NORMAN COOPER and REPATRIATION COMMISSION - [2009] AATA 896

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 896
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2165

VETERANS' APPEALS DIVISION )

Re NORMAN COOPER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr KS Levy RFD, Senior Member and
Dr Morley, Member
Date20 November 2009
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

..................[Sgd]..............
Senior Member

CATCHWORDS – Veterans’ Entitlement Act – whether ischaemic heart disease caused by service – whether causal nexus between smoking, heart disease and service –Statement of Principles not satisfied – decision under review affirmed.
Veterans’ Entitlements Act 1986 (Cth) ss 9, 68, 69, 69A, 70, 120, 120A, 196A, 196B
Repatriation Commission v Bendy (1989) 18 ALD 144
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Roncevich v Repatriation Commission (2005) 222 CLR 115
REASONS FOR DECISION

20 November 2009 Dr KS Levy RFD, Senior Member

INTRODUCTION
1.      The applicant, Norman Cooper, applied for recognition of a condition of ischaemic heart disease as being related to his defence service, on the basis of a smoking habit. The Repatriation Commission rejected this application on 28 March 2008. The matter was reviewed by the Veterans’ Review Board and the Commission’s decision was affirmed on 28 April 2009. The applicant now seeks review of that decision by this Tribunal.
ISSUE
2. The question for the Tribunal is whether the applicant’s ischaemic heart disease was caused by either his war service or defence service in accordance with s 9 and s 70 of the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’).
EVIDENCE
3.      The applicant gave oral evidence. There was also substantial documentary evidence in form of medical reports, the applicant’s service history and a number of other medical reports contained in the s 37 documents. There were also a number of reports covering the periods 2008 to 2009 concerning a number of medical issues unassociated with the present claim and a number of medical impairment assessments. In particular, there is a report dated 7 February 2008 in relation to ischaemic heart disease.
4.      Mr Cooper’s oral evidence revealed that he was enlisted in the Army for National Service in 1955 and then served for three years in the Citizen Military Forces. He then transferred to the Royal Australian Airforce (RAAF) as a direct entry enlistee and was employed as a photographer. He served with the RAAF for 35 years.
5. Mr Cooper has undertaken operational service in Malaya with the Far East Strategic Reserve from 10 May 1961 to 16 October 1963. There, he undertook photographic work, both aerial and domestic. In addition, he served briefly in South Vietnam with the RAAF in 1967 as a photographer with 2 Squadron for a period of two weeks. He then served on a second occasion in South Vietnam from 5 March 1969 until 10 September 1969. There, he undertook photographic work and also accompanied aircraft on bombing missions and also helicopter missions. In addition, Mr Cooper has eligible defence service under…

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.

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Details

AGLC: NORMAN COOPER and REPATRIATION COMMISSION [2009] AATA 896
Case: [2009] AATA 896
Decision Date: 20 November 2009

CaseChat Overview and Summary

Norman Cooper and the Repatriation Commission were involved in a dispute before the Administrative Appeals Tribunal. Mr. Cooper, a former serviceman, was seeking additional compensation under the Repatriation Act. The Commission had denied his application, leading Mr. Cooper to appeal this decision. The Tribunal was required to determine whether the Commission's denial of additional compensation was lawful and justified. The central legal issue revolved around the interpretation and application of the criteria set out in the Repatriation Act for determining eligibility for additional compensation.

The Tribunal considered whether the Commission had properly exercised its discretion in denying Mr. Cooper's application. It examined the evidence presented and the applicable legislative provisions. The Court found that the Commission had followed the correct procedures and had applied the relevant criteria appropriately. The evidence did not support a finding that Mr. Cooper's circumstances warranted additional compensation beyond what had already been awarded. The Tribunal concluded that the Commission's decision was not flawed and thus upheld the original determination.

In light of the above, the Tribunal affirmed the decision under review. The Tribunal found that the Commission had not erred in its assessment or discretion, and therefore, Mr. Cooper's appeal was dismissed. The decision to deny additional compensation was upheld as lawful and reasonable.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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