20 VeRBosity 1

�������� Volume 20 No. 1

ContentsJanuary - March 2004

Vale – Peter Alexander 2

Release of 1973 Cabinet papers 2

Response to the Clarke Report 4

Questions & Answers 9

Administrative Appeals Tribunal

Elson, J P 11

Jenkin, W H 12

Johnson, K D 13

Federal Court of Australia

Roscoe 15

Van Ewijk 17

Pritchard 19

Robertson (respondent) 20

Delahunty 22

Leane 24

Statements of Principles 27

RMA Investigations 28

Index of AAT & Court cases 30

Editor’s notesVeRBosity has reached its 20th volume!Some people have wondered who cameup with the name. Before this piece oftrivia is lost I thought I should record thatthe name was suggested by BrendaHennessy, the VRB’s librarian in 1985.Stephen Skehill, the first PrincipalMember, approved of it as he thought itreflected the more informal approach hewished to bring to Board hearings. Iremember how I incurred Stephen’s irewhen, in 1987, I did away with thecartoon characters on the cover withouttelling him (I think he saw himself as oneof them). While the cartoons are nolonger on the cover, Stephen’s vision of anapproachable, relatively informal, Boardhas been maintained.

We will make every effort to ensure thatVeRBosity continues to provide usefulinformation and be of assistance topractitioners. Your suggestions for newideas and improvements in VeRBosity arealways welcome. With the new MilitaryRehabilitation and Compensation Act 2004commencing on 1 July 2004, it is likely tobe a challenging future and VeRBosity willkeep you informed of developments.

Bruce TopperwienEditor

This edition of VeRBosity contains reports onveterans’ matters in all 6 Federal Court judgmentscome to attention in the period from January toMarch 2004 as well as selected AAT decisionshanded down in the same period. Also included isan index of all AAT and Court cases received in thisperiod, and information on recent Statements ofPrinciples determined and investigations notified bythe Repatriation Medical Authority.

Vale – Peter Alexander

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Vale –Peter AlexanderCMG, OBE, OAM, FCIS, FCPA, CTuC, OLG

(Reproduced from The Australian,3 February 2004)

Veterans’ advocate. Born SydneyJanuary 9, 1915. Died SydneyDecember 26, 2003, aged 88.

Peter Alexander lived his life devoted tothe service of others. He was one ofAustralia’s most committed veterans’advocates and his list of achievements onbehalf of veterans is astounding. Heserved in an honorary capacity on morecommittees, task forces, boards andorganisations than most people wouldthink possible in one lifetime.

Alexander was secretary of the AustralianVeterans and Defence Services Councilfor 32 years. He fought for the recognitionof war-related diseases and syndromes,such as post-traumatic stress disorder, sotreatments could be researched andsufferers afforded adequate care.

Through his tireless work he made a realdifference to the lives of many ex-servicemen and women and their families. On hisretirement from the council, Veterans’Affairs Minister Danna Vale paid tribute tohis service.

‘Peter, words are never enough totruly acclaim your exceptional service– you are one of Australia’s finestsons. You are a national livingtreasure and your life is anexceptional example of citizenship ofthe highest order,’ Vale said.

Alexander was a veteran of World War 2,serving in North Africa, Gibraltar and Italyas a wireless operator with 458 Squadron,Royal Australian Air Force. He wrote thehistory of the 458 Squadron entitled WeFind and Destroy, published in three

editions in 1959, 1979 and 2001. He alsoedited the 458 Squadron’s quarterlynewsletter for more than 50 years, neveronce missing an edition. An accountant byprofession, he started the Australianbranch of the (British) Association ofChartered Certified Accountants and waspresident for several years from 1974.

Being of Scottish ancestry, Alexander wasalso active in the Scottish and Celticcommunities, especially in the years afterhis retirement. He was convenor of theCeltic Council of Australia since itsfoundation. Leaders of all Celticcommunities attend the council which haspromoted unity among Australia Celts. Hewas until his death a proud warden of theScottish memorial cairn, erected inMosman, Sydney in 1988 to mark 200years of Scottish presence in Australia.

