Moran and Repatriation Commission - [2011] AATA 546

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 546
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0562

GENERAL ADMINISTRATIVE DIVISION )

Re Christopher Moran

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal
Mr R P Handley, Deputy President

Dr S H Toh, Member

Date8 August 2011
PlaceSydney

Decision The decision under review is affirmed.
.....................[sgd]....................
Mr R P Handley
Deputy President

CATCHWORDS
VETERANS’ AFFAIRS – entitlements - disability support pension – defence service - defence-caused disease – clinical worsening – Tribunal not satisfied on the balance of probabilities that clinical worsening of condition was contributed to in a material degree or aggravated by defence service – decision under review affirmed
RELEVANT ACT
Veterans’ Entitlement Act 1986: ss 68, 70, 120, 120B
CITATIONS
Repatriation Commission v Yates (1995) 57 FCR 241; (1995) 38 ALD 80, [1995] FCA 1234
Repatriation Commission v Milenz (2006) 93 ALD 107; (2006) 43 AAR 565; [2006] FCA 1436
OTHER AUTHORITIES
Statement of Principles concerning Anxiety Disorder No 102 of 2007 dated 5 September 2007
Amendment Statement of Principles concerning Anxiety Disorder No 43 of 2010 dated 22 April 2010
Amendment Statement of Principles concerning Anxiety Disorder No 16 of 2011 dated 14 December 2010
Statement of Principles concerning Alcohol Dependence and Alcohol Abuse No 2 of 2009 dated 19 December 2008
Statement of Principles concerning Ischaemic Heart Disease No 90 of 2007 dated 5 September 2007
Amendment Statement of Principles concerning Ischaemic Heart Disease No 44 of 2009 dated 19 June 2009
Amendment Statement of Principles concerning Ischaemic Heart Disease No 97 of 2010 dated 27 October 2010
REASONS FOR DECISION

8 August 2011 Mr R P Handley, Deputy President

Dr S H Toh, Member

1.      Mr Moran has applied to the Tribunal for a review of a decision of the Veterans’ Review Board (VRB) affirming a decision of the Repatriation Commission that his anxiety condition, alcohol abuse and ischaemic heart disease are not related to service.
Background
2.      Mr Moran was born in 1951 and is aged 60. He served in the Royal Australian Air Force (RAAF) from 27 May 1969 to 26 May 1975, of which the period from 7 December 1972 to 26 May 1975 constitutes ‘defence service’ as defined in s 68 of the Veterans’ Entitlement Act 1986 (the Act).
3.      Mr Moran has the following accepted injuries or diseases: bilateral sensorineural hearing loss with tinnitus, lumbar spondylosis, tinea of the skin, and otitis externa of both ears. He receives a disability pension at 90% of the General Rate. On 4 June 2009, his claim in respect of, amongst other conditions, anxiety disorder, alcohol abuse and ischaemic heart disease was refused on the ground that these conditions are not related to service. Mr Moran sought a review of this decision which, on 20 November 2009, was affirmed by the VRB. On 11 February 2010, Mr Moran sought a further review by the Tribunal.
4.      Mr Moran contends that his anxiety condition is in part caused by his reaction…

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 Moran and Repatriation Commission

Details

AGLC: Moran and Repatriation Commission [2011] AATA 546
Case: [2011] AATA 546
Decision Date: 8 August 2011

CaseChat Overview and Summary

The matter of Moran and Repatriation Commission involved the applicant, Moran, seeking disability support pension entitlements under the Veterans' Entitlement Act 1986. Moran claimed that his clinical worsening of a condition was materially contributed to or aggravated by his defence service. The Repatriation Commission reviewed and upheld the original decision, denying Moran's claim. This decision was then challenged by Moran, who sought a review by the court.

The primary legal issues before the court were whether the Tribunal's findings were correct in concluding that the clinical worsening of Moran's condition was not contributed to or aggravated in a material degree by his defence service. The court had to examine the evidence presented and determine if the Tribunal's decision was supported by the balance of probabilities. It also had to consider the relevant legislative provisions and Statements of Principles concerning various conditions.

The court, after examining the evidence and applicable legal principles, found that the Tribunal's decision was supported by the evidence. The court held that the Tribunal was not satisfied on the balance of probabilities that Moran's clinical worsening was contributed to or aggravated in a material degree by his defence service. The court concluded that the Tribunal's findings were reasonable and that the decision under review was correct. The court affirmed the decision of the Repatriation Commission, dismissing Moran's appeal.

No further orders were made by the court. The decision under review was affirmed, maintaining the original decision of the Repatriation Commission.

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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GENERAL ADMINISTRATIVE DIVISION		)
Re		Christopher Moran

8 August 2011	Mr R P Handley, Deputy President
Dr S H Toh, Member