McFarlane and Repatriation Commission - [2008] AATA 832

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 832
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0390

VETERANS' APPEALS DIVISION )

Re KEVIN JOHN McFARLANE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President S D Hotop
Dr M E C Thorpe, Member
Date17 September 2008
PlacePerth (Heard in Sydney)

Decision
The Tribunal varies the decision of the Veterans’ Review Board, dated 17 January 2007, by changing the description of the applicant’s condition from “chronic obstructive pulmonary disease” to “chronic bronchitis and emphysema”, but otherwise affirms that decision.

.......[sgd S D Hotop]......
Deputy President

CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant served in Royal Australian Navy from October 1966 to December 1973 – applicant rendered operational service 18-25 November 1968 – applicant smoked cigarettes from October 1966 to September 2007 – applicant suffers from chronic bronchitis and emphysema – Statement of Principles (SoP) – material before Tribunal raises hypothesis that applicant’s chronic bronchitis and emphysema connected with operational service – raised hypothesis not upheld by SoP – raised hypothesis not a reasonable hypothesis – Tribunal satisfied beyond reasonable doubt that no sufficient ground for determining that applicant’s chronic bronchitis and emphysema war-caused – applicant’s chronic bronchitis and emphysema not war-caused – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 7(1), s 9(1), s 120, s 120A and s 196B
Statement of Principles concerning Chronic Bronchitis and Emphysema (Instrument No 30 of 2004)
Bull v Repatriation Commission (2001) 188 ALR 756
Byrne v Repatriation Commission (2007) 97 ALD 359
Collins v Administrative Appeals Tribunal (2007) 96 ALD 536
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Repatriation Commission v Deledio (1998) 83 FCR 82
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION

17 September 2008 Deputy President S D Hotop
Dr M E C Thorpe, Member

Introduction
1.      Kevin John McFarlane (“the applicant”) served in the Royal Australian Navy (“RAN”) from 22 October 1966 to 8 December 1973. During his RAN service he rendered “operational service”, for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”), from 18 November 1968 to 25 November 1968, and “defence service” (other than “hazardous service”), for the purposes of the VE Act, from 7 December 1972 to 8 December 1973.
2. On 11 November 2005 the applicant lodged with the Department of Veterans’ Affairs a claim for a disability pension under the VE Act in respect of the following disabilities which he claimed were war-caused or defence-caused:
·     “hearing problems”;
·     “chronic bronchitis” and “breathing problems”; and
·     “solar skin damage”.

On 17 November 2005 the applicant lodged an additional claim in respect of “ischaemic heart disease” which he also claimed was war-caused or defence-caused.
3.      On 26 May 2006 a delegate of the Repatriation Commission (“the respondent”) decided that:
·     the applicant does not suffer from “hearing problems” or “ischaemic heart disease” or any other cardiac disease;
·     the applicant suffers from “non melanotic malignant neoplasm of the…

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 McFarlane and Repatriation Commission

Details

AGLC: McFarlane and Repatriation Commission [2008] AATA 832
Case: [2008] AATA 832
Decision Date: 17 September 2008

CaseChat Overview and Summary

In the case of McFarlane and Repatriation Commission, the applicant, a former member of the Royal Australian Navy who served from October 1966 to December 1973, sought a determination regarding his entitlement to a disability pension on the basis of his chronic bronchitis and emphysema. The applicant had smoked cigarettes throughout his service and post-service life, a factor which the Repatriation Commission argued undermined any causal link between his condition and his military service. The Federal Court of Australia was called upon to review the decision of the Veterans’ Review Board, which had rejected the applicant’s claim for pension entitlements based on his respiratory conditions.

The central legal issue was whether the Tribunal was correct in affirming the Veterans’ Review Board’s decision that the applicant's chronic bronchitis and emphysema were not caused by his operational service. This required an examination of the Statement of Principles concerning Chronic Bronchritis and Emphysema and whether the evidence supported a causal connection to the applicant’s military service. The Court needed to determine if the hypothesis that the applicant’s conditions were connected with his service was reasonable and whether the Tribunal's conclusion that there was no sufficient ground to determine a war-cause was justified.

The Court held that the Tribunal was correct in its determination that the hypothesis raised by the material before it, suggesting a connection between the applicant’s chronic bronchitis and emphysema and his operational service, was not upheld by the Statement of Principles. The Court found that the Tribunal was also correct in concluding that this hypothesis was not a reasonable one. The evidence did not sufficiently support a causal link between the applicant’s respiratory conditions and his military service, particularly given his long-term smoking habit. The Court affirmed the Tribunal's decision that there were no sufficient grounds to determine that the applicant’s chronic bronchitis and emphysema were war-caused.

The final order of the Court was to affirm the decision of the Veterans’ Review Board, with a variation in the description of the applicant’s condition from “chronic obstructive pulmonary disease” to “chronic bronchitis and emphysema”. This decision upheld the Tribunal's ruling that the applicant's pension entitlement claim was unfounded.

Orders

Orders of the court

The Tribunal varies the decision of the Veterans’ Review Board, dated 17 January 2007, by changing the description of the applicant’s condition from “chronic obstructive pulmonary disease” to “chronic bronchitis and emphysema”, but otherwise affirms that decision.

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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VETERANS' APPEALS DIVISION		)
Re		KEVIN JOHN McFARLANE