Phillip Tovey and Repatriation Commission - [2014] AATA 837

[2014] AATA 837

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2014/2371

Re

Phillip Tovey

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President I R Molloy

Date 6 November 2014

Place Brisbane
The Tribunal affirms the decision under review.

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Deputy President I R Molloy
CATCHWORDS
VETERANS’ AFFAIRS – Varicose Veins of the Lower Limbs – Chronic Obstructive Pulmonary Disease - Hypertension – Chronic Bronchitis and Emphysema – Whether conditions defence-caused injuries or diseases – Not related to service – Decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), ss 70, 120, 120B
CASES
Kaluza v Repatriation Commission [2011] FCAFC 97
Gorton v Repatriation Commission (2001) 63 ALD 723
SECONDARY MATERIALS
Statement of Principles concerning Chronic Bronchitis and Emphysema, No. 31 of 2004 (revoked)
Statement of Principles concerning Chronic Obstructive Pulmonary Disease, No. 38 of 2014
Statement of Principles concerning Hypertension, No. 36 of 2003 (revoked)
Statement of Principles concerning Hypertension, No. 64 of 2013
Statement of Principles concerning Varicose Veins of the Lower Limb, No. 121 of 2011
REASONS FOR DECISION
Deputy President I R Molloy
6 November 2014
INTRODUCTION

Mr Tovey served in the Royal Australian Navy from 25 July 1964 to 24 July 1984.
On 4 June 2013 the respondent (“the Commission”) rejected his claim under the Veterans’ Entitlements Act1986 (Cth) (“the Act”) in respect of chronic bronchitis and emphysema for the reason that the condition was not defence-caused.
On 22 July 2013 the Commission rejected Mr Tovey’s claims in respect of varicose veins of the left and right legs and hypertension. These claims were also rejected as not being defence-caused.
On 25 February 2014 the Veterans’ Review Board affirmed the Commission’s decisions.
Mr Tovey applies for review of the Commission’s decisions.
ISSUES
There is no dispute that Mr Tovey was a member of the Defence. The issues are whether the conditions for which Mr Tovey claims are defence-caused injuries or defence-caused diseases. Only service from 7 December 1972 is eligible service within the meaning of the Act.
LEGISLATION
Section 70(5) of the Act, so far as relevant, provides that for the purposes of the Act, an injury suffered by a member shall be taken to be a defence-caused injury, or a disease contracted by a member shall be taken to be a defence-caused disease, if:
(a)the … injury or disease, as the case may be, arose out of, or was attributable to, any defence service … of the member…
Pursuant to s 120(4) of the Act such matters are to be decided to the Commission’s (and now the Tribunal’s) reasonable satisfaction.
Section 120B(3) provides, relevantly:
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, [or] a disease contracted by a person … was … defence-caused only if:
(a) the material before the Commission raises a connection between the injury, [or] … and some particular service rendered by the person; and
(b) there is in force
(i) a Statement…

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: [2014] AATA 837
Decision Date: 6 November 2014

CaseChat Overview and Summary

Phillip Tovey brought a case against the Repatriation Commission, challenging decisions regarding the status of various medical conditions he claimed were related to his service. The dispute was heard in the Federal Court of Australia. The primary issues before the court involved whether Mr Tovey’s varicose veins, chronic obstructive pulmonary disease, hypertension, chronic bronchitis, and emphysema were caused by or related to his service in the Australian Defence Force.

The court was required to determine whether Mr Tovey’s medical conditions were indeed service-related. This involved examining the evidence provided by Mr Tovey and the Commission’s assessment of the evidence. The court had to consider whether the medical conditions arose out of or were aggravated by his service, as required by the relevant legislation. The court also needed to assess whether any non-ambulatory standing during the five years before the clinical diagnosis of varicose veins could be related to his service.

In reaching its decision, the court examined the evidence thoroughly, including the medical reports and the timeline of Mr Tovey's service and subsequent health issues. The court found that the medical conditions in question were not related to his service. The court affirmed the Commission's decisions, holding that the evidence did not support a finding that the conditions were defence-caused injuries or diseases. Consequently, the Commission's decisions were upheld, and Mr Tovey's appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Any non-ambulatory standing during the five years before the clinical diagnosis of varicose veins cannot therefore be related to Mr Tovey’s eligible service.DECISION Each decision of the Commission is affirmed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/2371
Re	Phillip Tovey
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President I R Molloy
Date	6 November 2014
Place	Brisbane