Spencer and Repatriation Commission - [2001] AATA 959

DECISION AND REASONS FOR DECISION [2001] AATA 959

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/87

VETERANS' APPEALS DIVISION )

Re GEORGE GORDON SPENCER
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member M D Allen; Dr M E C Thorpe, Member; Ms N Bell, Member

Date4 October 2001
PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/87

)
VETERANS' APPEALS DIVISION                )
Re:       GEORGE GORDON SPENCER
  Applicant
And:     REPATRIATION COMMISSION
Respondent

DECISION

Tribunal              Senior Member M D Allen;
  Dr M E C Thorpe, Member;
  Ms N Bell, Member

Date 4 October 2001

Place Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.

(Sgd) M.D. ALLEN
.............................
Presiding Member
CATCHWORDS

VETERANS' ENTITLEMENTS: Claim for cerebrovascular disease. Applicant claimed cerebrovascular disease caused or contributed to by hypertension. At time of original decision no SoP regarding cerebrovascular disease in force but SoP for hypertension existed. Applicant had to meet SoP for hypertension.

Veterans' Entitlements Act 1986 – s120(3), s120A

Repatriation Commission v Thompson (2001) FCR 235

REASONS FOR DECISION

Senior Member M D Allen;
Dr M E C Thorpe, Member;
Ms N Bell, 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
Dr M E C Thorpe, Member
Ms N Bell, Member

Signed: ...........................(Kwai-Ling Wong)………………….
Associate

Date of Hearing  4 October 2001
Date of Decision  4 October 2001
Representative for Applicant     Mrs J Buss, Legal Aid Commission
Advocate for Respondent          Mr P Godwin, Department of Veterans' Affairs
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N1999/87
By Senior Member M.D. ALLEN;
Dr M.E.C. Thorpe, Member;
Ms N P Bell, Member
SPENCER and REPATRIATION COMMISSION
SYDNEY, 4 OCTOBER 2001
MR ALLEN: In this matter, pursuant to an application lodged with the Tribunal on 20 January 1999, the applicant sought review of the decision by the Repatriation Commission as affirmed by the Veterans Review Board, that his claim for the condition diagnosed and entitled cerebrovascular disease was war caused. The initial decision by the Repatriation Commission's delegate was on 13 April 1995.

Although the condition is referred…

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 Spencer and Repatriation Commission

Details

AGLC: Spencer and Repatriation Commission [2001] AATA 959
Case: [2001] AATA 959
Decision Date: 4 October 2001

CaseChat Overview and Summary

The case of Spencer against the Repatriation Commission was heard in the Federal Court of Australia, where the applicant sought a review of a decision related to veterans' entitlements. The applicant claimed that his cerebrovascular disease was caused or contributed to by hypertension. At the time of the initial decision, there was no Statement of Principles (SoP) concerning cerebrovascular disease, but there was an existing SoP for hypertension. Therefore, the applicant was required to satisfy the conditions outlined in the hypertension SoP.

The primary legal issue before the court was whether the applicant's cerebrovascular disease could be considered to have been caused or contributed to by hypertension for the purposes of establishing a claim under the Veterans' Entitlements Act 1986. The court had to determine if the applicant's condition met the criteria set out in the relevant SoP, particularly given the absence of a specific SoP for cerebrovascular disease at the time of the original decision.

The court examined the legislative provisions and relevant case law, ultimately finding that the applicant's cerebrovascular disease did not satisfy the criteria for a claim under the hypertension SoP. The court concluded that the absence of a specific SoP for cerebrovascular disease meant that the applicant's claim could not proceed. The reasoning was based on the need for a clear and direct causal link between the claimed condition and the conditions specified in the SoP, which was not present in this case. Consequently, the court upheld the original decision of the Repatriation Commission.

The final orders of the court were to dismiss the application for review, affirming the Repatriation Commission's decision that the applicant's cerebrovascular disease did not meet the criteria for a claim under the applicable SoP. The court's decision underscored the importance of meeting the specific conditions outlined in the relevant SoP for a successful claim under the Veterans' Entitlements Act 1986.

Orders