VETERANS' AFFAIRS - appeal from decision of the Administrative Appeals Tribunal that the respondent was entitled to payment of a pension for a "defence-caused disease" - defence-caused aggravation of a pre-existing disease deemed to be a "defence-caused" disease - distinction between defence-caused temporary worsening of symptoms and defence-caused aggravation of underlying disease - "aggravation" - whether aggravation of underlying disease must be permanent in order to give rise to entitlement to pension.
Re Heaps and Repatriation Commission (AAT, unreported, 29 July 1987). Banovich v Repatriation Commission (1986) 69 ALR 395. Asioty v Canberra Abattoir Pty Ltd(1989) 167 CLR 533.
THE REPATRIATION COMMISSION v DARRYN PAUL YATES
No NG 527 of 1994.
Lindgren J Sydney 5 May 1995
IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No NG 527 of 1994 GENERAL DIVISION )
On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by Senior Member M D Allen, Dr J D Campbell and Rear Admiral A Horton AO.
BETWEEN:
THE REPATRIATION COMMISSION Applicant
AND:
DARRYN PAUL YATES Respondent
CORAM:Lindgren J
PLACE:Sydney
DATE:5 May 1995
MINUTE OF ORDERS
THE COURT:
Orders that the appeal be allowed.
Orders that the decision of the Administrative Appeals Tribunal given 22 July 1994 in proceedings No P93/365 be set aside.
Orders that the matter be remitted to the Administrative Appeals Tribunal to be heard and decided in conformity with these Reasons for Judgment.
Stand the matter over to a date and time to be fixed for the making of submissions and orders in relation 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 ) NEW SOUTH WALES DISTRICT REGISTRY ) No NG 527 of 1994 GENERAL DIVISION )
On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by Senior Member M D Allen, Dr J D Campbell and Rear Admiral A Horton AO.
BETWEEN:
THE REPATRIATION COMMISSION Applicant
AND:
DARRYN PAUL YATES Respondent
CORAM:Lindgren J
PLACE:Sydney
DATE:5 May 1995
REASONS FOR JUDGMENT
NATURE OF PROCEEDINGS:
The applicant ("the Commission") appeals under s 44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") from a decision of the Administrative Appeals Tribunal ("the AAT") in its Veterans' Appeals Division given on 22 July 1994 in favour of the respondent ("Yates").
Yates is a former "member of the Forces" as that expression is defined in s 68 of the Veterans' Entitlements Act 1986 ("the Act"), by reason of his having served in the Australian Regular Army from 11 January 1988 until his discharge on medical grounds on 8 February 1993 - a period of a little over five years.
On 6 October 1992, while he was still a member of the Forces, Yates lodged a claim with the Commission to have a "disability" of spondyloarthritis which he had, recognised as "defence-caused". Section…
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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AGLC
Repatriation Commission v Yates [1995] FCA 285
Case
[1995] FCA 285
Decision Date
CaseChat Overview and Summary
The case of Repatriation Commission v Yates involves a claim by a former member of the Australian Regular Army, Darren Paul Yates, for a pension on the basis of a "defence-caused disease." Yates served from January 1988 until his discharge on medical grounds in February 1993. He lodged a claim for pension on the basis of a "disability" of spondyloarthritis, which he asserted was defence-caused. The Commission initially refused the claim, a decision affirmed by the Veterans' Review Board. Yates then applied to the Administrative Appeals Tribunal (AAT) for a review of that decision. The AAT found in Yates' favour, holding that he was entitled to pension for the defence-caused disease of aggravation of spondyloarthritis. The Commission appealed to the Federal Court.
The legal issues the court had to decide included whether a disease that manifested itself during defence service but did not arise out of defence service could be aggravated by defence service within the terms of s 70(5)(d) of the Veterans' Entitlements Act 1986. The court had to determine whether a temporary worsening of symptoms constituted a defence-caused aggravation of the underlying disease, and if a temporary aggravation of a disease ceased, whether the Commission could reassess the rate at which pension was being paid.
The court held that the AAT had erred in equating a temporary worsening of symptoms with a temporary aggravation of the underlying disease. The court emphasised that the Act distinguishes between a temporary worsening of symptoms and an aggravation of a disease. It noted that an aggravation of an underlying disease need not be literally "permanent" but must be distinguished from a temporary worsening of symptoms. The court concluded that the AAT had not properly addressed whether there had been an aggravation of Yates' spondyloarthritis as distinct from a temporary worsening of symptoms. The court found the AAT's reasoning on this point to be flawed, particularly its reliance on the example of malaria, which the court found to be conceptually distinct from the issue of aggravation of a disease. The court held that the appeal should be allowed, the decision of the AAT should be set aside, and the matter should be remitted to the AAT to be heard and decided again in conformity with the court's reasons.