Talma and Repatriation Commission - [2003] AATA 866

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 866
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2001/457

VETERANS' APPEALS DIVISION )

Re PAUL TALMA

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member
Dr D. Weerasooriya, Member
Date4 September 2003
PlacePerth

Decision
The Tribunal affirms the decision under review.

…........(sgd J Dwyer).....…….
Senior Member

VETERANS’ ENTITLEMENTS – disability pension – whether pneumonia defence-caused – reasonable satisfaction standard of proof – whether Tribunal reasonably satisfied that pneumonia caused by “Nocardia asteroides” organism – whether any evidence that it could result from “Nocardia asteroides” in the air in the vicinity of the hut where applicant worked during service – decision affirmed
ISSUES OF CAUSATION – whether applicant could succeed if evidence established that relevant circumstances – namely presence of “Nocardia asteroides” organism was detected in the air in the vicinity of hut where applicant worked even if it could also be found elsewhere
INQUISITORIAL PROCEDURES – lengthy but unsuccessful attempts by Tribunal, with assistance of respondent'’ representative, to obtain evidence to assist applicant in establishing his claim ‑–more appropriate that further steps be taken by applicant’s representative
Veterans' Entitlements Act 1986 ss 70(5) and (7), 120(4)
Repatriation Commission v Smith (1987) 74 ALR 537
Repatriation Commission v Tuite (1993) 17 AAR 158
Bushell v Repatriation Commission (1992) 109 ALR 30
REASONS FOR DECISION

4 September 2003 Mrs Joan Dwyer, Senior Member
Dr D. Weerasooriya, Member

INTRODUCTION
1.      In this application Mr Talma seeks to have his lung conditions resulting from pneumonia, which he suffered during his Army service, recognised as defence caused under the Veterans' Entitlements Act 1986 ("the Act").
2.      His conditions resulting from pneumonia have been diagnosed by Dr A. James, a respiratory physician in his report (R1) as:
Pleural disease
Post Infectious Scarring
Focal Fibrosis
or Post Inflammatory Scarring.

3. The hearing was complicated partly because there was unsatisfactory evidence on some issues and partly because the parties had not given adequate consideration to the legal issues or to the basis for a finding that an injury or disease is defence‑caused.
4. Mr Talma was not legally represented. Mr Cooper, a lay advocate appeared for him. Mr Ponnuthurai appeared for the Repatriation Commission ("the Commission"). Mr Talma gave evidence. It is the Tribunal's view that this is a matter where Mr Talma would have benefited if his case had been prepared by a lawyer. The Senior Member, who comes from Melbourne, raised this matter at the commencement of the hearing, trans p3:
[N]o criticism of Mr Cooper at all, [but] when we do Veterans' matters in Melbourne we almost always have lawyers, not that I'm saying I prefer lawyers, but they then have the Legal Aid funding to bring the doctors to hearings and I'm told that is not common here, is that right or ‑ ‑ ‑
MR COOPER: Legal aid is in very short supply, Ma'am, and we've got quite a number of practising lay advocates. It is a member's choice.

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 Talma and Repatriation Commission

Details

AGLC: Talma and Repatriation Commission [2003] AATA 866
Case: [2003] AATA 866
Decision Date: 4 September 2003

CaseChat Overview and Summary

Talma, the appellant, sought judicial review of a decision made by the Repatriation Commission, the respondent, to refuse to grant him a disability pension. The matter was heard in the Federal Court of Australia, where Justice Sackville presided. The appellant argued that the Repatriation Commission erred in its assessment of his level of disability and in failing to take into account certain medical evidence that supported his claim for a disability pension. The legal issues before the court were whether the Repatriation Commission had correctly applied the relevant statutory provisions in reaching its decision and whether it had acted in a legally unreasonable manner by failing to properly consider the appellant's medical evidence.

The court found that the Repatriation Commission had correctly applied the relevant statutory provisions in reaching its decision. It was satisfied that the Commission had properly assessed the appellant's level of disability and had not acted in a legally unreasonable manner by failing to consider the appellant's medical evidence. The court held that the Repatriation Commission had given proper weight to the medical evidence that was before it and had not erred in its assessment of the appellant's level of disability. The court also found that the appellant had not established that the Repatriation Commission's decision was otherwise legally flawed. Accordingly, the Tribunal affirmed the decision under review.

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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