Liefman and Repatriation Commission - [2000] AATA 455

DECISION AND REASONS FOR DECISION [2000] AATA 455

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº V99/887
VETERANS'      APPEALS       DIVISION)
           Re:     PETER LIEFMAN
  Applicant
           And     REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal: Mrs H.E. Hallowes, Senior Member

Date:9 June 2000
Place:Melbourne

Decision: The decision under review is affirmed.

(sgd) H.E. Hallowes
Senior Member
VETERANS' AFFAIRS — entitlement —sterilisation by vasectomy — whether disease or injury — whether war-caused — exposure to chemicals — effect of service on decision to undergo vasectomy
Veterans' Entitlements Act 1986 ss.5D, 9, 19, 120 196B

Repatriation Commission v Cooke (1998) 52 ALD 1
Australian Postal Corporation v Burch (1998) 156 ALR 483
Repatriation Commission v Brown (1990) 12 AAR 253
Repatriation Commission v Law (1980) 31 ALR 140
Re Felton and Commonwealth of Australia (1984) 1 AAR 322

REASONS FOR DECISION

9 June 2000 Mrs H.E. Hallowes, Senior Member
Application

Mr Liefman seeks review of a decision of the Repatriation Commission made on 17 January 1997, which was affirmed by Veterans' Review Board ("the VRB") on 2 July 1999, refusing his claim that he is entitled to be paid pension in respect of the disability "sterility". Mr Liefman was advised by a delegate of the Repatriation Commission that his claim for "voluntary sterilization by vasectomy has been refused". The delegate noted that Mr Liefman had operational service in Vietnam between 18 May 1971 and 4 November 1971 as part of his National Service and that the Repatriation Medical Authority ("the RMA") had not issued a Statement of Principles ("SoPs") under section 196B of the Veterans' Entitlements Act 1986 ("the Act") concerning voluntary sterilization by vasectomy.
Evidence
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents"). Mr G. Moore, of counsel, represented Mr Liefman at the hearing and Mr B. Lilley, an officer of the Department of Veterans' Affairs, appeared for the Repatriation Commission.
In opening Mr Liefman's case Mr Moore advised the Tribunal that the parties agreed that the claim for disability pension with respect to Mr Liefman's infertility was for a closed period between 6 February 1996 and 1 March 1997. The documents include an adviCe to Mr Liefman dated 10 January 1983 from Dr A. Polglase, general surgeon, who performed Mr Liefman's vasectomy, that Mr Liefman's post-vasectomy semen analysis indicated that he could now consider himself sterile. The date 6 February 1996 is the earliest date from which Mr Liefman could be paid pension, being three months before he lodged his claim for disability pension. On 17 June 1996 Mr Liefman underwent further operation to reverse the effects of his vasectomy. The date 1 March 1997 is the date by which Mr Liefman is satisfied that the effects of his vasectomy had been reversed. Mr Liefman now has two children born on 15 February 1998 and 18 June 1999 respectively.
When lodging his claim Mr Liefman advised the Repatriation Commission that:
. . .
Following service in Vietnam in 1971, I was made aware of the likelihood…

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 Liefman and Repatriation Commission

Details

AGLC: Liefman and Repatriation Commission [2000] AATA 455
Case: [2000] AATA 455
Decision Date: 9 June 2000

CaseChat Overview and Summary

The case before the court involves Mr Liefman who is seeking a review of the Repatriation Commission's decision dated 17 January 1997, which was subsequently affirmed by the Veterans' Review Board on 2 July 1999. Mr Liefman is contesting the Commission's refusal to award him a pension for the disability of sterility resulting from a vasectomy he underwent following his service in Vietnam. The Repatriation Commission had informed Mr Liefman that his claim for pension concerning his voluntary sterilization was denied, citing the absence of a Statement of Principles issued by the Repatriation Medical Authority regarding voluntary sterilization by vasectomy.

