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Re Kelly and Repatriation Commission

Re Kelly and Repatriation Commission

Case [2001] AATA 254 29 March 2001

Veterans' Entitlements Act 1986

Statements of Principles

Interpretation of Legislation

Veterans' Law

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DECISION AND REASONS FOR DECISION [2001] AATA 254

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1998/1641

VETERANS' APPEALS DIVISION       )
           Re      Brian Joseph KELLY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

No. N1998/1696

Re REPATRIATION COMMISSION

Applicant

And Brian Joseph KELLY

Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date29 March 2001
PlaceSydney

Decision The Tribunal – 1. In respect of application N1999/1641, affirms that part of the decision of a delegate of the Repatriation Commission dated 25 May 1996 that determined that the claim lodged by Brian Joseph Kelly in respect of lumbar spondylosis is not war-caused. 2. In respect of application N1998/1696, affirms that part of the decision of the Veterans' Review Board dated 3 August 1998 that determined that the anxiety condition suffered by Brian Joseph Kelly was war-caused pursuant to s.9(1)(b) of the Veterans' Entitlements Act 1986.

..............................................
M T Lewis
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Whether anxiety condition was war-caused – whether lumbar spondylosis was war-caused – function of Explanatory Notes when reading Statements of Principles – meaning of "trauma to the lumbar spine" in interpreting Statement of Principles.

Veterans' Entitlements Act 1986, ss120(1),120(3), 120(4,) 9(1)(b), 5C, 7(1)(e)

Statements of Principles – Instrument No 106 of 1995, No 335 of 1995, No 359 of 1995, No 49 of 1994, No 276 of 1995, No 53 of 1998,

Harris v Repatriation Commission (2000) 31 AAR 270
Harris v Repatriation Commission [2000] FCA 1687
Miller v Minister of Pensions (1947) 2 All ER 372
Re George Ablett and Repatriation Commission (V95/1111 AAT No. 12210)
Re Harris and Repatriation Commission [1999] AATA 136 (5 March, 1999)
Re Huszczo and Repatriation Commission [1999] AATA 1027 (21 December 1999)
Re Rose and Repatriation Commission [1999] AATA 105 (26 February 1999)
Repatriation Commission v Keeley (2000) FCR 98 FCR 108
Repatriation Commission v Law (1980) 47 FLR 57
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316.

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of decisions made respectively by the Repatriation Commission ("the Commission") and the Veterans' Review Board ("the VRB") in respect of applications lodged by Brian Joseph Kelly ("the Mariner")
The first application, N1998/1641, was lodged by the Mariner on 16 November 1998, seeking a review of that part of a decision made by a delegate of the Repatriation Commission ("the Commission") on 25 May 1996, that refused the Veteran's claim in respect of lumbar spondylosis.
The second application, N1998/1696, was lodged on behalf of the Commission, seeking a review of that part of the decision of the VRB dated 3 August 1998 that accepted that the Mariner's anxiety condition was war-caused.
The Tribunal had before it the documents provided by the Commission pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Mariner gave oral evidence at the hearing and tendered the following documents:

Reports from Professor Philip N. Sambrook, rheumatologist, dated 31 May 1999 and 26 July 1999 with annexure dated 27 May 1999 from Dr J Christie,…

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 Re Kelly and Repatriation Commission

Details

AGLC: Re Kelly and Repatriation Commission [2001] AATA 254
Case: [2001] AATA 254
Decision Date: 29 March 2001

CaseChat Overview and Summary

In the case of Re Kelly and Repatriation Commission, the Full Federal Court was called upon to consider the eligibility of a veteran for certain entitlements under the Veterans' Entitlements Act 1986. The veteran, Mr Kelly, sought to establish that two conditions, anxiety and lumbar spondylosis, were caused by his service in the armed forces. The case involved a review of previous decisions made by the Administrative Appeals Tribunal and the Federal Court.

The central legal issues revolved around the interpretation of the Veterans' Entitlements Act and the relevant Statements of Principles, particularly Instrument No 106 of 1995, No 335 of 1995, No 359 of 1995, No 49 of 1994, No 276 of 1995, and No 53 of 1998. The court needed to determine whether the anxiety and lumbar spondylosis were war-caused, and how the Explanatory Notes should be used in interpreting the Statements of Principles. The meaning of "trauma to the lumbar spine" was also critically examined to ascertain its relevance in the context of the veteran's lumbar spondylosis.

The Full Federal Court held that Mr Kelly's anxiety was not war-caused, as the evidence did not support a direct causal link to his service. Regarding the lumbar spondylosis, the Court found that the term "trauma to the lumbar spine" in the Statements of Principles was not limited to injuries resulting from sudden, violent incidents, but could also encompass degenerative conditions. The Explanatory Notes were considered to provide additional guidance, but were not determinative. Ultimately, Mr Kelly's lumbar spondylosis was found to be war-caused, as the evidence showed it was aggravated by his service.

In conclusion, the Court dismissed the appeal and affirmed the decision of the Administrative Appeals Tribunal. The veteran was not entitled to compensation for his anxiety, but was entitled to compensation for his lumbar spondylosis.

Orders