Turner and Repatriation Commission - [2001] AATA 708

DECISION AND REASONS FOR DECISION [2001] AATA 708

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2000/155

VETERANS' APPEALS DIVISION       )
           Re      DOUGLAS FRANK TURNER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date10 August 2001
PlaceHobart

Decision      The decision under review is affirmed.
  ..............................................
  Deputy President
CATCHWORDS
Veterans' Appeals – whether operative service – reasonable hypothesis of connection to service – causes of cerebrovascular accident – direct evidence not required – whether assumption may be made – decision affirmed.
Veterans' Entitlements Act 1986.
Smith v Repatriation Commission [1999] FCA 1484

REASONS FOR DECISION

10 August 2001 Mr S P Estcourt QC., (Deputy President)

This is an application by Douglas Frank Turner to review that part of the decision of a delegate of the Repatriation Commission of 28 October 1997, subsequently affirmed by a decision of the Veterans' Review Board of 24 October 2000, refusing the applicant's claim to have his cerebrovascular accident accepted as war-caused.
The applicant contends that he had operational service within the meaning of s.6 of the Veterans' Entitlements Act 1986, having served in the Australian Army from 4 November 1941 to 12 March 1946, including service in Dutch New Guinea.
The applicant further contends that the cerebrovascular accident he suffered in or about July 1997 was war-caused by virtue of SOP No. 53 of 1999 in that he suffered panic disorder before the clinical onset of the cerebrovascular accident.
The respondent contests the applicant's claim in respect of operational service and, whilst agreeing that SOP No. 53 of 1999 is an appropriate statement of principles to apply, contests that the evidence establishes that the applicant suffered from a panic disorder as defined before the clinical onset of his cerebrovascular accident.
To establish his operational service, the applicant (who was not sufficiently well to attend the hearing) relied on evidence from Mr Alfred Dilba who had been told by the applicant that during his period of service he had gone to Merauke (which is accepted by the parties as being in Dutch New Guinea and therefore, if true, giving rise to operational service).
Mr Dilba said that Mr Turner had told him that he went to Merauke by barge from Horn Island, having been sent with supplies which the 74th Australian Searchlight Battery had but the 76th Australian Mobile Searchlight Battery did not.
Mr Turner told Mr Dilba that he had gone to Merauke with about 10 other members of his unit and spent about 3 – 4 weeks there, doing everything, including guard duty.
Mr Turner further told Mr Dilba that he had returned to Horn Island from Merauke by barge and that the reason for the transfer of supplies was the "old boys network". Mr Dilba explained this as "one Colonel to the other being friends, short-cutted the delivery route in the sense of asking for supplies to get it quicker. One asked the other and so on …".
Mr Dilba also produced Mr Turner's photograph album…

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 Turner and Repatriation Commission

Details

AGLC: Turner and Repatriation Commission [2001] AATA 708
Case: [2001] AATA 708
Decision Date: 10 August 2001

CaseChat Overview and Summary

In the case of Turner and Repatriation Commission, the Federal Court of Australia dealt with an appeal concerning the eligibility of a veteran for certain benefits under the Veterans' Entitlements Act 1986. The dispute revolved around whether the veteran's service in the Australian Defence Force constituted "operative service" for the purposes of the Act, and specifically whether there was a reasonable hypothesis that the veteran's service was connected to his cerebrovascular accident. The Repatriation Commission had denied the veteran's claim for benefits, and Turner appealed this decision.

The legal issues before the court included determining whether the requirement for "operative service" under the Act necessitated direct evidence of a connection between the veteran's service and his medical condition, or if a reasonable hypothesis was sufficient. Another issue was whether an assumption could be made in the absence of direct evidence, and how the court should approach the question of whether a reasonable hypothesis existed. The court was also tasked with assessing the overall approach taken by the Commission in evaluating the veteran's claim.

The court held that for the purposes of the Act, a reasonable hypothesis was sufficient to establish the connection between the veteran's service and his cerebrovascular accident, even in the absence of direct evidence. The court emphasised that the Act does not require proof beyond reasonable doubt but rather a reasonable hypothesis that the service caused the condition. The court affirmed the decision of the Repatriation Commission, finding that the Commission had properly applied the relevant legal principles and made a decision that was not unreasonable in the circumstances. The court noted that the veteran had not provided sufficient evidence to meet the standard required under the Act.

The court's decision affirmed the Repatriation Commission's denial of the veteran's claim for benefits, upholding the requirement that a reasonable hypothesis must be supported by evidence, and that the onus was on the veteran to demonstrate this connection. The court did not make any specific orders beyond affirming the decision of the Commission.

Orders