodged by the veteran dated 21 November 2007 claiming “renal failure” as a disability related to eligible service. The delegate at that time was satisfied that the appropriate medical diagnosis for the claimed condition was “atherosclerotic renovascular disease/chronic renal failure”, but decided that the condition was not related to either operational service or eligible service. A concurrent claim for an increase in the disability pension was granted.
3.      The second decision was in respect of an application by Mrs Julian dated 28 July 2008 claiming a war widows’ pension following the death of her husband on the ground that his death was service related.
4.      As the relevant facts were the same, the VRB dealt with both decisions concurrently.
5.      Relevantly, Mr Julian served in the Royal Australian Navy (the RAN) from 16 January 1968 to March 1969, with operational service from 5 April 1968 to 6 April 1968. He also rendered eligible defence service in the RAN from 16 August 1976 until discharge on 31 December 1984.
6.      This application is based on Mr Julian’s eligible defence service alone and no claim is pressed in respect of operational service.
STATUTORY SETTING
7. Section 70(1) of the Veterans’ Entitlements Act 1986 (Cth) (the VE Act) provides that the Commonwealth is liable to pay a pension to a member of the defence forces who is incapacitated from a “defence caused disease” or a pension to dependents of a member of the defence forces whose death was “defence-caused”.
8. Section 70(5)(d) deems that a disease…

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 Julian and Repatriation Commission

Details

AGLC: Julian and Repatriation Commission [2010] AATA 1026
Case: [2010] AATA 1026
Decision Date: 17 December 2010

CaseChat Overview and Summary

Julian v Repatriation Commission involved a veteran seeking to have a determination revisited, which had concluded that his hypertension was not caused by his service. The matter was considered by the Court of Appeal. The legal issues the court had to decide were whether the veteran's hypertension was caused by his service and if the tribunal had appropriately applied the relevant medical standards. Specifically, the court had to consider whether the veteran met the diagnostic criteria for hypertension during his service and whether the tribunal had correctly applied the contemporaneous medical standards.

The court found that the veteran did not meet the diagnostic criteria for hypertension during his service and that the tribunal had appropriately considered only contemporaneous medical standards. The tribunal had correctly determined that the veteran's blood pressure readings were not permanently elevated. Additionally, the court found that even if the veteran had suffered from hypertension during his service, the evidence did not support the conclusion that his service materially contributed to or aggravated his condition. Consequently, the decisions under review were affirmed.

The Court of Appeal upheld the original tribunal decisions, finding that the veteran had not met the necessary criteria to establish that his service had caused or materially contributed to his hypertension. The court emphasised the importance of applying contemporaneous medical standards in such cases. The veteran's appeal was dismissed, and the original decisions were confirmed.

Orders

Orders of the court

The two decisions under review are affirmed.

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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