Peckham and Repatriation Commission - [2004] AATA 1329

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1329
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2003/255

VETERANS' APPEALS DIVISION )

Re DONALD PECKHAM

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J Handley, Senior Member
Associate Professor J Maynard, Member
Mr C Ermert, Member
Date14 December 2004
PlaceMelbourne

Decision The decision under review is affirmed.
(Sgd) John Handley
Senior Member

VETERANS’ AFFAIRS – applicant engaged in FESR service – hypothesis of alcohol and cigarette consumption precipitating colorectal cancer and traumatic injury precipitating cervical spondylosis – application remitted for rehearing by Federal Court – concession of requisite quantities of alcohol and cigarettes consumed – prior history of alcohol and cigarette consumption – whether an increase by service – sub hypothesis of generalised anxiety disorder or depressive disorder – significant pre FESR event – raised facts not accepted beyond reasonable doubt – no sufficient grounds for the factual foundation of the hypotheses – decision under review affirmed
Veterans’ Entitlements Act 1986
Repatriation Commission v Deledio (1998) 49 ALD 193
Bushell v Repatriation Commission (1992) 109 ALR 30
Repatriation Commission v McKenna (1998) 28 AAR 7
McKenna v Repatriation Commission (1999) 29 AAR 70
Statements of Principles Instrument No. 1 of 2004
Statements of Principles Instrument No. 25 of 1996
Statements of Principles Instrument No. 31 of 1999
Statements of Principles Instrument No. 50 of 2002
Statements of Principles Instrument No. 81 of 2002
REASONS FOR DECISION

14 December 2004   Mr J Handley, Senior Member
  Professor J Maynard, Member
  Mr C Ermert, Member

1.      This application has a long history and is summarised as follows.
2.      Mr Peckham is presently 70 years of age having been born on 15 May 1934. He was a member of the Australian Army between 10 August 1956 and 7 October 1976. Relevantly he served in Malaya as part of the Far Eastern Strategic Reserve (“FESR”) between 25 September 1957 and 18 October 1959. He was engaged as a vehicle storeman and was attached to the 28^th Commonwealth Brigade which consisted of 4 Infantry Battalions made up of English, Australian and New Zealand personnel. The Battalion was under the control of the British.
3.      On 19 September 1994 the respondent decided that a claimed condition of carcinoma of the rectum was not war-caused. The applicant challenged that decision and on 27 February 1996 the Veterans’ Review Board (“VRB”) affirmed it.
4.      In 1999 the applicant made another application upon the respondent for acceptance of the conditions of malignant neoplasm of the rectum, incisional hernia, ocular hypertension, chronic bronchitis and emphysema, cervical spondylosis, myopia and diabetes. That claim was rejected. It was challenged before the VRB and on 27 March 2001 the VRB decided to affirm that decision except that it did find that ocular hypertension was war-caused and the application was remitted to the respondent for assessment of pension.
5.      The applicant appealed against that decision in proceedings lodged in this Tribunal by application V2001/443. The review was heard by a Senior Member…

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 Peckham and Repatriation Commission

Details

AGLC: Peckham and Repatriation Commission [2004] AATA 1329
Case: [2004] AATA 1329
Decision Date: 14 December 2004

CaseChat Overview and Summary

The parties involved in this case were Peckham and the Repatriation Commission. The dispute arose from a decision made by the Commission regarding a claim for a pension by Peckham. The matter was heard in the Federal Court of Australia. The court was tasked with reviewing the decision of the Commission and determining whether it was lawful, reasonable, and just.

The legal issues that the court had to decide included whether the Commission had correctly interpreted the relevant legislation in making its decision, and whether the decision was based on a proper consideration of the evidence. The court also had to determine whether the decision was within the scope of the Commission's powers, and whether there was any error in the application of the law.

The court found that the Commission had correctly interpreted the relevant legislation and had made its decision based on a proper consideration of the evidence. The court held that the decision was within the scope of the Commission's powers and that there was no error in the application of the law. The court therefore affirmed the decision of the Commission.

Orders

Orders of the court

The decision under review is affirmed.

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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