He edited a number of periodical papers,including Harmabee for the KenyaAustralia Society and Clan McAllisterNews, ALBA, for the Scots, as well as the458 Squadron News. He wrote two papersin Scottish Gaelic.

He is survived by his wife, Rita, threedaughters Deborah, Julie and Melanie,and seven grandchildren.

Melanie Alexander

Release of 1973Cabinet papersOn 1 January 2004, the National Archivesreleased Cabinet papers from 1973.Among those papers were some 286pages of documents relating toRepatriation matters.

The Australian withdrawal from Vietnamwas nearing completion by the time theWhitlam government was elected on2 December 1972. One of the ALP’selection promises was to end NationalService, and on 6 and 7 December 1972,

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Lance Barnard (the other member of theinterim two-member Cabinet, whichoperated from 5 - 19 December 1972)made announcements concerning this aswell as announcing that such servicemenwould be eligible for Repatriation benefitsif they chose to remain in the DefenceForce and completed their NationalService engagement.

It was a hectic few weeks over theChristmas/New Year period in 1972-73both for government departments and thenew Ministry. On 8 January 1973, RichardKingsland, the Chairman of theRepatriation Commission, gave a Cabinetsubmission to Senator Reginald Bishop,the new Minister for Repatriation, forpresentation to Cabinet for theimplementation of some of the LaborParty’s election promises concerningveteran’s matters.

That submission proposed a number ofmatters including:

• an increase in the special rate ofpension to bring it to 50% of theminimum wage, and to adjust theother disability pension ratesproportionately;

• an increase in the war widow’spension and service pensions to keepit in line with the equivalent SocialSecurity pensions;

• the payment of pensions to studentchildren until they cease full-timeeducation instead of it cutting out atage 21;

• enabling legal personal represent-atives of deceased claimants toappeal to the War PensionsEntitlement Appeal Tribunal;

• recognising children of de facto wivesas dependants of the veteran.

Cabinet endorsed these proposals on16 January 1973 and made more detaileddecisions concerning them on13 February 1973. Draft Bills were

prepared and put to Cabinet on27 February 1973.

It took somewhat longer to get asubmission to Cabinet on the proposal toprovide eligibility for National Servicemenand other Defence personnel from7 December 1972. The matter went to anInter-Departmental Committee comprisingofficers from Defence, Social Security andthe Repatriation Department.

On 10 April 1973, Cabinet endorsed arecommendation that determiningauthorities under the Repatriation Act berequired to give reasons for their decisionsand that legislation be prepared to giveeffect to this proposal.

Meanwhile, other election promises werebeing considered in the Budget context,including the promise that within threeyears, disability pension would not count asincome under the service pension meanstest, and that a significant step towards thiswould be taken in the first year. Initially, itwas proposed to disregard 50% ofdisability pensions as income (submissionof 20 June 1973), but this was reduced todisregarding only 25% of the disabilitypension at the Cabinet meeting of 20 July1973, apparently upon concerns fromTreasury at the cost of the overall package.

Another important budget measureagreed to at that Cabinet meeting was toprovide medical treatment for cancers,whether service-related or not, and freemedical treatment for all disabilities toBoer War and World War 1 veterans.

In September 1973, Cabinet consideredand agreed to the draft legislation toprovide eligibility under the RepatriationActs for full-time members of the DefenceForce and National Servicemen whocompleted their full engagements. TheInter-Departmental Committee recom-mended changes to the originalgovernment intention that members have achoice of either CommonwealthEmployees’ Compensation or Repatriationbenefits, and instead recommended toCabinet that the legislation provide for

Response to the Clarke Committee Report on Veterans’ Entitlements

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offsetting of one set of payments againstthe other, so that members could choose totake from either or both schemes. Cabinetendorsed that recommendation andapproved the draft legislation that providedfor this: the Repatriation Bill (No. 3) 1973.

