Kowalski v Repatriation Commission

Case [2008] AATA 903


Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 903

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Nos.     2007/4985 and

VETERANS' APPEALS DIVISION )  2008/4243
Re KAZIMIR KOWALSKI

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date9 October 2008

PlaceAdelaide

Decision

The decision under review as varied by the decision of the Veterans’ Review Board is affirmed.

D G Jarvis
  (Signed)
  Deputy President

CATCHWORDS

VETERANS' ENTITLEMENTS – disability pension – eligible defence service – hypertension, ischaemic heart disease, depression and anxiety – work related stress during service – date of clinical onset of claimed conditions – nature of AAT’s inquisitorial role – evidentiary onus to adduce evidence – appropriate clinical management to be judged according to medical knowledge at time of service – whether factors in SoPs supported connection with service – decision under review affirmed

PRACTICE AND PROCEDURE – jurisdiction – application for review refers to decision of VRB instead of decision of respondent – obvious error does not vitiate application for review – held that AAT has jurisdiction.

Veterans’ Entitlements Act 1988 (Cth), ss 119(1), 120 (4) and 120B(3)

Administrative Appeals Tribunal Act 1975 (Cth), s 33(1)

Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353

Benjamin v Repatriation Commission (2001) 70 ALD 622

Bushell v Repatriation Commission (1992) 175 CLR 408

Fenner v Repatriation Commission (2005) 218 ALR 122

Lees v Repatriation Commission (2002) 125 FCR 331

McDonald v Director-General of Social Security (1984) 1 FCR 354

McKenna v Repatriation Commission (1999) 86 FCR 144

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Ousley v R (1997) 192 CLR 69

R v Cawthorne; ex parte Public Service Association of SA Inc (1977) 17 SASR 321

Re Cunningham and Repatriation Commission [2007] AATA 1790

Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303

Re Robertson and Repatriation Commission (1998) 50 ALD 668

Repatriation Commission v Cornelius [2002] FCA 750

Repatriation Commission v Gorton (2001) 110 FCR 321

Repatriation Commission v Wellington (1999) 57 ALD 507

Roncevich v Repatriation Commission (2005) 222 CLR 115

Somerset v Repatriation Commission [2005] FCA 1399

REASONS FOR DECISION

9 October 2008   Deputy President D G Jarvis

1.      The applicant, Kazimir Kowalski, enlisted for National Service on 20 April 1972, and was discharged from the Army on 19 October 1973.

2.      On 6 March 2007 he lodged a claim for disability pension under the Veterans’ Entitlements Act 1986 (Cth) (VE Act) for a number of conditions that were regarded by the Repatriation Commission as major depression with co-morbid anxiety, hypertension and ischaemic heart disease. He claimed that the conditions were defence caused. The Commission rejected his claim, and he applied to the Veterans’ Review Board (VRB) for review of the Commission’s decision.

3.      The VRB decided to vary the decision under review by substituting diagnoses of depressive disorder and anxiety disorder for the previously diagnosed condition of major depression with co-morbid anxiety, but otherwise affirmed the…

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AGLC
Kowalski v Repatriation Commission [2008] AATA 903
Case
[2008] AATA 903
Decision Date

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal (AAT) was an appeal by a veteran against the Repatriation Commission's decision to deny his claim for a disability pension, on the basis that his conditions of hypertension, ischaemic heart disease, depression, and anxiety were not connected to his service. The veteran alleged that his conditions arose from work-related stress during his service. The dispute was heard in the Federal Circuit Court of Australia, which has jurisdiction under the Administrative Appeals Tribunal Act 1975 to review decisions made by the Repatriation Commission.

The legal issues before the court were whether the Tribunal had jurisdiction to hear the appeal and, if so, whether the decision of the Repatriation Commission was correct. The court needed to determine the date of clinical onset of the veteran’s claimed conditions, the nature of the AAT’s inquisitorial role, the evidentiary onus to adduce evidence, and whether the factors in the Schedule of Pensionable Conditions supported a connection with service. The court was also required to determine whether the Repatriation Commission's decision was open to review under the Veterans' Entitlements Act 1988.

The court found that the Tribunal had jurisdiction to hear the appeal, despite the application for review referring to the decision of the Veterans Review Board rather than the decision of the respondent. The court held that an obvious error did not vitiate the application for review. The court further found that the decision of the Repatriation Commission was correct as it was open to the Tribunal to affirm the decision, having regard to the evidence before it. The court held that the veteran had failed to discharge the onus of proving that his conditions were connected with his service. The court found that the clinical onset of the veteran's claimed conditions occurred after his service and that the factors in the Schedule of Pensionable Conditions did not support a connection with service. The court also held that appropriate clinical management was to be judged according to medical knowledge at the time of service.

The final orders of the court were that the decision under review as varied by the decision of the Veterans’ Review Board was affirmed.

Orders

Orders of the court

The decision under review as varied by the decision of the Veterans’ Review Board is 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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