Riley and Repatriation Commission - [2007] AATA 1689

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1689
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2006/838

GENERAL ADMINISTRATIVE DIVISION )

Re DANIEL RILEY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N. Isenberg, Senior Member
Date24 August 2007
PlaceSydney

Decision The decision under review is affirmed.

……[sgd]……………
Ms N Isenberg
Senior Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – claim that chondromalacia patellae of both knees was war-caused – consideration of Statement of Principles – whether decision not to seek medical treatment was because of the culture of a military unit – decision under review is affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) – sections 6, 9, 13, 120, 196A, 196B
Statement of Principles – Instrument Number 33 of 2001 concerning chondromalacia patellae
CASE LAW
Repatriation Commission v Deledio (1998) 83 FCR 82
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Brew v Repatriation Commission (1999) 94 FCR 80
REASONS FOR DECISION

24 August 2007
Ms N Isenberg, Senior Member

1.      The Applicant (“Mr Riley”) is seeking review of a decision by the Respondent, dated 20 May 2003, that rejected his claim to have the condition of chondromalacia patellae of both knees attributed to his military service in the Australian Army. This decision was affirmed by the Veterans’ Review Board (“the VRB”) on 17 March 2006.
Issue before the Tribunal
2.      The issue to be considered by the Tribunal is whether Mr Riley’s chondromalacia patellae of both knees is causally related to his service.
Background
3.      Mr Riley served in the Australian Army from 10 February 1965 until 9 February 1968.
4. His operational service, as defined by section 6C of the Veterans’ Entitlements Act 1986 (“the VEA”), was in Vietnam from 10 June 1966 until 9 May 1967.
legislation
5. Section 9 of the VEA provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service…”

6. Section 13(1) of the VEA provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
7. As Mr Riley had operational service, the determination of whether his claimed conditions are war-caused is to be made by applying sub-sections 120(1) and 120(3) of the VEA. Those sub-sections require me to find that Mr Riley’s condition was war‑caused, unless I am satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. I must be so…

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 Riley and Repatriation Commission

Details

AGLC: Riley and Repatriation Commission [2007] AATA 1689
Case: [2007] AATA 1689
Decision Date: 24 August 2007

CaseChat Overview and Summary

In Riley and Repatriation Commission, the Full Court of the Federal Court was asked to review a decision made by the Repatriation Commission concerning the veteran's claim for compensation for chondromalacia patellae of both knees, which he asserted was caused by his operational service. The court had to consider whether the decision to not seek medical treatment was due to the culture of the military unit, which might have contributed to the onset or exacerbation of the condition.

The central legal issue was whether the decision not to seek medical treatment was influenced by the military culture, which could be seen as an operational condition. The court needed to determine if the condition was caused by the service and if the decision not to seek treatment could be attributed to the military culture, thereby making it a war-caused condition.

The court affirmed the decision made by the Repatriation Commission, holding that the claim was not substantiated. The court found that there was no evidence to support the assertion that the decision not to seek medical treatment was due to the culture of the military unit. Additionally, the court concluded that the condition did not meet the criteria set out in the relevant Statement of Principles concerning knee conditions caused by service. Therefore, the court dismissed the appeal and affirmed the original decision.

Orders

Orders of the court

The decision under review is affirmed.

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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