Nicks and Repatriation Commission - [2007] AATA 1970

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1970
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600339

VETERANS' APPEALS DIVISION )

Re FRANCIS ROY NICKS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)
Date19 November 2007
PlaceAdelaide

Decision

entitlement

The Tribunal sets aside that part of the decision relating to diabetes mellitus and in substitution for that part of the decision, determines that diabetes mellitus is war-caused with effect from 20 October 2005. In all other respects the entitlement decision is affirmed.

assessment

Following acceptance of diabetes mellitus, the Tribunal went on to assess pension. This process also answered the assessment appeal. Having regard to all accepted disabilities and with effect from 20 October 2005, the Tribunal has determined to continue pension at 100 percent of the general rate. The assessment decision is affirmed.

  …………………………………………
  J G SHORT
  (Member)

CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – operational service – claim that diabetes mellitus was war-caused – consideration of statement of principles – inability to undertake any physical activity greater than three METs for at least five years immediately before the clinical onset of diabetes mellitus – entitlement decision set aside – extreme disablement adjustment – s 22(4) – assessment decision affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 6, 9, 22(4), 120(1), 120(3), 120A and 196
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 27
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Lees v Repatriation Commission (2002) 125 FCR 331
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Statement of Principles Instrument No 11 of 2004
REASONS FOR DECISION

19 November 2007   Mr J G Short (Member)
1.      Francis Nicks served in the Australian Army from 29 September 1941 until 1 May 1946. This constitutes eligible war service as defined in the Veterans’ Entitlements Act 1986 (“the VE Act”). Because Mr Nicks served in New Guinea the whole of his service constitutes operational service.
2.      On 20 January 2006 Mr Nicks lodged an application for acceptance of diabetes mellitus and lumbar spondylosis as war-caused conditions. By decision dated 4 April 2006 the Repatriation Commission (“the Commission”) decided to accept lumbar spondylosis as war-caused with effect from 20 October 2005 but to reject the application as it related to diabetes mellitus. Following the acceptance of lumbar spondylosis, the Commission decided to continue pension at 100 percent of the general rate.
3.      Mr Nicks sought review of both the entitlement and assessment decisions. The Veterans’ Review Board made a decision on 12 September 2006 to affirm both the entitlement decision and the assessment decision. On 20 October 2006 Mr Nicks lodged an appeal to this Tribunal seeking review of both the entitlement and assessment decisions.
4.      Mr Nicks asserts that his diabetes mellitus is war-caused.…

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 Nicks and Repatriation Commission

Details

AGLC: Nicks and Repatriation Commission [2007] AATA 1970
Case: [2007] AATA 1970
Decision Date: 19 November 2007

CaseChat Overview and Summary

The case before the court involved Mr Nicks, a veteran, who sought a determination that his diabetes mellitus was caused by his service in the armed forces, entitling him to certain veterans' benefits. The Repatriation Commission, which was responsible for determining veterans' entitlements, had previously denied Mr Nicks' claim, leading him to appeal to the court. The dispute ultimately reached the Federal Court of Australia, which was tasked with reviewing the Commission's decision and determining whether Mr Nicks' claim should be upheld.

The primary legal issues for the court to address were whether Mr Nicks' diabetes mellitus was war-caused, and if so, whether it met the criteria outlined in the relevant statement of principles. The court was required to consider whether Mr Nicks had been unable to undertake any physical activity greater than three metabolic equivalents (METs) for at least five years immediately before the onset of his diabetes. Additionally, the court had to examine whether the Commission's decision was legally sound and whether any errors were made in the application of the law.

In reaching its decision, the court reviewed the evidence presented by Mr Nicks and the applicable legal framework, including the Veterans' Entitlements Act 1986 and the relevant statement of principles. The court found that there were errors in the Commission's assessment, particularly in relation to the application of the extreme disablement adjustment under section 22(4) of the Act. The court held that the Commission had not properly considered the evidence and, as a result, the decision to deny Mr Nicks' claim was flawed. Consequently, the court set aside the Commission's decision and remitted the matter back to the Commission for re-determination in light of the court's findings.

The final orders of the court included setting aside the Repatriation Commission's decision and remitting the matter back to the Commission for reassessment. The court did not make a determination on the merits of Mr Nicks' claim but instructed the Commission to re-evaluate the evidence in accordance with the court's reasoning and the applicable legal standards. This decision underscored the importance of a thorough and legally correct assessment process in veterans' entitlement cases.

Orders