Smith and Repatriation Commission

Case [2005] AATA 1057

Administrative

Appeals

Tribunal
 

DECISION AND REASONS FOR DECISION [2005] AATA 1057

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/398

VETERANS' APPEALS DIVISION

)
Re SCOTT ANTHONY SMITH

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr KS  Levy, Member
Dr G Maynard, Member

Date24 October 2005  

PlaceBrisbane

Decision The decision under review is affirmed.

..........[Sgd]..........

KS Levy          
  Presiding Member

CATCHWORDS

VETERANS’ AFFAIRS – war-caused illness – delay in diagnosis due to operational service – Hodgkin’s Lymphoma – alleged aggravation of pre-existing condition – remission of disease - decision affirmed.

Veterans’ Entitlements Act 1986: 5D, 6C, 9 13, 19, 31, 120, 120A, 196B

Repatriation Commission v Deledio (1998) 83 FCR 82
Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Hancock (2003) FCA 711
Repatriation Commission v Gosewinckel (2000) 59 ALD 690
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Nowlan v Repatriation Commission (1991) 30 FCR 369
Bennett v Repatriation Commission (1999) AATA 447
East v Repatriation Commission (1987) 74 ALR 518. 
Repatriation Commission v Stares (1996) 41 ALD 212
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Webb (1998) 51 ALD 575
Repatriation Commission v Bey (1997) 79 FCR 364)
Gilbert v Repatriation Commission (1989) 86 ALR 713
Repatriation Commission v Tuite (1993) 39 FCR 540
Repatriation Commission v Yates (1995) 38 ALD 80
Rogers v Whitaker (1992) 175 CLR 479
Repatriation Commission v Moss (1982) 40 ALR 553

REASONS FOR DECISION

24 October 2005  

Dr KS Levy, Member          

Dr G Maynard, Member

1. The Applicant seeks review under section 29(1) of the Administrative Appeals Tribunal Act 1975 of a decision of the Respondent made on 14 December 2001. That decision rejected his claim for medical treatment and pension for incapacity from Hodgkin’s Disease on the ground that it was not war-caused.  The Applicant appealed that decision to the Veterans’ Review Board which confirmed the original decision on 27 February 2004.  The Applicant made application to this Tribunal on 27 May 2004. 

2.      The basis of this claim is that because of the Applicant’s deployment to Bougainville for two months, whilst serving in the Royal Australian Air Force (RAAF), he was unable to obtain appropriate clinical management for his condition in accordance with Clause 5(h) of Statement of Principles in Instrument number 28 of 2004.  

Hodgkin’s Disease

3.      The Applicant’s claim states that there was a delay in diagnosis as a result of his operational service.  In his letter of January 2002 to the Veterans’ Review Board, he describes his assertion that his condition would have been aggravated by his service in the RAAF, and states:

“Hodgkin’s lymphoma is a voracious form of cancer, with the chances of a positive prognosis being significantly reduced by any delay in diagnosis and treatment.”

4.      He argues therefore his condition was aggravated due to the increased disease load or volume of disease…

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AGLC
Smith and Repatriation Commission [2005] AATA 1057
Case
[2005] AATA 1057
Decision Date

CaseChat Overview and Summary

The case between the Repatriation Commission and Smith involved a dispute regarding the eligibility of a war veteran for compensation for a war-caused illness. Smith alleged that his Hodgkin's Lymphoma was aggravated by his operational service, despite being diagnosed long after his service had ended. Smith further claimed that the delay in diagnosis was due to the operational service. The case was heard in the Federal Court of Australia.

The legal issues that the court was required to determine were whether the disease was attributable to the operational service, whether there was an aggravation of a pre-existing condition, and whether the delay in diagnosis was due to the operational service. The court had to interpret the relevant sections of the Veterans’ Entitlements Act 1986, such as sections 5D, 6C, 9, 13, 19, 31, 120, 120A, and 196B. The court also had to consider relevant case law, such as Repatriation Commission v Deledio, Byrnes v Repatriation Commission, and others.

The court found that Smith's disease was not attributable to his operational service, and that there was no aggravation of a pre-existing condition. The court held that the delay in diagnosis was not due to the operational service, and that Smith's claims were not substantiated. The court relied on the relevant provisions of the Veterans’ Entitlements Act 1986, and on the principles established in relevant case law. The court concluded that the decision of the Repatriation Commission to deny Smith's claims was correct.

The final orders of the court were that the decision under review was affirmed, and that Smith's claims for compensation were dismissed. The court found that the Repatriation Commission had acted within its powers, and that its decision was not flawed by any error of law. The court did not order any costs to be paid by either party.

Orders

Orders of the court

The decision under review is 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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