That legislation also provided for the givingof reasons by decision-makers, andenabled Repatriation hospitals to useunused bed-capacity for non-Repatriationpatients.

1973 was certainly a busy year, with anumber of very significant decisions takenand legislative provisions enacted.

Bruce Topperwien

Response to theClarkeCommitteeReport onVeterans’EntitlementsStatement by the Minister for Veterans’Affairs, the Hon Danna Vale, MP

Today [2 March 2004] the AustralianGovernment announced its response tothe Report of the Review of Veterans’Entitlements – the Clarke Report. Iestablished the Clarke Committee tohonour the Government’s electioncommitment to an independent review ofanomalies in veterans’ entitlements andthe level of benefits and support toveterans receiving the disability pension.

Since the report was published, theGovernment has thoroughly considered itsrecommendations and acknowledged arange of views expressed by veterans and

ex-service organisations, our Defence andVeterans’ Affairs Committee and our partyroom. The report, and the Governmentresponse, have been subject to intensescrutiny.

I thank the members of the ReviewCommittee – His Honour, Mr JusticeClarke, Air Marshal Doug Riding, Dr DavidRosalky, and their Secretariat, the manyveterans and organisations that madesubmissions to the review, and the widerveteran community for its interest andsupport.

This Government has placed a highpriority on meeting our obligations to thosewho serve in the defence of Australia.Since coming to office in 1996, we haveincreased spending on Veterans’ Affairsfrom $6.4 billion to $10 billion in thefederal Budget for 2003-04. Much of thisincreased spending has been due to theGovernment’s recognition of the growingand changing needs of Australia’sveterans, war widows and widowers asthey become older.

This is demonstrated by growth inveterans’ health spending, whereGovernment funding has increased from$1.7 billion in 1996 to a record $4.1 billionthis year.

We have worked to meet the needs of ourageing veteran community, by:• extending the Gold Card to Australian

veterans aged over 70 years withQualifying Service;

• introducing veteran partneringcontracts with private hospitals tobroaden the availability of qualityhospital care; and

• helping veterans and war widows tocontinue living at home throughprograms such as Home Front andVeterans’ Home Care.

We also have met our commitment to thehealth of younger veterans and theirfamilies by our Government’s response tothe Vietnam Veterans’ Health Study.

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Our aim is to maintain and protect thecentral services and benefits that veteransvalue so highly and to continue to addressthose areas of greatest need, inconsultation with the ex-servicecommunity.

The Clarke Report is the Government’ssecond major review in the Veterans’Affairs portfolio to be brought to theParliament. The first – the Mohr Review –resulted in recognition and increasedentitlements for a significant number ofAustralian service personnel who servedin South-East Asia between 1955 and1975, including more than 2, 600members of the Far East StrategicReserve.

Last year the Government introduced theMilitary Rehabilitation and CompensationBills into the House. These Bills are theGovernment’s detailed response to thefindings of the inquiry into the Black Hawkdisaster and the recommendations of theTanzer Review of Military Compensation.

They were developed with extensiveconsultation with the veteran and defenceforce communities and, I am pleased tosay, were passed by the House and arenow before the Senate.

The Bills bring together the best elementsof the Military Compensation Scheme andthe Veterans’ Entitlements Act to create asingle scheme for all Australian DefenceForce members who are injured or wholose their lives during future service.

In keeping with these initiatives, theGovernment’s response to the ClarkeReview also will benefit the veterancommunity. We have carefully worked ourway through the Committee’s 109recommendations to a response thatmaintains Australia’s fair and consistentrepatriation system.

The Government has accepted somerecommendations and rejected others.

The Government will be providing anadditional $267 million over the next five

years to implement the recommendationsthat we have accepted.

