Lemay and Repatriation Commission - [2006] AATA 380

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 380
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/70

VETERANS’ APPEALS DIVISION )

Re ALAN LEMAY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Ms R Hunt
Member Dr P Lynch
Date1 May 2006
PlaceSydney

Decision
The tribunal sets aside that part of the reviewable decision that Mr Lemay does not suffer from war-caused ischaemic heart disease and diabetes mellitus and, in substitution, decides that Mr Lemay presently suffers from ischaemic heart disease and diabetes mellitus and that those conditions are war-caused diseases within the meaning of s9 of the Act with effect from and including 30 July 2002.

..............................................
Ms R Hunt
Presiding Member

CATCHWORDS
Veterans’ Affairs – disability pension - applicant rendered operational service with Royal Australian Air Force and eligible service with peace keeping forces – applicant suffering ischaemic heart disease (IHD) and diabetes mellitus - hypothesis that applicant began smoking during service and became obese during service – hypothesis as to obesity reasonable – Statement of Principles satisfied – reasonable hypothesis connecting condition to operational service – not satisfied beyond reasonable doubt that diabetes and IHD condition were not war-caused - reasonable satisfaction that applicant’s diabetes mellitus and IHD war caused – decision set aside
Veterans’ Entitlements Act 1986 – ss. 120,120A, 20, 177, 9,
Statements of Principles –
- instrument no 83 of 1999, as amended by instruments no 10 and 92 of 2001
- instrument no 12 of 2004
- instrument no 82 of 1999, as amended by instruments no 9 and 91 of 2001
- instrument no 11 of 2004
- instrument no 54 of 2003, as amended by instrument no 10 of 2004
- instrument no 53 of 2003, as amended by instrument no 9 of 2004
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Bey (1997) 79 FCR 364
East v Repatriation Commission (1987) 16 FCR 517
Bull v Repatriation Commission (2001) 188 ALR 756
Cooke v Repatriation Commission (1997) 45 ALD 205
REASONS FOR DECISION

1 May 2006 Senior Member Ms R Hunt
Member Dr P Lynch

SUMMARY

1.      Mr Lemay applied to the tribunal for review of a decision made by the Repatriation Commission which refused him an increase in pension for war-caused ischaemic heart disease. The decision under review was made on 3 October 2003. It refused a claim for the disorder and other conditions but accepted others and assessed disability pension at 80% of the general rate. The Veterans’ Review Board affirmed the decision on 16 December 2004. The tribunal has decided that Mr Lemay’s ischaemic heart disease is a result of his obesity which developed through the periods of his operational and eligible service. The link is established in terms of the statements of principle dealing with obesity, diabetes and ischaemic heart disease. Our reasoning is set out below. This means that Mr Lemay has succeeded in the review.
BACKGROUND
2.      Mr Lemay served in the RAAF from 17 July 1967…

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 Lemay and Repatriation Commission

Details

AGLC: Lemay and Repatriation Commission [2006] AATA 380
Case: [2006] AATA 380
Decision Date: 1 May 2006

CaseChat Overview and Summary

In the case of Lemay and Repatriation Commission, the dispute centred on the applicant's eligibility for a disability pension under the Veterans' Entitlements Act 1986, with specific focus on whether his ischaemic heart disease (IHD) and diabetes mellitus were war-caused conditions. The matter was reviewed by the Federal Court of Australia. The applicant had served in the Royal Australian Air Force and had also been involved in peacekeeping operations. He contended that his medical conditions were linked to his military service.

The primary legal issue before the court was whether there was a reasonable hypothesis connecting the applicant's conditions to his operational service. The relevant legislative provisions required the court to consider the Statements of Principles concerning the conditions in question. The applicant argued that his onset of smoking and obesity during service provided a reasonable hypothesis for the development of his IHD and diabetes. The Repatriation Commission, on the other hand, maintained that the applicant's conditions were not war-caused and had not been established beyond reasonable doubt as being attributable to his service.

The court examined the evidence and found that there was a reasonable hypothesis that the applicant's IHD and diabetes mellitus were connected to his operational service. The court highlighted that while there was no direct evidence linking the applicant's smoking and obesity to his service, the hypothesis was reasonable and could not be dismissed. The applicant's conditions met the criteria in the relevant Statements of Principles, and the court concluded that the Commission's decision to deny war-causation was unreasonable. The court set aside the decision that the applicant's conditions were not war-caused and substituted its own decision that they were indeed war-caused, with effect from 30 July 2002.

Orders

Orders of the court

The tribunal sets aside that part of the reviewable decision that Mr Lemay does not suffer from war-caused ischaemic heart disease and diabetes mellitus and, in substitution, decides that Mr Lemay presently suffers from ischaemic heart disease and diabetes mellitus and that those conditions are war-caused diseases within the meaning of s9 of the Act with effect from and including 30 July 2002.

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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1 May 2006	Senior Member Ms R Hunt Member Dr P Lynch
SUMMARY