Rose and Repatriation Commission - [2003] AATA 833

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 833
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N2002/974

VETERANS' APPEALS DIVISION )

Re LEONARD ANTHONY WILLEN ROSE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen
Dr M E C Thorpe, Member
Date27 August 2003
PlaceSydney

Decision
The decision under review is affirmed.

........(Sgd) M D Allen..........
Presiding Member

CATCHWORDS
VETERANS’ ENTITLEMENTS - Meniere's disease - whether inability to obtain appropriate clinical management due to misdiagnosis - requirement of symptoms of disease to conform to definition of said disease in relevant Statement of Principle (SoP).
Veterans’ Entitlements Act 1986 - ss 6C, 120(4), s120(6), s120B
Instrument no. 78 of 2001 – Meniere’s disease
Repatriation Commission v Smith (1987)15 FCR 327
Repatriation Commission v Gorton 110 FCR 321
Benjamin v Repatriation Commission (2001) 70 ALD 622
Brew v Repatriation Commission (1999) 94 FCR 80
Repatriation Commission v Wedekind [2000] FCA 649
Johnston v Commonwealth (1982) 150 CLR 331
Lees v Repatriation Commission (2002) 36 AAR 484
REASONS FOR DECISION

27 August 2003

  Senior Member M D Allen

Dr M E C Thorpe, Member

1.      By application made 10 July 2002, the Applicant sought review of a decision by the Respondent as affirmed by the Veterans’ Review Board that his diagnosed condition of Meniere's disease was not related to his Defence Service.
2. We note that the Applicant also had operational service as that term is defined in section 6C of the Veterans' Entitlements Act1986 (“the VEA”), however no submissions were made that operational service per se caused or contributed to the Applicant's Meniere's disease.
3.      The application for review came on for hearing before this Tribunal at Sydney on 11 July 2003. At that hearing, the following documents were taken in as exhibits and marked as follows, namely:

Exhibit
Document Date

T1-T22

The documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act
1975

A1
Applicant's Statement of Facts and Contentions

A2
Statement by the Applicant
8/01/2003

A3
Report of Dr J Scoppa
20/06/2003

R1
Respondent's Statement of Facts and Contentions

R2
Applicant's Service Medical Records

R3
Report of Dr Howison
17/01/2003

R4
Report of Dr Howison
13/06/2003

4. Subsection 120(4) of the VEA provides that where an Applicant seeks to attribute the cause of a disease to his Defence Service, the Tribunal is to determine the matter to its "reasonable satisfaction". In Repatriation Commission v Smith (1987) 15 FCR 327, the Full Court of the Federal Court equated the term reasonable satisfaction to the civil standard of proof, namely that of proof on the balance of probabilities. Subsection 120(6) of the VEA provides that neither party to this review bears any onus of proof.
5. As the Applicant's claim was lodged post 1 June 1994, section 120B of the VEA provides that the Tribunal can only be reasonably satisfied that any disease suffered by the Applicant was connected to his Defence Service, if the material before the…

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 Rose and Repatriation Commission

Details

AGLC: Rose and Repatriation Commission [2003] AATA 833
Case: [2003] AATA 833
Decision Date: 27 August 2003

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Repatriation Commission v Rose dealt with the eligibility of a veteran for compensation regarding Meniere's disease, a condition affecting the inner ear. The central dispute was whether the veteran's condition qualified under the relevant Statement of Principle (SoP) for Meniere's disease, specifically Instrument no. 78 of 2001. The Repatriation Commission had denied the claim, arguing that the veteran's symptoms did not conform to the definition outlined in the SoP. The veteran, represented by Mr. Rose, contended that the misdiagnosis and subsequent inability to obtain appropriate clinical management should be taken into account in determining eligibility.

The primary legal issues revolved around the interpretation of the Veterans' Entitlements Act 1986, particularly sections 6C, 120(4), 120(6), and 120B, and how these provisions applied to the veteran's claim for Meniere's disease. Key considerations included whether the veteran's symptoms met the criteria set forth in the SoP and whether the inability to obtain appropriate clinical management due to misdiagnosis should affect the assessment of the claim. The court had to weigh the statutory requirements against the veteran's circumstances and determine if there was any room for deviation in interpreting the SoP to accommodate the veteran's situation.

The court examined previous cases such as Repatriation Commission v Smith, Repatriation Commission v Gorton, Benjamin v Repatriation Commission, Brew v Repatriation Commission, Repatriation Commission v Wedekind, Johnston v Commonwealth, and Lees v Repatriation Commission to understand the application of the statutory provisions. The Federal Court found that the statutory language and legislative intent required strict adherence to the SoP's criteria. The inability to obtain appropriate clinical management due to misdiagnosis did not constitute a sufficient deviation from the statutory requirements to warrant compensation under the SoP. Consequently, the court affirmed the Repatriation Commission's decision, holding that the veteran's symptoms did not conform to the definition of Meniere's disease in the SoP.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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VETERANS' APPEALS DIVISION		)
Re		LEONARD ANTHONY WILLEN ROSE

Exhibit	Document	Date
T1-T22	The documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1	Applicant's Statement of Facts and Contentions
A2	Statement by the Applicant	8/01/2003
A3	Report of Dr J Scoppa	20/06/2003
R1	Respondent's Statement of Facts and Contentions
R2	Applicant's Service Medical Records
R3	Report of Dr Howison	17/01/2003
R4	Report of Dr Howison	13/06/2003