Patterson and Repatriation Commission - [2005] AATA 758

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 758
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/653
VETERANS' APPEALS DIVISION

Re: DAVID MITCHELL PATTERSON
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       G.D. Friedman, Senior Member
Date:             9 August 2005
Place:            Melbourne
Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
Senior Member

VETERANS’ AFFAIRS ‑ hypertension - obesity - salt supplement - alcohol consumption - whether related to service
Veterans’ Entitlements Act 1986 ss 9(1), 119 (1)(h), 120(4), 120A
Fogarty v Repatriation Commission (2003) 37 AAR 363
Hardcastle v Repatriation Commission (2001) 33 AAR 485
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Re Sharkey and Repatriation Commission (1988) 15 ALD 782
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Law (1980) 31 ALR 140
REASONS FOR DECISION
9 July 2005  G.D. Friedman, Senior Member
1.      This is an application by David Mitchell Patterson (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 4 May 2004. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 30 September 2003 that the applicant’s hypertension was not related to his service.
2.      At the hearing of this matter on 23 May 2005 and 30 June 2005 Mr G. Chancellor of counsel represented the applicant. Ms J. McCulloch, an advocate with the Department of Veterans’ Affairs (the Department), represented the respondent.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T13), with six exhibits (Exhibits A1‑A6) tendered by the applicant and five exhibits (Exhibits R1-R5) tendered by the respondent.
BACKGROUND
4.      The applicant was born on 23 October 1945. After completing secondary education he studied civil engineering at Monash University, and after graduation he was employed by the Country Roads Board in bridge construction. He was called up for National Service and served in the Australian Army (the army) from 22 April 1970 until 9 December 1971. The applicant served in Vietnam from 4 February 1971 until 30 October 1971, which constitutes operational service in accordance with the Veterans’ Entitlements Act 1986 (the Act).
5.      After leaving the army the applicant returned to the Country Roads Board where he remained until 1978. He then began working with the Victorian Railways as an engineer specialising in bridge construction. In 1998 his employer was privatised, and he joined the company as a manager of bridge engineering services, and he remains in that position.
6.      On 14 August 2003 the applicant lodged a claim to have hearing loss and tinnitus, diabetes type 2 and hypertension accepted as war-caused. On 30 September 2003 a delegate of the respondent determined that bilateral sensorineural hearing loss, bilateral tinnitus and diabetes mellitus were war-caused. However, the delegate determined that hypertension was not accepted as war‑caused.
7.      On 15 October 2003 the applicant applied to the VRB for review of the respondent’s decision of 30 September 2003. Following the VRB…

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 Patterson and Repatriation Commission

Details

AGLC: Patterson and Repatriation Commission [2005] AATA 758
Case: [2005] AATA 758
Decision Date: 9 August 2005

CaseChat Overview and Summary

The case involves David Mitchell Patterson, who applied for review of a decision by the Veterans' Review Board affirming a decision by the Repatriation Commission that his hypertension was not related to his service in the Australian Army. Patterson served in Vietnam from February to October 1971 and was diagnosed with hypertension in 1978. Patterson claimed that his hypertension was related to his service, specifically due to increased alcohol consumption and salt intake during his service. The Tribunal had to decide whether Patterson's hypertension was connected to his service under the Veterans' Entitlements Act 1986.

The key legal issues were whether Patterson's hypertension was a war-caused condition and if the relevant Statement of Principles concerning hypertension applied. Patterson argued that his hypertension was related to his service based on increased alcohol consumption and salt intake during his service. The Repatriation Commission argued that Patterson's claims were speculative and not supported by objective evidence.

The Tribunal considered the evidence and submissions from both sides. It found that Patterson's claims about his alcohol consumption and salt intake during service were speculative and not supported by objective evidence. The Tribunal concluded that Patterson did not meet the criteria in the relevant Statement of Principles for hypertension. Therefore, the Tribunal affirmed the original decision that Patterson's hypertension was not related to his service.

The final orders were that the Tribunal affirmed the decision under review, meaning the original decision by the Repatriation Commission that Patterson's hypertension was not related to his service remained in place.

Orders