Smith and Repatriation Commission - [2011] AATA 605

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 605
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1733

VETERANS' APPEALS DIVISION )

Re LINDSAY KELVIN SMITH

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member K Bean
Date31 August 2011
PlaceAdelaide

Decision
The Tribunal:
(a) varies the decision under review so as to provide that Mr Smith suffers from the condition of generalised anxiety disorder and that condition is war-caused;
(b) otherwise affirms the decision under review;
(c) remits the matter to the respondent for assessment of Mr Smith’s entitlement to pension in accordance with these reasons for decision; and

(d) reserves liberty to the parties to apply, within 14 days after the date of publication of this decision, in relation to the date of effect from which any pension payable as a result of this decision should take effect, and in the absence of any such application, directs that the date of effect will be 1 March 2008.

..............................................
K BEAN
(Senior Member)

CATCHWORDS
VETERANS' AFFAIRS – Veterans' entitlements – Operational service – Carotid arterial disease – Ischaemic heart disease – Retinal vascular occlusive disease – Atrial fibrillation – Heart failure – Generalised anxiety disorder – Application of Deledio – Hypothesis raised in respect of generalised anxiety disorder – Material points to factors in the SoP – Tribunal not satisfied beyond reasonable doubt that condition not war-caused – Generalised anxiety disorder found to be war-caused – Other conditions either not the subject of a hypothesis or the hypothesis does not satisfy the applicable SoP – Those conditions not war-caused – Decision under review varied.
Veterans’ Entitlements Act 1986 ss 6-6F, 9, 13(1), 119, 120, 120A, 196A, 196B
Benjamin v Repatriation Commission (2001) 70 ALD 622
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) 175 CLR 408
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Gorton (2001) 110 FCR 321
Statement of Principles Instrument No 9 of 2003
Statement of Principles Instrument No 101 of 2007
Statement of Principles Instrument No 89 of 2007
Statement of Principles Instrument No 19 of 2003
Statement of Principles Instrument No 83 of 2011
Statement of Principles Instrument No 33 of 2006
REASONS FOR DECISION

31 August 2011   Senior Member K Bean

introduction
1.      The applicant, Mr Smith, was born on 1 May 1924 and served with the Australian Army from 17 August 1942 to 8 August 1946. He was only 18 years old when he joined the Army and his service included overseas service in New Guinea and New Britain. As a result of his service, Mr Smith contracted malaria and suffered hearing loss and tinnitus and has been in receipt of a disability pension paid at 40 percent of the general rate since September 2007.
2.      In recent years, Mr Smith has also made claims in relation to a number of other…

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 Smith and Repatriation Commission

Details

AGLC: Smith and Repatriation Commission [2011] AATA 605
Case: [2011] AATA 605
Decision Date: 31 August 2011

CaseChat Overview and Summary

In the case of Smith and Repatriation Commission, the applicant, Mr Smith, sought a review of a decision by the Repatriation Commission regarding his entitlement to veterans' benefits. Mr Smith claimed that several medical conditions he suffered from, including carotid arterial disease, ischaemic heart disease, retinal vascular occlusive disease, atrial fibrillation, heart failure, and generalised anxiety disorder, were caused by his service in the Australian Defence Force. The dispute was heard by the Administrative Appeals Tribunal.

The primary legal issues that the Tribunal had to address were whether Mr Smith's conditions were war-caused and thus eligible for compensation under the Veterans' Entitlements Act 1986. Specifically, the Tribunal needed to determine if the evidence supported a hypothesis that Mr Smith's generalised anxiety disorder was caused by his military service. Additionally, the Tribunal had to examine whether the other conditions met the criteria set out in the applicable Statements of Principles.

The Tribunal found that while the evidence did not conclusively prove that Mr Smith's generalised anxiety disorder was not caused by his service, it did show that it was more likely than not that the condition was war-caused. Consequently, the Tribunal varied the decision to acknowledge that Mr Smith's generalised anxiety disorder was indeed war-caused. However, the Tribunal concluded that the evidence did not support a finding that the other listed conditions were war-caused, as either the hypothesis was not raised in respect of those conditions or the evidence did not meet the criteria in the applicable Statements of Principles.

The Tribunal varied the decision to recognise that Mr Smith's generalised anxiety disorder was war-caused and remitted the matter back to the Repatriation Commission to reassess Mr Smith's entitlement to pension. The Tribunal also reserved the right for the parties to apply for a specific date of effect for any pension payable within 14 days of the decision's publication, directing that if no such application was made, the date of effect would be 1 March 2008.

Orders

Orders of the court

The Tribunal:

(a) varies the decision under review so as to provide that Mr Smith suffers from the condition of generalised anxiety disorder and that condition is war-caused;

(b) otherwise affirms the decision under review;

(c) remits the matter to the respondent for assessment of Mr Smith’s entitlement to pension in accordance with these reasons for decision; and

(d) reserves liberty to the parties to apply, within 14 days after the date of publication of this decision, in relation to the date of effect from which any pension payable as a result of this decision should take effect, and in the absence of any such application, directs that the date of effect will be 1 March 2008.

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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VETERANS' APPEALS DIVISION		)
Re		LINDSAY KELVIN SMITH