Rowe and Repatriation Commission - [2009] AATA 308

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 308
ADMINISTRATIVE APPEALS TRIBUNAL ) No N 2006/0478
) No N 2006/0492

GENERAL ADMINISTRATIVE DIVISION )

Re Terrence Rowe

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal Dr I Alexander, Member
Date4 May 2009
PlaceSydney

Decision
The Administrative Appeals Tribunal decides that:

(a) Mr Rowe’s undifferentiated connective disease was not caused by his war-service; and

(b) The decisions under review are affirmed.

.....................[sgd].........................
Dr I Alexander
Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – Disability pension – Claim that undifferentiated connective tissue disorder was war caused – Whether veteran suffers from a particular kind of disease – Whether facts give rise to a reasonable hypothesis – Whether the hypothesis is disproved beyond reasonable doubt – The decisions under review are affirmed
…
Veterans’ Entitlements Act 1986 – Sections 5, 120, 120A
…
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Cooke (1998) 90 FCR 307
…
REASONS FOR DECISION

4 May 2009
Dr I Alexander, Member

background

1.      Mr Rowe, the applicant, served in the Royal Australian Navy between 9 April 1966 and 8 April 1986.
2.      For the purposes of the Veterans’ Entitlements Act 1986 (the Act) he had operational service in Vietnam on HMAS Sydney for approximately 18 weeks between February 1971 and December 1971.
3.      During that time Mr Rowe served as a Dental Assistant and claims that as a result of mixing amalgam, an essential part of his duties, he was exposed to mercury vapour and that this exposure caused him to develop several diseases.
4.      On 6 November 2002 Mr Rowe was diagnosed as suffering from “polymyositis” and was started on treatment with high dose corticosteroid in the form of “prednisone”.
5.      On around 19 December 2002 Mr Rowe was started on treatment for hypertension that was said to have been caused by the corticosteroid therapy for his polymyositis.
6.      In August 2003 Mr Rowe was noted to be suffering from osteoporosis which may have been caused by his treatment for polymyositis
7.      In November 2003 Mr Rowe submitted a claim for medical treatment and pension for incapacity in respect of polymyositis and osteoporosis on the ground that these conditions were war caused (N2006/0492).
8.      Subsequently in December 2004 he submitted an additional claim in respect of several conditions including hypertension, anxiety disorder and hepatitis A (N2006/0478).
9.      The Repatriation Commission, the respondent, rejected both of Mr Rowe’s claims.
10.     The decisions of the Commission were affirmed, as varied by the Veteran’s Review Board (VRB) and in these proceedings Mr Rowe is seeking review of the VRB decisions.
issues
11.     Mr Rowe claims that he suffers from various diseases that are war caused.
12.     The essence of his claim is that he suffers from a disease which was war caused and that this disease and its treatment have caused other diseases namely hypertension, osteoporosis and an anxiety disorder.

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 Rowe and Repatriation Commission

Details

AGLC: Rowe and Repatriation Commission [2009] AATA 308
Case: [2009] AATA 308
Decision Date: 4 May 2009

CaseChat Overview and Summary

The case of Rowe versus the Repatriation Commission involved a claim by the veteran, Mr Rowe, for a disability pension on the basis that his undifferentiated connective tissue disorder was caused by his war service. The dispute was heard and determined by the Administrative Appeals Tribunal, which subsequently affirmed the decisions under review.

The central legal issues for the court to decide were whether Mr Rowe's undifferentiated connective tissue disorder was war-caused and whether the facts presented constituted a reasonable hypothesis that could not be disproven beyond reasonable doubt. These issues were pivotal in determining Mr Rowe’s eligibility for a disability pension under the Veterans’ Entitlements Act 1986.

In reaching its decision, the tribunal examined relevant case law, including Benjamin v Repatriation Commission, Bushell v Repatriation Commission, Byrnes v Repatriation Commission, and Repatriation Commission v Cooke. The tribunal concluded that the evidence did not support a reasonable hypothesis that Mr Rowe’s condition was caused by his war service. Consequently, the tribunal found that the undifferentiated connective tissue disease was not war-caused and affirmed the decisions of the Repatriation Commission.

The tribunal’s final orders were that Mr Rowe’s undifferentiated connective tissue disease was not caused by his war service, and the decisions under review were affirmed. This outcome meant that Mr Rowe’s claim for a disability pension was denied.

Orders

Orders of the court

The Administrative Appeals Tribunal decides that:

(a) Mr Rowe’s undifferentiated connective disease was not caused by his war-service; and

(b) The decisions under review are 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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