PETER JOHN BYRNE Applicant And REPATRIATION COMMISSION Respondent - [2007] AATA 1488

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1488
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600272

VETERANS' APPEALS DIVISION )

Re PETER JOHN BYRNE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr Kerry Breen, Member
Date29 June 2007
PlaceMelbourne

Decision The Tribunal affirms the decision under review.
(sgd) Kerry Breen
Member

VETERANS’ AFFAIRS – diabetes and its consequences – whether conditions attributable to cigarette smoking – relationship to stress in defence work
Veterans’ Entitlements Act 1986 ss 70, 120 and 120B(1)
Repatriation Commission v Smith (1987) 74 ALR 537
Doolette v Repatriation Commission (1990) 21 ALD 489
Repatriation Commission v Edwards, Federal Court, 3 September 1993, G250/1993
REASONS FOR DECISION

29 June 2007 Dr Kerry Breen, Member

DECISION UNDER REVIEW
1.      Peter John Byrne served in the Royal Australian Air Force (RAAF) from 1965 to 1985 as a supply officer. On 21 April 2005 he applied for a pension under the Veterans’ Entitlements Act 1986 (the Act) on the basis that he is incapacitated from defence-caused diseases. Those diseases are type 2 diabetes mellitus, ischaemic heart disease and atherosclerotic peripheral vascular disease. The Repatriation Commission (the respondent) rejected his claim on the basis that those diseases were not defence-caused. The Veterans’ Review Board (VRB) affirmed that decision on 14 February 2006.
2.      However, the respondent did accept that Mr Byrne is suffering from type 2 diabetes mellitus, ischaemic heart disease and atherosclerotic peripheral vascular disease. Therefore, I accept that Mr Byrne is suffering from those diseases. Mr Byrne contends that his diabetes mellitus arose out of or was attributable to his defence service on the basis that he resumed smoking cigarettes in 1973 as a result of stress that he experienced during his service. If I accept Mr Byrne’s contention, the parties and I accept that his other two diseases also arose out of or were attributable to his defence service; so that Mr Byrne would be eligible for a pension in respect of all three diseases.
3.      I have decided that I am not reasonably satisfied that Mr Byrne’s starting to smoke again in 1973 arose out of or was attributable to his defence service. Therefore, I am not satisfied that any of his diseases is a defence-caused disease. Accordingly, I affirm the decision of the VRB.
4. The relevant sections of the Act include section 70, section 120 and section 120B(1). The effect of sections 70(1)(b) and (d) of the Act is that the Commonwealth must pay a pension by way of compensation to a member of the Armed Forces if that member is, among other matters, incapacitated from a defence caused disease. As a member of the RAAF, Mr Byrne is a member of the Armed Forces. A disease is taken to be a defence-caused disease if, in so far as it is relevant, the disease … arose out of, or was attributable to any defence service... of the member (section 70(5)). There is no question that Mr Byrne has defence…

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

Case: [2007] AATA 1488
Decision Date: 29 June 2007

CaseChat Overview and Summary

In the case of Peter John Byrne against the Repatriation Commission, the Federal Court was presented with a dispute regarding the denial of a pension claim by the applicant, Peter John Byrne. Byrne, who was a former serviceman, sought a pension based on his service and subsequent disabilities. The Repatriation Commission had previously rejected his claim, leading to this legal challenge. The court was tasked with determining whether the Commission's decision was legally sound and properly justified.

The primary legal issue before the court was whether the Repatriation Commission's decision to deny Peter John Byrne's pension claim was lawful and supported by appropriate evidence. This involved examining the interpretation of relevant legislation and regulations, as well as assessing the adequacy of the evidence provided by both parties. The court needed to consider whether the Commission had correctly applied the law in making its decision and whether it had acted within its statutory powers.

The court found that the Repatriation Commission's decision was well-founded and correctly applied the relevant legislative framework. It was determined that the Commission had adequately assessed the evidence and had acted within its authority. The court concluded that Byrne's claim was not substantiated by the evidence provided, and therefore upheld the Commission's decision. Consequently, the Tribunal affirmed the decision under review, rejecting Byrne's appeal.

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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