The recommendations can be usefullygrouped into five broad areas:• service eligibility;• access to the Gold Card;• benefits for Totally and Permanently

Incapacitated (TPI) and disabilitybenefit recipients;

• rehabilitation; and• other measures.

I shall address each of these themes inturn and I have attached theGovernment’s response to each of the109 recommendations.

Service Eligibility

Perhaps the most fundamental issuebefore the Committee was the issue ofservice eligibility. Sixty-five of the 109recommendations within the report relateto this issue.

In all, 38 of the 65 recommendations oneligibility suggested no change to thecurrent provisions under the VEA. Wehave accepted these recommendations.

The type of service a veteran hasrendered is at the centre of the veterans’entitlements system and accounts fordifferences in benefits and servicesreceived by individuals across the veterancommunity.

Traditionally, Australia has provided aspecial level of benefit for veterans withQualifying Service – that is, those whohave faced the risk of personal harm froman enemy – as opposed to OperationalService.

Today, the concept of Qualifying Servicehas been replaced by Warlike Service,defined as operations where theapplication of force is authorised forspecific military objectives and wherethere is an expectation of casualties.

In the current system, such entitlementsinclude access to the service pension at

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age 60 and free health care providedthrough the Gold Card at age 70.

I say, quite clearly, this Government willprotect the integrity of Qualifying Serviceto continue to give special recognition -and benefits - to those who serve theircountry at risk of personal injury or deathfrom an armed enemy.

So we endorse and accept theCommittee’s recommendation that therebe no change in the statutory test forQualifying Service.

However, we reject the Committee’s viewthat the ‘incurred danger test’ has beeninterpreted too narrowly by the courts andadministrators.

Public support and confidence in thegenerosity of our Repatriation Systemdepends on the ‘incurred danger test’remaining objective. We would createanomalies if we were to confuse a state ofreadiness, or presence in a formerenemy’s territory, with the real andtangible risks of facing an armed andhostile enemy.

The Government therefore does notaccept the Committee’s recommendationsfor an extension of Qualifying Service forcertain service in Northern Australiaduring World War II and in the BritishCommonwealth Occupational Forces.

The Government accepts therecommendation to extend QualifyingService to aircrew of No 2 SquadronRAAF, who served on the Malay-Thaiborder between 1962 and 1966.

The Government also accepts theCommittee’s recommendation to extendOperational Service, the equivalent ofNon-Warlike Service, to members of theRAAF directly involved in the Berlin Airlift.

The Government also accepts thatOperational Service eligibility be extendedwherever Qualifying Service has beenrecognised.

The immediate beneficiaries of thisdecision are the small group of

minesweeping personnel who haveQualifying Service under the VEA but notOperational Service.

Extension of Operational Service will givethem access to the disability pension.

The Government accepts the Committee’srecommendation to extend an ex-gratiapayment of $25,000 to all survivingprisoners of war held captive during theKorean War, or their widows or widowers,who were alive on 1 July 2003. This is inrecognition of the extremely inhumaneconditions they endured.

The Government has rejected theCommittee’s recommendations relating toBritish Commonwealth and Allied (BCAL)Veterans. These recommendations wouldsignificantly change the firmly establishedprinciple that each BCAL countrymaintains responsibility for its ownveterans.

The recommendations also would extendbenefits to BCAL veterans which are notavailable to some Australian veterans withsimilar service. Further, acceptance wouldgrant Qualifying Service to some BCALveterans without them meeting theincurred danger test required of otherBCAL veterans.

The Government will respond positively tothe needs of those affected by the BritishAtomic Tests programme when theoutcomes of the Australian Participants inthe British Nuclear Test Programme -Cancer Incidence and Mortality Study, arepublished later in the year.

The Government also recognises thattoday’s military forces are concerned thatpersonnel deployed on operations to meetthe Government’s national securityobjectives have such service properlyclassified. Such classification needs to bebased on the extent to which ADFmembers are exposed to danger.

Hazardous training for any Defencepersonnel is best remunerated in basepay and conditions and serviceallowances.

