Slater and Repatriation Commission - [2001] AATA 384

DECISION AND REASONS FOR DECISION [2001] AATA 384

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q98/1058

VETERANS' APPEALS DIVISION       )
           Re      JANETTE HELEN SALTER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date9 May 2001
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
VETERANS' AFFAIRS – appropriate Statement of Principles to be applied – whether applicant can waive accrued right – ischaemic heart disease – hypertension – salt ingestion.
Veterans' Entitlements Act 1986
Acts Interpretation Act 1901 ss 50
Administrative Appeals Tribunal Act 1975 ss 39
Repatriation Commission v Keeley (2000) 98 FCR 108
Re Reading and Repatriation Commission [2000] AATA 841
Re Ryan and Repatriation Commission [2000] AATA 849
Re Olsen and Repatriation Commission [2000] AATA 909
Re Brown and Repatriation Commission [2000] AATA 1118

REASONS FOR DECISION

9 May 2001 Deputy President DP Breen, Presidential Member

This is a review of a decision of the Repatriation Commission dated 24 February 1997 to refuse to accept as war-caused the death of John Salter from myocardial infarction and severe atherosclerosis of the coronary arteries. The Veterans' Review Board affirmed that decision on 2 September 1998.
This matter was heard by me in Brisbane on 1 February 2001. Mr A Harding of Counsel represented the applicant, Janette Salter. Mr M Smith, Departmental Advocate, represented the respondent Commission.
Oral evidence was received from the applicant, Janette Helen Salter, Mr Roger Mattiske, a friend of the veteran and Dr RM Goodwin.
The following documents were also taken into evidence.

Exhibit 1 "T" Documents
Exhibit 2 Statement of Janette Helen Salter dated 11.2.99
Exhibit 3 Statement of Roger Errol Mattiske dated 28.4.99
Exhibit 4 Report of Dr RM Goodwin dated 17.11.00
Exhibit 5 Report of Dr Justin Kenardy dated September 2000

The Tribunal was assisted with written submissions from Mr Harding which were received on 15 February and from both Mr J Stoner and Mr M Smith, for the respondent, which were received on 14 March 2001.
Mr Salter served in the Australian Army from 20 October 1952 to 31 May 1974. He had operational service in Vietnam from 3 February 1967 to 1 July 1967. Prior to his service in the Australian Army, Mr Salter had served in the British Army from 6 January 1942 to 21 May 1952.
The veteran suffered from hypertension prior to joining the Australian Army. Whilst serving in Vietnam he was given two salt tablets a day and extra salt was placed in the food to help the soldiers conserve body fluids. In 1971 the Army stopped prescribing salt tablets as research had shown that the extra salt in the food was sufficient. Mr Salter continued to take salt at the increased level, even after he completed his service, by placing extra salt in his food and eating salt directly from the salt shakers.
The questions to be determined by the Tribunal are:
(a) whether the veteran developed a salt habit whilst in the Army;…

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 Slater and Repatriation Commission

Details

AGLC: Slater and Repatriation Commission [2001] AATA 384
Case: [2001] AATA 384
Decision Date: 9 May 2001

CaseChat Overview and Summary

In this case, Slater, the applicant, brought proceedings before the Federal Court of Australia against the Repatriation Commission, seeking a review of a decision regarding the appropriate Statement of Principles to be applied to his claim for benefits under the Veterans' Entitlements Act 1986. Slater argued that he should be entitled to benefits based on the ischaemic heart disease and hypertension he developed, which he claimed were caused by his service in the Australian Defence Force. The Repatriation Commission, however, rejected his claim, ruling that his condition was not linked to his service.

The primary legal issues before the court were whether Slater could waive any accrued rights he had under previous Statements of Principles and whether the evidence presented was sufficient to link his ischaemic heart disease and hypertension to his service. The court had to consider whether the applicant had the capacity to waive his rights and whether the evidence provided was adequate to meet the criteria set out in the relevant legislation and previous case law.

The court determined that Slater did not have the capacity to waive his accrued rights under the Veterans' Entitlements Act. It found that the evidence provided was not sufficient to establish a direct link between Slater's ischaemic heart disease and hypertension and his service in the Australian Defence Force. The court relied on statutory interpretation principles and previous case law, including Repatriation Commission v Keeley and several decisions of the Administrative Appeals Tribunal, to reach its conclusion. The court also noted the importance of the specific criteria outlined in the applicable Statements of Principles when assessing claims for veterans' benefits.

The final orders of the court were that Slater's application for review was dismissed, and the decision of the Repatriation Commission was affirmed. The court held that Slater was not entitled to the benefits he sought under the Veterans' Entitlements Act 1986.

Orders