Stevenson and Repatriation Commission - [2004] AATA 93

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 93
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/392

VETERANS' APPEALS DIVISION )

Re RONALD STEVENSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
Mrs Joan Dwyer, Senior Member
Dr. P. Fricker, Member

Mr. W.G. McLean, Member

Date

4 February 2003

Place

Melbourne

Decision
The Tribunal affirms the decision under review.

[sgd] Mrs Joan Dwyer
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – eligible service – standard of proof for determination that disease or injury is war-caused – reference to relevant Statements of Principles – Tribunal’s inquisitorial role – lumbar spondylosis not war-caused – hiatus hernia not war-caused – gastro oesophageal reflux disease not war-caused – decision under review affirmed.
LAW REFORM – request for review of SoP for Hiatus Hernia – Instrument No. 43 of 1999.
Veterans’ Entitlements’ Act 1986, ss 6- 6F, s 7, s 120 and s 120B.
Administrative Appeals Tribunal Act 1975, s 37.
Statement of Principles Instrument No. 47 of 2002
Statement of Principles Instrument No. 43 of 1999
Statement of Principles Instrument No. 53 of 2002
Statement of Principles Instrument No. 63 of 1999
Repatriation Commission v Smith (1987) 74 ALR 537.
Re Sharkey and Repatriation Commission (1988) 15 ALD 782.
Repatriation Commission v Gorton (2001) 65 ALD 609.
Bushell v Repatriation Commission (1992) 109 ALR 30.
Benjamin v Repatriation Commission (2001) 34 AAR 270.
REASONS FOR DECISION

4 February 2004
Mrs Joan Dwyer, Senior Member

Dr. P. Fricker, Member

Mr. W.G. McLean, Member

1.        This is an application for review of a decision of the Repatriation Commission made on 22 August 2001 which rejected Mr Stevenson’s claim to have gastro-oesophageal reflux disease, lumbar spondylosis and hiatus hernia accepted as war-caused diseases under the Veterans' Entitlements Act 1986 (“the Act”). The decision of the Repatriation Commission was affirmed by the Veterans’ Review Board on 10 September 2001.
2. Mr De Marchi, a solicitor, appeared for Mr Stevenson. Ms McCulloch, an advocate with the Department of Veterans’ Affairs, appeared for the Repatriation Commission. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and also the exhibits tendered during the hearing. Mr Stevenson gave evidence. Evidence on his behalf was also given by Mr Marshall, a general surgeon with a special interest in gastroenterology, and by Mr Billet, an orthopaedic surgeon. The respondent called Dr Moran, a gastroenterologist.
3.        Mr Stevenson served in the Australian Army between 19 January 1942 and 11 December 1945. His service was all within Australia and is “eligible war service” as defined in s 7 of the Act, but not “operational service” within the terms of ss 6 – 6F. Accordingly, the standard of proof for determining the claim is that in s 120(4) of the Act which provides as follows:
120Standard of proof
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any…

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 Stevenson and Repatriation Commission

Details

AGLC: Stevenson and Repatriation Commission [2004] AATA 93
Case: [2004] AATA 93
Decision Date: 4 February 2004

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal involved a veteran who sought to have his claims for war-related injuries and diseases recognised and compensated. The veteran, represented by the applicant, contested the Repatriation Commission’s decision to deny his claims for lumbar spondylosis, hiatus hernia, and gastro oesophageal reflux disease as war-caused. The Tribunal was required to review the decision under the Administrative Appeals Tribunal Act 1975 and assess the relevant evidence in light of the applicable Statements of Principles.

The primary legal issue before the Tribunal was whether the veteran had established that his claimed conditions were caused by his war service. The Tribunal needed to determine the appropriate standard of proof required for the veteran to succeed in his claims and to interpret the relevant Statements of Principles to ascertain whether the veteran’s conditions were covered. The Tribunal also had to consider whether the evidence was sufficient to satisfy the required standard of proof and whether the Commission had properly exercised its inquisitorial role.

The Tribunal examined the evidence presented and the relevant Statements of Principles, including Instrument No. 47 of 2002, Instrument No. 43 of 1999, Instrument No. 53 of 2002, and Instrument No. 63 of 1999. The Tribunal concluded that the veteran had not met the required standard of proof for any of the claimed conditions. The evidence did not establish that the veteran’s lumbar spondylosis, hiatus hernia, or gastro oesophageal reflux disease were war-caused within the meaning of the relevant provisions and Statements of Principles. The Tribunal found that the Commission had properly exercised its inquisitorial role and had not erred in its decision-making process.

The Tribunal affirmed the decision of the Repatriation Commission, holding that the veteran was not entitled to recognition and compensation for his claimed conditions. The Tribunal found that the veteran had not discharged the onus of proving that his conditions were war-caused. The Tribunal did not find it necessary to consider the request for a review of the relevant Statement of Principles for hiatus hernia.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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Tribunal	Mrs Joan Dwyer, Senior Member Dr. P. Fricker, Member Mr. W.G. McLean, Member
Date	4 February 2003
Place	Melbourne
Decision	The Tribunal affirms the decision under review.