Repatriation Commission v Wedekind

Case [2000] FCA 649

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Wedekind [2000] FCA 649

VETERANS AFFAIRS – War-caused injury or disease – appeal from decision of Administrative Appeals Tribunal – whether veteran’s condition of pterygium was war-caused – Statement of Principles requires showing of service-related inability to obtain appropriate clinical management – whether evidence to support causal link between failure to diagnose condition and eligible war service – whether failure to make findings on material questions of fact

Administrative Appeals Tribunal Act 1975, s 44(1)
Veterans’ Entitlements Act 1986, s 9, s 13, s 119, s 120, s 196B(3)

Repatriation Commission v Smith (1987) 15 FCR 327 referred
Repatriation Commission v Deledio (1998) 83 FCR 82 applied
Deledio v Repatriation Commission (1997) 25 AAR 396 referred
Brew v Repatriation Commission [1999] FCA 1246 referred
Commonwealth v Johnston (1980) 31 ALR 445 discussed
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 referred
Johnston v Commonwealth (1982) 150 CLR 331 discussed
Australian Telecommunications Commission v Barker (1990) 12 AAR 490 referred
Dornan v Riordan (1990) 24 FCR 564 referred
Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 referred
Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 referred

REPATRIATION COMMISSION v STANLEY WILLIAM WEDEKIND

VG 208 of 1998

KENNY J
MELBOURNE
17 MAY 2000


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 208 OF 1998

BETWEEN:

REPATRIATION COMMISSION
Applicant

AND:

STANLEY WILLIAM WEDEKIND
Respondent

JUDGE:

KENNY J

DATE OF ORDER:

17 MAY 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.That part of the decision of the Administrative Appeals Tribunal made on 23 April 1998 that set aside the decision made by the Commission and substituted a decision that: 

(a)the condition of pterygium suffered by the respondent was war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986; and

(b)the Commonwealth was liable to pay a pension to the respondent for his incapacity from that condition from 16 April 1996

be set aside.

3.The decision of the applicant made on 28 August 1996 be affirmed.

4.        There be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 208 OF 1998

BETWEEN:

REPATRIATION COMMISSION
Applicant

AND:

STANLEY WILLIAM WEDEKIND
Respondent

JUDGE:

KENNY J

DATE:

17 MAY 2000

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. The applicant, the Repatriation Commission (“the Commission”), appeals, pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), from part of the decision of the Administrative Appeals Tribunal (“the AAT”) given on 23 April 1998. In particular, the Commission appeals from that part of the AAT’s decision that set aside a decision made by the Commission and substituted a decision that: (a) the condition of pterygium suffered by the respondent, Mr Stanley Wedekind, was war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986

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Details
AGLC
Repatriation Commission v Wedekind [2000] FCA 649
Case
[2000] FCA 649
Decision Date

CaseChat Overview and Summary

The case of Repatriation Commission v Wedekind involves an appeal by the Repatriation Commission against a decision of the Administrative Appeals Tribunal (AAT) that the veteran, Mr Stanley Wedekind, was entitled to a pension for his war-caused pterygium. The AAT had set aside the original decision of the Commission and substituted its own, holding that Mr Wedekind’s pterygium was war-caused and that the Commonwealth was liable to pay a pension from 16 April 1996. The Commission appeals from this part of the AAT’s decision, arguing that the Tribunal failed to apply the standard of proof concerning pterygium and erred in its findings regarding the inability to obtain appropriate clinical management during Mr Wedekind’s war service.

The central legal issues before the court were whether the AAT correctly applied the standard of proof concerning pterygium and whether it made the necessary findings to support its conclusion that Mr Wedekind’s pterygium was war-caused. Specifically, the court needed to determine if the AAT had identified the approximate date Mr Wedekind contracted his pterygium, the appropriate form of clinical management, whether he was unable to obtain that management, whether that inability related to his war service, and whether the pterygium was contracted during his service and aggravated by it. The court also needed to consider whether the AAT’s findings were supported by the evidence.

The court found that the AAT had not correctly applied the standard of proof concerning pterygium, particularly in relation to the timing of the contraction of the pterygium and the appropriate form of clinical management. The AAT also failed to make the necessary findings to support its conclusion that the pterygium was war-caused. The court noted that the AAT’s findings were based on Dr Gillies’ evidence, but it did not adequately address the specific requirements of the legislation. The court concluded that the AAT’s decision was flawed and that the Commission’s original decision should be affirmed. The appeal was allowed, and the AAT’s decision was set aside, with the original decision of the Commission being reinstated. There was no order as to costs.

Orders

Orders of the court

1. The appeal be allowed.

2. That part of the decision of the Administrative Appeals Tribunal made on 23 April 1998 that set aside the decision made by the Commission and substituted a decision that:

(a) the condition of pterygium suffered by the respondent was war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986; and

(b) the Commonwealth was liable to pay a pension to the respondent for his incapacity from that condition from 16 April 1996

be set aside.

