Kellett and Repatriation Commission - [2002] AATA 752

DECISION AND REASONS FOR DECISION [2002] AATA 752

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/633
) No N2000/1465

VETERANS' APPEALS DIVISION          )
           Re      VINCENT ALBERT JOSEPH KELLETT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr M E C Thorpe, Member Professor T M Sourdin, Member

Date2 September 2002
PlaceSydney

Decision The tribunal affirms the decision under review in application N2001/633. The tribunal varies the decision under review in application N2000/1465 by deciding that the applicant's aortic aneurysm and chondromalacia patellae are war-caused diseases. The applicant qualifies for a Disability Pension in respect of his aortic aneurysm and chondromalacia patellae with effect from the first pension payday on or after 16 August 1999. The matter is remitted to the respondent for it to assess the appropriate rate of pension.

[SGD] M J SASSELLA
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension – whether veteran has war-caused anxiety disorder – whether veteran experienced a severe psychosocial stressor within two years immediately before clinical onset of anxiety disorder – whether veteran has war-caused alcohol dependence or alcohol abuse – whether veteran has war-caused hypertension – whether veteran ingested at least 12 grams of salt supplements a day on average for a continuous period of at least six months immediately before clinical onset of hypertension – whether veteran suffers from aortic aneurysm – whether veteran smoked at least five cigarettes a day for at least three years before clinical onset of aortic aneurysm.

Veterans' Entitlements Act 1986 ss 14(3), 20(1), 120(1), (3), (4), 120A(1), (3)175(3)

Statement of Principles 76/98 concerning alcohol dependence or alcohol abuse
Statement of Principles 5/94 concerning psychoactive substance abuse and dependence
Statement of Principles 31/2001 concerning hypertension
Statement of Principles 64/98 concerning hypertension
Statement of Principles 66/98 concerning aortic aneurysm
Statement of Principles 1/2000 concerning anxiety disorder

Benjamin v Repatriation Commission (2001) 34 AAR 270
Budworth v Repatriation Commission (2001) 63 ALD 402
Bull v Repatriation Commission [2001] FCA 1832
Cooke, Repatriation Commission v (1998) 90 FCR 307
Deledio, Repatriation Commission v (1998) 49 ALD 193
Gorton, Repatriation Commission v (2001) 33 AAR 370
Kattenberg v Repatriation Commission (2002) 34 AAR 562
Robertson and Repatriation Commission, Re (1998) 50 ALD 668
Smith, Repatriation Commission v (1987) 74 ALR 537
Williams, Repatriation Commission v [2001] FCA 1195

REASONS FOR DECISION

2 September 2002 Mr M J Sassella, Senior Member Dr M E C Thorpe, Member Professor T M Sourdin, Member

THE APPLICATIONS BEFORE THE TRIBUNAL

Application N2000/1465 is an application to the Administrative Appeals Tribunal ("the tribunal") by Vincent Albert Joseph Kellett ("the applicant"), date of birth 13 March 1937 (ex TD1/T4), for the review of a decision of the Veterans' Review Board ("the VRB") dated 15 August 2000 (ex TD1/T11) affirming a decision of the Repatriation Commission ("the respondent") dated 24 February 2000 rejecting the applicant's claim for a Disability Pension in respect of hypertension, aortic aneurysm and chondromalacia patellae affecting both knees (ex TD1/T6).
Application N2001/633 is an application by…

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 Kellett and Repatriation Commission

Details

AGLC: Kellett and Repatriation Commission [2002] AATA 752
Case: [2002] AATA 752
Decision Date: 2 September 2002

CaseChat Overview and Summary

The case of Kellett and Repatriation Commission involves a dispute regarding the eligibility of the applicant for a Disability Pension under the Veterans' Entitlements Act 1986. The applicant, a veteran, seeks to have certain conditions recognised as war-caused diseases, including anxiety disorder, alcohol dependence or abuse, hypertension, aortic aneurysm, and chondromalacia patellae. The tribunal was tasked with determining whether these conditions met the criteria for war-caused diseases and, if so, whether the applicant was entitled to a Disability Pension.

The primary legal issues before the tribunal were whether the applicant's conditions were caused by his service and, if so, whether they warranted a Disability Pension. The tribunal needed to consider the statutory provisions and relevant Statements of Principles concerning each condition. The applicant argued that his conditions were war-caused, while the respondent contended otherwise. The tribunal had to examine the evidence presented, including medical records, expert opinions, and the Statements of Principles, to ascertain the factual and legal merits of the applicant's claims.

After thorough consideration of the evidence and legal arguments, the tribunal concluded that the applicant's aortic aneurysm and chondromalacia patellae were war-caused diseases. The tribunal found that the applicant had demonstrated a causal link between his service and these conditions, meeting the criteria under the Veterans' Entitlements Act 1986. The tribunal rejected the claims regarding anxiety disorder, alcohol dependence or abuse, and hypertension as they did not meet the necessary statutory criteria. Consequently, the tribunal affirmed the decision under review in one application and varied the decision in another, finding that the applicant qualified for a Disability Pension for his war-caused conditions.

The tribunal's final orders were to affirm the decision under review in application N2001/633 and to vary the decision in application N2000/1465 by recognising the applicant's aortic aneurysm and chondromalacia patellae as war-caused diseases. The matter was remitted to the respondent for the assessment of the appropriate rate of pension. The tribunal's decision was based on the evidence and legal principles outlined in the case, ensuring that the applicant's entitlements were determined in accordance with the relevant statutory provisions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant will therefore qualify for a Disability Pension at a rate to be assessed by the respondent and with effect from the first pension payday on or after 16 August 1999.DECISION The tribunal affirms the decision under review in application N2001/633. The tribunal varies the decision under review in application N2000/1465 by deciding that the applicant's aortic aneurysm and chondromalacia patellae are war-caused diseases. The applicant qualifies for a Disability Pension in respect of his aortic aneurysm and chondromalacia patellae with effect from the first pension payday on or after 16 August 1999. The matter is remitted to the respondent for it to assess the appropriate rate of pension.I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member. Dr M E C Thorpe, Member and Professor T M Sourdin, MemberSigned: ..................................................................................... AssociateDate of Hearing 9 November 2001 Date of Decision 2 September 2002Counsel for the Applicant Mr M T Vesper Solicitor for the Applicant NSW Legal Aid Commission Counsel for the Respondent Ms S Breuer, DVA Advocacy Service Solicitor for the Respondent Mr J Marsh, DVA

Ratio Decidendi

Legal Principle Established

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