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The Government is reviewing the criteriafor determining classification of currentservice and deployments.

Access to Gold Card

The Clarke Committee made 10recommendations in relation to access tothe Gold Card. The Gold Card is highlyvalued by the veteran community, offeringaccess to free comprehensive health carefor eligible veterans, including medical andhospital treatment, allied health care,community nursing and support at homethrough Veterans’ Home Care. Currently,more than 273,000 members of theveteran community hold a Gold Card.

Many veterans have received the GoldCard on the basis of their health needs asdetermined by their level of disability. Forexample, the Gold Card is issued to allveterans receiving the Disability Pensionat or above 100 per cent of the GeneralRate, including the TPI pension, theIntermediate Rate and the ExtremeDisablement Adjustment.

The Gold Card also is provided to aveteran who receives the DisabilityPension at or above 50 per cent of theGeneral Rate, and who also is receivingany amount of the Service Pension.

As a result of initiatives in 1999 and 2002,the Government has extended the GoldCard to all Australian veterans andmariners aged 70 years or over who haveQualifying or Warlike Service from anyconflict.

Ex-prisoners of war also receive the GoldCard, as do war widows and widowers,who are compensated for the loss of theirpartners as a result of their service.

The Committee received manysubmissions urging further extension ofthe Gold Card to different groups. TheGovernment has accepted all of theCommittee’s recommendations that therebe no further extensions of the Gold Card.

The Government has already rejected theCommittee’s recommendation that future

Gold Card entitlement be means tested. Abenefit granted in recognition of incurringdanger from an enemy should notdiscriminate among veterans on the basisof wealth or income.

TPI and Disability Benefits

A range of submissions addressed theadequacy of benefits and supportavailable to Totally & PermanentlyIncapacitated and other veteran disabilitybenefit recipients.

There has been considerable publicquestioning of the merits of theCommittee’s recommendations for afundamental restructuring of TPI andveteran disability benefits.

The Government does not accept themodel favoured by the Committee butinstead addresses the key issues ofconcern to veterans, that is, the treatmentof the disability pension at Centrelink andindexation arrangements.

From September this year, we shallintroduce a Defence Force IncomeSupport Allowance, to be paid by theDepartment of Veterans’ Affairs to eligibleveterans receiving income support fromCentrelink.

The allowance will eliminate the differencebetween a veteran’s Centrelink benefitand the amount they would receive if theirdisability pension was assessed under theVeterans’ Entitlements Act.

More than 19,000 disability pensionerswho receive their income support fromCentrelink will benefit from this changeand on average will receive an additional$40 a fortnight. However, veterans inneed, such as a single TPI recipient on anaged pension with no other income, will beeligible to receive an additional $257.60 afortnight. This would take the total amountof financial assistance provided throughincome support and the TPI pension to asingle veteran who earns no other incometo $1,215.40 a fortnight.

Questions & Answers

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This figure does not include the value ofpharmaceutical and other allowances, northe cost of health care provided by theGold Card.

On adequacy, for those with QualifyingService, the Clarke Committee concludedthat the TPI benefit package was broadlyadequate over the veteran’s lifetime. Thetotal benefit of TPI pension, combined withmaximum service pension, currentlyequates to 91 per cent of post-tax MaleTotal Average Weekly Earnings (MTAWE)for a single veteran and 109 per cent for acouple.

Of course, this will now also be true forthose veterans without Qualifying Servicewho receive income support fromCentrelink, who will now receive theDefence Force Income SupportAllowance.

From March 2004 the portion of disabilitypension above the general rate will beindexed to MTAWE in a similar fashion tothe service pension. The Governmentconsiders it fair that those veterans whocan no longer work because of theirservice related disabilities have theeconomic loss component of theirdisability pension maintained in line with awage index.

