Newson and Repatriation Commission - [2007] AATA 1539

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1539
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/999

VETERANS' APPEALS DIVISION )

Re CEDRIC NEWSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N. Isenberg, Senior Member
Dr S. H Toh, Member
Date11 July 2007
PlaceSydney

Decision
The decision of the Tribunal is to:

(a)      Affirm the decision under review in relation to lumbar spondylosis;

(b)      Set aside the decision under review in relation to osteoarthrosis of the right hip and both knees, and determine that those conditions are war-caused; and

(c)       Remit the matter to the Repatriation Commission for assessment of Mr Newson’s entitlements to pension in accordance with these reasons for decision, and on the basis that his entitlement to pension in respect of the conditions of osteoarthrosis of the right hip and both knees will commence from 16 March 2005.

.................[sgd]...........................
Ms N. Isenberg
Senior Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – eligible war service – claim that lumbar spondylosis and osteoarthrosis of both knees and hip are war caused – consideration of Statement of Principles – clinical onset of conditions – decision under review in relation to lumbar spondylosis affirmed – decision under review in relation to osteoarthrosis of both knees and hip set aside and remitted to the Repatriation Commission
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) – sections 7, 9, 13, 120, 120B, 196A and 196B
Statements of Principles – Instrument Numbers 47 of 2002 and 38 of 2005 concerning lumbar spondylosis and Instrument Numbers 82 of 2001, 31 of 2005 and 32 of 2005 concerning osteoarthrosis
CASE LAW
Gorton v Repatriation Commission [2001] FCA 286
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Re Watson and Repatriation Commission [2007] AATA 1205
Kattenberg v Repatriation Commission [2002] FCA 412
REASONS FOR DECISION

11 July 2007

Ms N Isenberg, Senior Member
Dr S. H. Toh, Member

Decision Under Review
1.        The Applicant is seeking review of a decision by the Respondent, dated 25 October 2005, that rejected his claim to have the conditions of lumbar spondylosis, osteoarthrosis of both knees and the right hip, and spondylolytic spondylolisthesis attributed to his service in the Royal Australian Air Force (“RAAF”). This decision was affirmed by the Veterans’ Review Board (“the VRB”) on 19 July 2006.
Issue before the Tribunal
2.        At the beginning of the hearing, counsel for the veteran withdrew the application for review insofar as it related to spondylolisthesis.
3.        The issue to be considered by the Tribunal was whether the claimed conditions were related to the veteran’s service.
Background
4.        Mr Newson (“the veteran”) served in the RAAF between 3 November 1942 and 6 January 1947.
5. Mr Newson did not serve outside Australia. Therefore, pursuant to section 7 of the Veterans’ Entitlements Act 1986 (“the VEA”), Mr Newson’s service is defined as eligible war service and not operational service.
Legislative Background
6. Section 9 of the VEA outlines…

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 Newson and Repatriation Commission

Details

AGLC: Newson and Repatriation Commission [2007] AATA 1539
Case: [2007] AATA 1539
Decision Date: 11 July 2007

CaseChat Overview and Summary

The applicant, Mr Newson, sought a review of the decisions made by the Repatriation Commission concerning his eligibility for war service pensions. The Commission had denied his claims regarding lumbar spondylosis and osteoarthrosis of both knees and hip, which Mr Newson asserted were caused by his war service. The case was heard by the Administrative Appeals Tribunal, tasked with reviewing the Commission's decision.

The primary legal issues before the Tribunal were whether the lumbar spondylosis and the osteoarthrosis of both knees and hip were caused by Mr Newson's war service and thus eligible for pension benefits. The Tribunal needed to consider the Statement of Principles concerning the conditions and the clinical onset of these conditions, as well as the evidence presented by Mr Newson. The Tribunal had to determine if the Commission correctly applied the relevant legislative criteria and if the evidence supported the claims of causation and onset.

In its decision, the Tribunal found that the Commission had correctly affirmed the decision regarding the lumbar spondylosis. However, concerning the osteoarthrosis of both knees and hip, the Tribunal held that the Commission's decision was flawed. The Tribunal set aside the decision on these conditions and determined that they were indeed war-caused. The Tribunal then remitted the matter back to the Commission for reassessment of Mr Newson's pension entitlements, specifying that his entitlement for osteoarthrosis of the right hip and both knees should commence from 16 March 2005.

The Tribunal's final orders were to affirm the decision regarding the lumbar spondylosis, set aside the decision regarding the osteoarthrosis of the right hip and both knees, and determine these conditions as war-caused. The matter was to be remitted to the Repatriation Commission for reassessment of Mr Newson's pension entitlements, effective from 16 March 2005.

Orders

Orders of the court

The decision of the Tribunal is to:

(a) Affirm the decision under review in relation to lumbar spondylosis;

(b) Set aside the decision under review in relation to osteoarthrosis of the right hip and both knees, and determine that those conditions are war-caused; and

(c) Remit the matter to the Repatriation Commission for assessment of Mr Newson’s entitlements to pension in accordance with these reasons for decision, and on the basis that his entitlement to pension in respect of the conditions of osteoarthrosis of the right hip and both knees will commence from 16 March 2005.

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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