Webster and Repatriation Commission - [2006] AATA 162

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 162
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/685

VETERANS’ APPEALS DIVISION
)

Re ROBERT DENNIS WEBSTER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms M J Carstairs, Member
Date24 February 2006
PlaceBrisbane

Decision
The Tribunal sets aside the decision under review and substitutes the decision that malignant neoplasm of lymph nodes of the neck, hypopharyngeal oedema and oesophageal web are war-caused within the meaning of s9 of the Veterans’ Entitlements Act 1986. Mr Webster’s rate of pension continues at 100% of the General Rate.

.

. .........[Sgd].......
M J Carstairs
Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – entitlement - operational service in far eastern strategic reserve and Vietnam – malignant neoplasm of lymph nodes of the neck – hypo-pharyngeal oedema and oesophageal web –veteran’s smoking history - whether conditions war caused
Assessment – whether special rate payable - whether extreme disablement rate payable
Veterans’ Entitlements Act 1986 ss9, 22, 24 29, 120, 120A
Grundman and Repatriation Commission (1996) 42 ALD 474
Deledio v Repatriation Commission (1997) 47 ALD 261
Re Forrester and Repatriation Commission (AAT 12510, 22 December 1997)
Cavellv Repatriation Commission (1988) 9 AAR 534
Hendy v Repatriation Commission [2002] FCA 602.
Raisbeck v Repatriation Commission (1993) 31 ALD 704
Repatriation Commission v Gorton (2001) 110 FCR 321
Flentjar v Repatriation Commission (1997) 48 ALD 1
REASONS FOR DECISION

24 February 2006 Ms M J Carstairs, Member

1.        Robert Webster lodged a claim to have three medical conditions of secondary squamous cell cancer in the left submandibular lymph glands, hypopharyngeal oedema, and oesophageal web accepted as due to his naval service. Mr Webster currently receives disability pension, assessed at 100% of the general rate, which is the maximum amount of general rate pension. He asks that, if these claims are successful, his rate of pension be re-assessed by considering his entitlement to one of the higher rates payable under the Veterans’ Entitlements Act 1986 (the Act), paid where a veteran is unable to continue to work, or is suffering severe levels of disability.
BACKGROUND
2.        Mr Webster, who is now aged sixty-six, enlisted in the Royal Australian Navy in 1957 when he was aged 17. He then served for some 12 years and within that time had two periods of operational service within the Far Eastern Strategic Reserve (FESR) and when he was involved in naval operations connected with the Vietnam War.
3.        The periods of operational service were:
FESR:           26 January 1959 to 24 December 1959;
2 January 1960 to 17 February 1960;
28 March 1991 to 17 April 1961;
4 May 1961 to 28 May 1961;
7 July 1961 to 14 August 1961;
12 September 1961 to 3 October 1961.

Vietnam: 27 May 1965 to 6 June 1965;
14 September 1965 to 20 October 1965;
14 May 1965 to 25 May 1965

4. Before he joined the navy, Mr Webster commenced but did not complete an apprenticeship as a fitter and turner, choosing instead…

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 Webster and Repatriation Commission

Details

AGLC: Webster and Repatriation Commission [2006] AATA 162
Case: [2006] AATA 162
Decision Date: 24 February 2006

CaseChat Overview and Summary

The case of Webster and Repatriation Commission involved the applicant, Mr Webster, who was appealing a decision regarding his eligibility for certain veterans' entitlements. The dispute centred around whether specific medical conditions Mr Webster was experiencing, including malignant neoplasm of lymph nodes of the neck, hypo-pharyngeal oedema, and oesophageal web, were causally linked to his service in the Far Eastern Strategic Reserve and Vietnam. The matter was brought before the Federal Court of Australia to determine the eligibility for special and extreme disablement rates under the Veterans' Entitlements Act 1986.

The primary legal issues before the court were whether the conditions in question were war-caused within the meaning of section 9 of the Act, and if so, whether Mr Webster was entitled to be paid at the special or extreme disablement rates as provided for under sections 22 and 24. The court had to consider the interplay between Mr Webster's medical conditions, his service history, and relevant legislative provisions, including the definition of war-caused conditions and the criteria for determining pension rates. The court also had to navigate the precedents set by previous cases such as Grundman and Repatriation Commission, Deledio v Repatriation Commission, and Raisbeck v Repatriation Commission, amongst others.

In delivering its judgment, the court found that Mr Webster's medical conditions were indeed war-caused, thereby satisfying the criteria under section 9 of the Veterans’ Entitlements Act. The court held that despite Mr Webster's smoking history, his conditions were sufficiently linked to his service to be considered war-caused. Consequently, the Tribunal set aside the original decision and substituted it with a decision recognising the war-causation of the conditions. The court further ruled that Mr Webster's rate of pension should continue at 100% of the General Rate, as he did not meet the criteria for the special or extreme disablement rates. This comprehensive analysis ensured that the decision aligned with both statutory requirements and relevant case law.

Orders

Orders of the court

The Tribunal sets aside the decision under review and substitutes the decision that malignant neoplasm of lymph nodes of the neck, hypopharyngeal oedema and oesophageal web are war-caused within the meaning of s9 of the Veterans’ Entitlements Act 1986. Mr Webster’s rate of pension continues at 100% of the General Rate.

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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VETERANS’ APPEALS DIVISION		)
Re		ROBERT DENNIS WEBSTER