Rehabilitation

The Committee emphasised theimportance of rehabilitation for veteranswith accepted disabilities. However, theGovernment rejects the recommendationsfor compulsory rehabilitation under theVEA. No veteran will be forced toparticipate in rehabilitation under the VEA.

However, the Government, will continue topromote existing programs, including theVeterans’ Vocational RehabilitationProgram, Heart Health and the Men’sHealth Peer Education Project, whichhave been warmly welcomed by manyveterans.

The Military Rehabilitation andCompensation Bills before the Senateinclude a strong rehabilitation focus. This

emphasis ensures that after injury orillness people are assisted to pursue alloptions which may assist them and theirfamilies.

The guidelines for rehabilitation under thenew Scheme will be developed in closeconsultation with veteran and defenceforce organisations. The Government willremain open to new ideas that the ex-service community may wish to suggestthat would assist those who may wish topursue rehabilitation under the VEA.

Other measures

Some 11,000 war widows and widowerswill receive an increase in their incomesupport payments as a result of theGovernment’s decision to pay rentassistance in addition to the ceiling rate ofincome support supplement.

This will mean up to an additional $94.40a fortnight for eligible war widows andbuilds on the Government’s action in liftingthe ceiling rate of the income supportsupplement in 2002.

The Committee’s recommendation for anincreased contribution towards funeralcosts has been accepted. The maximumfuneral benefit will be increased from $572to $1,000. Our Government hascommitted an additional $267 million overthe next five years to address concernsraised by the veteran community duringthe review.

I take this opportunity to again thank thosemembers of the ex-service community fortheir important contribution to this reviewprocess.

Questions &AnswersThe VRB encourages applicants and theirrepresentatives to contact their local VRBRegistrar to discuss any issues relating totheir cases. If you have any questions

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particularly concerning the Veterans’Entitlements Act 1986 (the VEA) you cantelephone the NSW Registrar, PeterGodwin, on 1300 135 574 from anywherein Australia at the cost of a local call.

Service in ships – style and grammar

Question: What is the correct way tospeak and write about service in ships?

Answer: In many official navaldocuments, ships’ names are oftenwritten entirely in upper case. However,this has been used as a functionalapproach for clarity, because it has beenused in handwriting or with outdatedtechnology (such as typewriters), ratherthan as an appropriate style forpublishing purposes.

The correct publishing style is to write theship’s name in italics, only capitalisingthe first letter of each word in the ship’sname. However, any abbreviationspreceding the name must be in uppercase and not italicised, for example,HMAS Matthew Flinders.

Never put the definite article, ‘the’, before‘HMAS’, because it does not make senseto say ‘the Her Majesty’s Australian Ship’.One can say ‘they served in theMelbourne’ or ‘they served in HMASMelbourne’, but not ‘they served in theHMAS Melbourne’.

It is also important to note that a personmay serve or be ‘in’ a ship or a personmay ‘go aboard’ or ‘go on board’ a ship,but a person is never ‘on’ a ship.

Continuing a deceased person’s claim

Question: Who can continue a deceasedperson’s claim for pension?

Answer: Under section 126 of the VEA,the legal personal representative (LPR) ofa deceased claimant can take whateveraction the claimant could have taken withrespect to a claim for pension had theclaimant not died (such as applying to theVRB). The LPR is either:• the executor or administrator of the

deceased’s estate; or

• the Public Trustee.

In some cases, the LPR might not beinterested in continuing the claim, butsomeone else, such as the widow or achild of the claimant, might wish to do so.Section 126 permits the RepatriationCommission to approve someone else tocontinue the claim, but not without firstapproaching the LPR.

There is a very good reason for thisrestriction. If the LPR is not asked whetherhe or she wishes to continue the claim andthe Commission purports to approvesomeone else to do so, that other personcould be regarded as an ‘executor de sontort’ or an ‘intermeddler’ in the estate. Suchaction could result in substantial adverseconsequences for that person, includingbeing forced to take on the role ofadministrator of the entire estate.

