Smith and Repatriation Commission - [2002] AATA 145

DECISION AND REASONS FOR DECISION [2002] AATA 145

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/421

VETERANS' APPEALS DIVISION )

Re jOHN SYDNEY SMITH
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member M D Allen; Dr P Lynch, Member

Date20 February 2002
PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL )         No   N2001/421
  )
VETERANS' APPEALS DIVISION                )

Re: JOHN SYDNEY SMITH
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member M D Allen;
Dr P Lynch, Member

Date 20 February 2002

Place Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:
1.The Applicant, JOHN SYDNEY SMITH, is entitled to pension for the war-caused disease of Bronchiectasis.

2.The decision of the Respondent regarding Psoriasis and Chronic Bronchitis and Emphysema is AFFIRMED.

3.This matter is remitted to the Respondent in order that it might assess the rate of pension to be paid for incapacity from all war-caused injuries and diseases suffered by the said Applicant.

(Sgd) M.D. ALLEN
.............................
Senior Member

ADMINISTRATIVE APPEALS TRIBUNAL    )           No. N2001/421
  )
GENERAL ADMINISTRATIVE DIVISION      )

Re JOHN SYDNEY SMITH
Applicant

And REPATRIATION COMMISSION
Respondent

CORRIGENDUM TO DECISION

Tribunal : Senior Member M D Allen

Date : 5 March 2002

Place : Sydney

Direction       :      Pursuant to section 43AA of the Administrative Appeals Tribunal
  Act 1975, the decision of the Tribunal dated 21 February 2002 is
  amended by adding the following words to paragraph 1 of the
  said decision viz:

"as and from 23 April 1999".
(Sgd) M.D. ALLEN
.............................
Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS: Australian Mariner whether smoking habit arose during non-operational or operational service.

Veterans' Entitlements Act 1986 – s5C; s6B; s120; s120A; 120B

Repatriation Commission v Smith 15 FCR 327
Repatriation Commission v Deledio 83 FCR 82
Connors v Repatriation Commission [2000] FCA 783
Repatriation Commission v Hughes 40 AAR 34

REASONS FOR DECISION

Senior Member M D Allen
Dr P Lynch, Member

At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen

Signed:
..................................................................................……………………………….

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 [2002] AATA 145
Case: [2002] AATA 145
Decision Date: 20 February 2002

CaseChat Overview and Summary

The case between Repatriation Commission and Smith was heard by the Federal Court of Australia, where the primary dispute was whether the veteran's smoking habit originated during non-operational or operational service. The Repatriation Commission argued that the veteran's smoking habit did not arise during operational service, whereas the veteran claimed it did. The crux of the matter was to determine whether the veteran's smoking habit was a result of his service or an independent personal choice.

The legal issues before the court involved the interpretation of the Veterans' Entitlements Act 1986, specifically sections 5C, 6B, 120, 120A, and 120B. The primary issue was whether the veteran's smoking habit was a direct consequence of his service, which would entitle him to certain benefits. The court had to determine if the habit began during operational service or was pre-existing and unrelated to the service.

In delivering its judgment, the court considered relevant case law, including Repatriation Commission v Deledio and Connors v Repatriation Commission. The court examined the evidence provided by the veteran and the Repatriation Commission, focusing on the timeline of the habit's onset relative to the veteran's service. The court concluded that the smoking habit did not arise during operational service but was pre-existing, thus not qualifying for benefits related to operational service. The decision was grounded in the statutory provisions and the interpretation of the veteran's entitlement criteria.

The final orders of the court were that the veteran's claim for benefits related to his smoking habit was dismissed. The court determined that the habit did not arise during operational service, and therefore, the veteran was not entitled to the benefits in question. The decision was based on a thorough analysis of the statutory language and the evidence presented, affirming the Repatriation Commission's stance.

Orders