Myler and Repatriation Commission - [2002] AATA 713

DECISION AND REASONS FOR DECISION [2002] AATA 713

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1442

VETERANS' APPEALS DIVISION          )
           Re      Douglas Leonard Myler
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Mr M D Allen, Senior Member

Date22 August 2002
PlaceLismore and Sydney

Decision The decision under review so far as relates to hypertension is set aside and the Tribunal substitutes in lieu thereof its decision namely THAT the Applicant Douglas Leonard Myler is entitled to pension for the war-caused disease of Hypertension as and from the 13 April 1999. AND THAT this matter is remitted to the Repatriation Commission in order that it may assess the rate of pension to be paid for all war-caused injuries and diseases suffered by the Applicant.

(Sgd) M D ALLEN
..............................................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS: Hypertension. Whether sub-hypothesis of alcohol abuse raised on the material adduced. Facts raised to be negatived beyond reasonable doubt in order to defeat claim. Effect of conflict of definitions in a later Statement of Principles.

Veterans' Entitlements Act 1986 - s6A, s120A

Repatriation Commission v Gorton [2001] FCA 1194
Repatriation Commission v Deledio 83 FCR 82
McGlynn v Repatriation Commission 1 RPD 210
McKenna v Repatriation Commission 86 FCR 144
O'Neil v Repatriation Commission [2001] FCA 1492
Goodwin v Phillips 7 CLR 1
Butler v Attorney General (Vic) 106 CLR 268

REASONS FOR DECISION

Mr M D Allen, Senior Member

By application lodged with the Tribunal on 21 September 2001 the Applicant sought review of that part of a decision by the Repatriation Commission on 13 July 1999 that refused his claim for Hypertension.
As the Applicant had operational service, as that term is defined in section 6A of the Veterans' Entitlements Act 1986 (VEA), the standard of proof in this matter is that provided by subsections 120(1) and (3) VEA. Those subsections provide inter alia that the Tribunal shall be satisfied that the Applicant's disease of Hypertension was war-caused unless is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied, if after consideration of the whole of the material before it, it is of the opinion the said material does not raise a reasonable hypothesis connecting the said disease with the circumstances of the particular service rendered by the veteran. Section 120A VEA provides that a hypothesis will not be reasonable unless it conforms to a so-called Statement of Principles. Subsection 120(6) VEA provides that no party to this review bears any onus of proof.
In this matter two Statements of Principle are applicable, the first of those is Instrument No 31 of 2001 concerning Hypertension and the other is Instrument No 76 of 1998 concerning alcohol dependence or alcohol abuse. At the time the Respondent Repatriation Commission made the original decision in this matter, the Statement of Principles relating to Hypertension was Instrument No 25 of 1999 however as Instrument No 31 of 2001 is as favourable to the Applicant…

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 Myler and Repatriation Commission

Details

AGLC: Myler and Repatriation Commission [2002] AATA 713
Case: [2002] AATA 713
Decision Date: 22 August 2002

CaseChat Overview and Summary

In this case, Myler was the applicant and the Repatriation Commission was the respondent. Myler was seeking compensation for a condition related to his service in the Defence Force. The dispute was over whether the condition, hypertension, was related to his service, particularly if alcohol abuse was a factor. The case was heard in the Federal Court of Australia. The court needed to decide if the evidence showed that alcohol abuse was a factor in Myler's hypertension and whether this was a sub-hypothesis that needed to be disproven to defeat his claim. Another issue was how a later Statement of Principles, which had different definitions, affected the case.

The court considered how the definitions in the Veterans' Entitlements Act 1986 interacted with the evidence presented. They looked at previous cases to understand how the law should be applied. They examined whether the burden of proof was on Myler to show that alcohol abuse did not cause his hypertension. The court also looked at how changes in the definitions in a later Statement of Principles affected the case. They concluded that the onus was on Myler to prove that his hypertension was not due to alcohol abuse, and that the new definitions did not change the outcome of the case.

The court found that the evidence did not prove that alcohol abuse was a factor in Myler's hypertension. They decided that the definitions in the later Statement of Principles did not change the outcome. The court ruled in favour of Myler, allowing his claim for compensation. The court ordered that Myler was entitled to the compensation he sought for his hypertension, as it was related to his service.

Orders