McPherson and Repatriation Commission - [2007] AATA 1148

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1148
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2005/1262

VETERANS’ APPEALS DIVISION )

Re FRANK McPHERSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N. Isenberg, Senior Member
Dr I. Alexander, Member
Date20 March 2007
PlaceSydney

Decision
The decision under review is affirmed.

……..……...[sgd]................
N. Isenberg,
Senior Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – claim that hypertension and ischaemic heart disease were war-caused – consideration of evidence, legislation and Statement of Principles – the Tribunal decides that the decision under review is affirmed.
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 9, 120(1), 120(3), 120(4), 120A, 196B,
Statement of Principles – Instrument No 35 of 2003 concerning Hypertension; Instrument No 53 of 2003 concerning Ischaemic Heart
Bull v Repatriation Commission (2001) 66 ALD 271
East v Repatriation Commission (1987) 16 FCR 517
Elliott v Repatriation Commission (2002) 73 ALD 377
Hardman v Repatriation Commission (2004) 82 ALD 433
Lees v Repatriation Commission (2002) 125 FCR 331
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Milenz [2006] FCA 1436
REASONS FOR DECISION

20 March 2007

Ms N Isenberg, Senior Member and Dr I Alexander, Member

DECISION UNDER REVIEW
1.        The decision under review is the decision of the Repatriation Commission dated 17 August 2004 as affirmed by the Veterans’ Review Board (“the VRB”) on 8 September 2005 that refused the claim by Frank McPherson (‘the veteran’) that his hypertension and ischaemic heart disease were related to service.
ISSUE(S) BEFORE THE TRIBUNAL
2.        The issues to be considered by the Tribunal are whether Mr McPherson’s hypertension and ischaemic heart disease were war (or defence) caused.
BACKGROUND
3.      Mr McPherson served in the Royal Australian Navy from 18 January 1950 to 17 January 1956 and from 16 July 1956 to 19 September 1977. His eligible war service was from 28 February 1962 to 16 March 1962. There was no dispute that this was operational service as defined in S 6C of the Veterans’ Entitlements Act 1986 (“the VE Act”).
4. Mr McPherson also rendered eligible defence service as defined in Part IV of the VE Act from 7 December 1972 to 19 September 1977.
LEGISLATIVE FRAMEWORK
5. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, if, inter alia, it resulted from an occurrence that happened while the veteran was rendering operational service.
6.      Notwithstanding the submissions made on Mr McPherson’s behalf it was also necessary to consider the less beneficial provisions applicable to the veteran’s eligible defence service.
7.      In considering Mr McPherson's eligible defence service subsection 120(4) applies and we must decide whether his conditions were defence caused on the balance of probabilities.
8. As the veteran had operational service, the determination of whether his claimed conditions are war-caused is to be made by applying ss 120(1) and 120(3) 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 McPherson and Repatriation Commission

Details

AGLC: McPherson and Repatriation Commission [2007] AATA 1148
Case: [2007] AATA 1148
Decision Date: 20 March 2007

CaseChat Overview and Summary

In the case before the court, the applicant, McPherson, contested the Repatriation Commission's decision to deny his claim for a war-related cause of his hypertension and ischaemic heart disease. The matter was heard and determined by the Federal Court of Australia. McPherson argued that his health conditions were caused by his operational service during his time in the military, and therefore, he was entitled to compensation under the Veterans’ Entitlements Act 1986. The Commission, however, maintained that McPherson's health conditions were not caused by his service and denied his claim.

The primary legal issue before the court was whether McPherson's hypertension and ischaemic heart disease were caused by his operational service, entitling him to compensation. To determine this, the court considered the evidence presented by both parties, relevant legislation, and the applicable Statements of Principles. The court also reviewed previous case law to understand the standards and principles that should be applied in this context.

Upon reviewing the evidence and applicable legal frameworks, the court determined that the Commission's decision was correct and should be affirmed. The court found that the evidence did not sufficiently support a causal link between McPherson's health conditions and his operational service. Furthermore, the court noted that the Statements of Principles did not classify McPherson's conditions as war-caused. Based on this, the court held that the Commission's decision was not flawed and was in accordance with the law.

The court's decision was affirmed, and the Commission's denial of McPherson's claim was upheld. The court found no errors in the Commission's decision-making process and concluded that the evidence did not establish the required causal link between McPherson's health conditions and his operational service.

Orders

Orders of the court

The decision under review 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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