The primary legal issue the court needed to address was whether Mr Liefman's sterility, which was a result of a voluntary vasectomy, qualifies as a disability for which he is entitled to a pension under the Veterans' Entitlements Act 1986. The court was tasked with determining the applicability of the statutory provisions concerning disabilities attributable to service and the criteria for pension entitlements. Additionally, the court had to consider whether the absence of a specific Statement of Principles precluded Mr Liefman from receiving pension benefits for his condition.

In reaching its decision, the court examined the legislative framework and the specific provisions of the Veterans' Entitlements Act 1986. The court noted that while Mr Liefman's sterility was indeed a consequence of his voluntary vasectomy, the absence of a Statement of Principles concerning voluntary sterilization by vasectomy under section 196B of the Act was a significant factor. The court held that without a formal Statement of Principles recognizing voluntary sterilization by vasectomy as a service-related disability, Mr Liefman's claim could not be substantiated. The court concluded that the statutory criteria for pension entitlement were not met in the absence of such a Statement of Principles.

The court's decision affirmed the Repatriation Commission's refusal to award Mr Liefman a pension for his sterility. The Tribunal upheld the earlier determinations of the Repatriation Commission and the Veterans' Review Board, finding that Mr Liefman's claim did not meet the statutory requirements for pension entitlement. The court's ruling effectively closed the matter, maintaining the status quo and declining to award the pension sought by Mr Liefman.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Liefman seeks review of a decision of the Repatriation Commission made on 17 January 1997, which was affirmed by Veterans' Review Board ("the VRB") on 2 July 1999, refusing his claim that he is entitled to be paid pension in respect of the disability "sterility". Mr Liefman was advised by a delegate of the Repatriation Commission that his claim for "voluntary sterilization by vasectomy has been refused". The delegate noted that Mr Liefman had operational service in Vietnam between 18 May 1971 and 4 November 1971 as part of his National Service and that the Repatriation Medical Authority ("the RMA") had not issued a Statement of Principles ("SoPs") under section 196B of the Veterans' Entitlements Act 1986 ("the Act") concerning voluntary sterilization by vasectomy.Evidence The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents"). Mr G. Moore, of counsel, represented Mr Liefman at the hearing and Mr B. Lilley, an officer of the Department of Veterans' Affairs, appeared for the Repatriation Commission. In opening Mr Liefman's case Mr Moore advised the Tribunal that the parties agreed that the claim for disability pension with respect to Mr Liefman's infertility was for a closed period between 6 February 1996 and 1 March 1997. The documents include an adviCe to Mr Liefman dated 10 January 1983 from Dr A. Polglase, general surgeon, who performed Mr Liefman's vasectomy, that Mr Liefman's post-vasectomy semen analysis indicated that he could now consider himself sterile. The date 6 February 1996 is the earliest date from which Mr Liefman could be paid pension, being three months before he lodged his claim for disability pension. On 17 June 1996 Mr Liefman underwent further operation to reverse the effects of his vasectomy. The date 1 March 1997 is the date by which Mr Liefman is satisfied that the effects of his vasectomy had been reversed. Mr Liefman now has two children born on 15 February 1998 and 18 June 1999 respectively. When lodging his claim Mr Liefman advised the Repatriation Commission that:. . . Following service in Vietnam in 1971, I was made aware of the likelihood that exposure to various chemicals on service could result in the malformation of children born to Vietnam veterans.It was for this reason that I sought to have a vasectomy, . . . . Mr Liefman was married between 1975 and 1981. There had been no need for him to take action with respect to contraception as birth control measures were undertaken by his wife. Between 1981 and 1994, Mr Liefman was in a relationship and he became concerned about contraception. He was apprehensive that, if he had a child, it may suffer birth defects because of his exposure to chemicals in Vietnam. It was a risk he did not want to take. His concern was sufficient for him to take action. He consulted a surgeon and underwent vasectomy. After forming a new relationship in 1995 he decided to seek a reversal of his vasectomy as he and his partner wanted children. He told the Tribunal that, by 1996, he had acquired greater knowledge about any potential risk to children if a parent had been exposed to chemicals and he decided to take that risk. He is now aware of the findings of the Evatt Royal Commission with respect to Agent Orange but, in his view, there remains material which contradicts that presented to the Royal Commission. Legislation

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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