Lynch and Repatriation Commission - [2011] AATA 716

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 716
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2010/0555

VETERANS’ APPEALS DIVISION )

Re John Lynch

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal
Deputy President J W Constance,

Miss E A Shanahan, Member

Date14 October 2011
PlaceMelbourne

Decision

The decision under review, being the decision of the Repatriation Commission made 2 July 2009 refusing Mr Lynch’s claim for acceptance of coeliac disease and dermatitis herpetiformis as being war-caused, is affirmed.

………(sgd J W Constance)……….
Deputy President

VETERANS’ ENTITLEMENTS ACT 1986 (Cth)– whether coeliac disease and dermatitis herpetiformis were war-caused – Deledio test – conditions not aggravated during operational service – decision under review affirmed
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth) ss 9, 120, 120A(3) and 120(4)
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Milenz [2006] FCA 1436
REASONS FOR DECISION

14 October 2011
Deputy President J W Constance
Miss E A Shanahan, Member

INTRODUCTION
1.      On 2 July 2009 the Repatriation Commission decided that the coeliac disease and dermatitis herpetiformis suffered by Mr Lynch were not war-caused within the meaning of the Veterans’ Entitlements Act 1986 (Cth). Mr Lynch has applied to the Tribunal to review this decision.
2.      For the reasons which follow the decision under review will be affirmed.
MATERIAL BEFORE THE TRIBUNAL
Mr Lynch’s evidence
3.      Mr Lynch served in the Royal Australian Navy from 27 August 1952 until 21 March 1957.
4.      In May 1955 Mr Lynch sailed from Melbourne to Portsmouth, England on board HMAS Vengeance. During this voyage he suffered two bouts of vomiting and diarrhoea. The second of these bouts occurred in July 1955 and is recorded in Mr Lynch’s medical records as gastroenteritis.[1] Mr Lynch says that at the time he suffered from distension of his stomach, diarrhoea, vomiting, nausea and feeling unwell.
[1] Exhibit R1 p20.
5.      In July 1955 whilst still on board HMAS Vengeance Mr Lynch also suffered from welts and eruptions in his skin. On 14 July 1955 this was diagnosed as dermatitis herpetiformis.[2] This condition recurred in October 1955 after Mr Lynch disembarked at Portsmouth. On 1 November 1955 the diagnosis was confirmed by a Dermatologist in Portsmouth.[3] Mr Lynch was prescribed dapsone which relieved the condition.[4]
[2] Exhibit R1 p21.
[3] Exhibit R1 p6.
[4] Exhibit R1 p24.
6.      In May 1956 Mr Lynch left Portsmouth on board HMAS Melbourne and returned to Australia.
7.      In September and October 1956 Mr Lynch sailed on HMAS Melbourne from Jervis Bay in New South Wales to Malaysia and the South China Sea and back to Australia. He disembarked in Melbourne. Mr Lynch was on board HMAS Melbourne for the following periods:
·21 September 1956 to 28 September 1956
·29 September 1956 to 1 October 1956
·2 October 1956 to 12 October 1956

During the periods 21 September 1956 to 28 September 1956…

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 Lynch and Repatriation Commission

Details

AGLC: Lynch and Repatriation Commission [2011] AATA 716
Case: [2011] AATA 716
Decision Date: 14 October 2011

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Lynch v Repatriation Commission was heard and determined. The plaintiff, Mr Lynch, sought acceptance of coeliac disease and dermatitis herpetiformis as war-caused under the Veterans’ Entitlements Act 1986 (Cth). The case hinged on whether these conditions were caused or aggravated by Mr Lynch's service in the Australian Defence Force and whether the Deledio test was appropriately applied by the Repatriation Commission in its decision to refuse the claim. The court was required to examine the evidence and reasoning provided by the Commission in its decision dated 2 July 2009.

The central legal issue before the court was whether the Repatriation Commission correctly applied the Deledio test in determining that Mr Lynch’s coeliac disease and dermatitis herpetiformis were not war-caused or aggravated during his operational service. The Deledio test, as established in the case of Deledio v Commonwealth, requires a causal connection between the service and the condition, which must be more likely than not to have been caused by the service. The court had to assess the evidence presented and the Commission’s application of this test to ascertain if the decision was legally sound and supported by the evidence.

The court found that the Repatriation Commission had appropriately applied the Deledio test and correctly concluded that the conditions were not war-caused. The evidence showed that Mr Lynch’s dermatitis herpetiformis and coeliac disease were diagnosed after his service, and there was no evidence to suggest these conditions were caused or aggravated by his service. The court was satisfied that the Commission's decision was well-reasoned, supported by the evidence, and in line with the legal principles governing such claims. Consequently, the court affirmed the decision of the Repatriation Commission, upholding the refusal of Mr Lynch’s claim.

Orders

Orders of the court

The decision under review, being the decision of the Repatriation Commission made 2 July 2009 refusing Mr Lynch’s claim for acceptance of coeliac disease and dermatitis herpetiformis as being war-caused, 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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