McPhee and Repatriation Commission - [2006] AATA 771

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 771

ADMINISTRATIVE APPEALS TRIBUNAL VETERANS’ APPEALS DIVISION		) ) N2005/1567 )
Re	RONALD MCPHEE
Applicant
And	REPATRIATION COMMISSION
Respondent
DECISION
Tribunal	Mr I R Way, Member
Date	8 September 2006
Place	Sydney
Decision	The decision under review is affirmed.

[Sgd] Mr I R Way
Member

CATCHWORDS

VETERANS’ ENTITLEMENT – decision under review concerning Applicant’s claim for dilated cardiomyopathy – consideration of legislation – issue as to whether the Applicant’s alcohol consumption during the relevant period is connected with the circumstances of his eligible war service – consideration of any causal connection and whether the Applicant’s cardiomyopathy is on the balance of probabilities connected with his service – consideration of evidence and legislation - the decision under review is affirmed.

Veterans’ Entitlement Act 1986 – sections 7(1)(c), 9(1)(b), 196B(14).

Administrative Appeals Tribunal Act 1975

Kattenberg v Repatriation Commission [2002] FCA 412

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

Repatriation Commission v Tuite (1993) 29 ALD 609

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

REASONS FOR DECISION

8 September 2006	Mr I R Way, Member
introduction

This is an application by Mr Ronald McPhee (“the Applicant”) for review of a decision made by the Veterans’ Review Board (“VRB” or “the Board”) on 18 November 2005, affirming a decision of the Repatriation Commission (“the Respondent”), dated 27 March 2003, which refused the Applicant’s claim for Dilated Cardiomyopathy.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (T1-T18) and other documentary evidence marked as Exhibits A1 to A5 for the Applicant and R1 to R5 for the Respondent.
Mr McPhee’s application to this Tribunal was dated 15 December 2005. Sadly, the Applicant passed away on 16 April 2006. In his last will and testament, the Applicant appointed his wife Barbara McPhee as the sole executrix of his will and she duly appointed Mr Tony Latimore (of the Vietnam Veterans’ Association) as the deceased’s representative to continue his application. Mr Latimore appeared before the Tribunal and presented the Applicant’s case. Mr Tim O’Reilly represented the Respondent. Mrs McPhee gave evidence by telephone.

background

There is no dispute about the background facts in this matter and in view of this and on the material before it the Tribunal makes the following findings of fact:
(a)The Applicant was born on 29 April 1925 and served in the Royal Australian Air Force from 18 December 1943 to 26 July 1945, the whole of the service being on the eastern seaboard of Australia.
(b)The Applicant rendered eligible war service under section 7(1)(c) of the Veterans’ Entitlement Act 1986 (“the Act”).
(c)The Applicant suffered from Dilated Cardiomyopathy which had its clinical onset in 1997.
(d)The relevant Statement of Principles for the Applicant’s heart disorder is Instrument No 20 of 1998, Cardiomyopathy (as amended by Instrument No 23 of 2002) (“the Relevant SOP”).
(e)The only relevant factor in this case in the Relevant…

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 McPhee and Repatriation Commission

Details

AGLC: McPhee and Repatriation Commission [2006] AATA 771
Case: [2006] AATA 771
Decision Date: 8 September 2006

CaseChat Overview and Summary

The case before the court involved a veteran, McPhee, who had lodged a claim for dilated cardiomyopathy under the Veterans’ Entitlement Act 1986, which was subsequently reviewed by the Repatriation Commission. The primary dispute was whether McPhee's cardiomyopathy was connected to his service in the armed forces, specifically whether his alcohol consumption during his service period had any bearing on the development of his condition. The matter was heard in the Federal Court of Australia.

The central legal issues for the court to determine were whether there was a causal connection between McPhee's service and his cardiomyopathy, and if so, whether the Repatriation Commission's decision to deny his claim was lawful. The court needed to consider the relevant statutory provisions, including sections 7(1)(c), 9(1)(b), and 196B(14) of the Veterans’ Entitlement Act, as well as relevant case law. The court also examined the applicable administrative law principles and the evidence presented in the case.

The court, in its reasoning, thoroughly assessed the evidence and the statutory framework. It found that the evidence did not sufficiently establish a causal connection between McPhee's service and his cardiomyopathy, especially considering the role of alcohol consumption. The court held that the Repatriation Commission's decision was consistent with the evidence and the law. The court emphasised the burden of proof on the applicant to demonstrate a link between the condition and the service, and it was satisfied that this burden had not been met. Consequently, the court affirmed the decision under review, dismissing McPhee's appeal.

There were no additional orders made by the court beyond affirming the decision of the Repatriation Commission. The court's decision underscores the importance of clear evidence and legal reasoning in veterans' entitlement claims, particularly when considering complex issues such as the interplay between lifestyle factors and service-related conditions.

Orders