3. The decision of the applicant made on 28 August 1996 be affirmed.

4. There be no order as to costs.

Background

Background to the litigation

The applicant, the Repatriation Commission (“the Commission”), appeals, pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), from part of the decision of the Administrative Appeals Tribunal (“the AAT”) given on 23 April 1998. In particular, the Commission appeals from that part of the AAT’s decision that set aside a decision made by the Commission and substituted a decision that: (a) the condition of pterygium suffered by the respondent, Mr Stanley Wedekind, was war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (“the VE Act”); and (b) the Commonwealth was liable to pay a pension to Mr Wedekind for his incapacity from that condition from 16 April 1996. factual background The facts, as found by the AAT, are as follows. Mr Wedekind is a veteran who, for the purposes of the VE Act, rendered eligible (but not operational) war service. During his war service in Northern Australia, from January 1942 to March 1944, Mr Wedekind’s eyes became inflamed and “would puff-up and practically close up”. Mr Wedekind was hospitalised eight times with chronic eye inflammation. On each occasion, he remained an in-patient for 10 to 14 days and was treated with antibiotics. A medical report in February 1944, shortly before Mr Wedekind was discharged, recorded “moderate hyperemia of lids and conjunctivie particularly right” but noted that both eyes were clear and that no further treatment was required. Almost immediately after his discharge, however, Mr Wedekind again had problems with his eyes. In 1950, he was told that he had “fatty pterygium”. In about 1991, he was operated on for this condition. The operation involved the removal of fibrous tissue which had grown onto the cornea of the left eye. At the hearing before the AAT, Dr W E Gillies, opthalmologist, gave evidence that pterygium is a vascular membrane, which grows onto the front of the eye on the clear cornea. It is “like a local malignant condition” which grows or invades across the front of the eye until it threatens vision. Dr Gillies expressed the opinion, in a report dated 8 September 1997, that Mr Wedekind’s pterygium arose in association with his repeated bouts of ocular inflammation during his war service. Dr Gillies gave evidence that Mr Wedekind’s pingueculum “was most likely a precursor of the pterygium” and that it was “very likely that the pterygium started to appear, started to occur at the time of his period of service”. Dr Gillies added, in evidence, that “it would be difficult under the conditions of hospitalisation to be sure that there was not a pterygium present and it was only a pingueculum”. He stated that the diagnosis of fatty pterygium in 1950 made it even more likely that pterygium was present while Mr Wedekind was on service. Dr Gillies attributed the failure to diagnose the pingueculum and the pterygium during Mr Wedekind’s war service to the limited diagnostic technology then available. the appeal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KENNY J (dissent)
In summary, before the AAT could be reasonably satisfied that Mr Wedekind’s pterygium was war-caused, it had to be satisfied that: (a) Mr Wedekind was unable to obtain appropriate clinical management for his pterygium during his war service, after having contracted the pterygium; (b) subject to (c), his inability to obtain appropriate clinical management was related to his war service; and (c) the pterygium was contracted while he was rendering war service and was contributed to in a material degree by, or was aggravated by, his war service. In the course of determining whether it was satisfied of these matters, the Tribunal needed to identify the approximate date upon which Mr Wedekind contracted his pterygium; the appropriate form of clinical management; whether Mr Wedekind was unable to obtain that form of clinical management; whether that inability related to his service; whether the pterygium was contracted during his service; and whether it was contributed to in a material degree by, or was aggravated by, Mr Wedekind’s particular service.the aat’s decision The Tribunal had before it the documents lodged pursuant to s 37 of the AAT Act, Dr Gillies’ report and viva voce evidence, and the testimony of Mr Wedekind. Save for one matter, it correctly referred to the relevant law. The Tribunal’s findings are set out at pars 36 to 40 of its reasons. The Tribunal found, so it seems, that Mr Wedekind’s pterygium was contracted while he was rendering eligible war service. This finding is implicit in pars 37 to 39 of its reasons. I accept, as counsel for the Commission submitted, that the reference to “paragraph 9(1)(e)(ii)” in par 39 of the reasons is to be understood as a reference to s 9(1)(e)(i). I reject the respondent’s submission to the contrary. At best, so far as Mr Wedekind is concerned, the effect of Dr Gillies’ evidence was that the pterygium was contracted during Mr Wedekind’s service, a fact that would attract s 9(1)(e)(i), providing the pterygium “did not arise out of that service”. There was no evidence before the Tribunal that the pterygium was contracted “before the commencement of the period, or last period, of eligible war service rendered by” Mr Wedekind, as s 9(1)(e)(ii) would require. Nothing ultimately turns on this mistaken reference, however. In stating, in par 39, that it was appropriately satisfied that the relationship between the pterygium and Mr Wedekind’s service was “a relationship set out in paragraph 9(1)(e)(ii)”, I accept, as the Commission submitted, that the Tribunal had in mind a finding that the pterygium was aggravated by his service at a time after Mr Wedekind had contracted the pterygium. The Tribunal made no finding, however, about how the aggravation was sustained. Finally, the Tribunal found that the treatment that Mr Wedekind received for inflammation of the eyes and conjunctivitis (eye drops at the RAP and antibiotics when hospitalised) could not be said to be “appropriate clinical management” for pterygium. The Tribunal made no findings, however, as to what would have been appropriate clinical management for pterygium, whether Mr Wedekind was unable to obtain that management, and whether such inability was related to his war service.grounds of appealFailure to apply the SoP concerning pterygium: Grounds (a) and (b)

Ratio Decidendi

Legal Principle Established

Established by:

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