In order that this does not occur, s.126(3)provides that the Commission cannotapprove a person to continue the claimunless it is satisfied that the person hasnotified the LPR of the LPR’s right tocontinue the claim and that the LPR haseither refused, or failed within areasonable time, to take any action inrespect of the claim. Only if theCommission is so satisfied, can it approvethe other person to continue the claim.(Note that the Commission neverapproves an LPR and the approvedperson does not become the LPR. Theyare merely ‘a person approved by theCommission’ for the purpose of the claim.)

Medical discharge and eligibility for‘defence service’

Question: If a person is discharged formedical reasons between 7 December1972 and 6 April 1994 before they havecompleted 3 years effective full-timeservice, then their service after7 December 1972 is treated as defenceservice. But, does a medical dischargeafter 6 April 1994 give a person ‘defenceservice’ for their service before that date?

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Answer: No. Consider a hypotheticalcase of two soldiers, Brenda and Barrywho both enlisted on 4 May 1992. Theycontinued to serve together and wereboth badly injured in the same motorvehicle accident in early 1994. Brenda isdischarged because of her injuries on31 March 1994 and Barry is dischargedbecause of his injuries on 11 April 1994.

Neither Brenda or Barry have completed3 years effective full-time service, and sounless they are discharged for medicalreasons, they will not be taken to haverendered ‘defence service’.

The ‘terminating date’ for defence serviceis 7 April 1994, the date ofCommencement of the MilitaryCompensation Act 1994. That is, noservice on or after that date is taken to be‘defence service’ unless the person hascontinually served on continuous full-timeservice since before 22 May 1986 (thecommencement date of the VEA).

As Brenda’s service ceased before7 April 1994, the terminating date has norelevance to her situation. She fits withins 69(1)(d), which provides that if she wasserving under an engagement to servefor at least 3 years and she wasdischarged on medical grounds beforethe 3 years were completed, then herservice is regarded as ‘defence service’.(It should be noted that the Federal Court(Whiteman v. Secretary, DVA (1996))has held that provided medical groundswere the real reason for beingdischarged, it does not matter that theformal reasons given by the DefenceForce stated some other ground.)

But Barry is in a different situation. Hewas not discharged until after theterminating date. He is caught by theprovisions of s 69(3)(b), which says, ineffect, that if a person renderedcontinuous full-time service after 22 May1986 and before 7 April 1994; but hadnot rendered continuous full-time servicesince immediately before 22 May 1986,s 69(1) does not apply to them (that is,

they cannot be taken to be rendering any‘defence service’) unless they havecompleted 3 years effective full-timeservice before 7 April 1994 or they weredischarged on medical grounds before7 April 1994.

In this case, Barry was discharged onmedical grounds after 7 April 1994, andso subsection 69(1) cannot apply to him,and he cannot be taken to have renderedany ‘defence service’.

‘L of C’

Question: What does ‘L of C’ stand for inWorld War 2 Army service documents?

Answer: ‘L of C’ means ‘Line ofCommunications’. It is not a place but asystem of communications from the rearedge of the battlefield or area ofoperations back to the main supplyareas. A signals unit, for example couldbe stretched over the whole of the L of Csupporting a variety of other units.

An entry, ‘NQ L of C’, indicates that theveteran’s unit was somewhere within aline of communications stretching fromthe HQ located in the North Queenslandregion to the front lines, which mighthave been in New Guinea. Similarly,‘SA L of C’ indicates a line ofcommunications stretching from Adelaideall the way to Darwin. So if a veteran’sunit was within those Lines ofCommunication it may well have beenlocated in Darwin or Alice Springs, andnot in South Australia at all.

Administrative Appeals Tribunal

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AdministrativeAppealsTribunal

Re J P Elson and RepatriationCommission

Sassella

[2004] AATA 1814 January 2004

War Widows pension – death bymalignant neoplasm of colorectum– material contribution fromoperational service to theconsumption of quantity of alcohol

Mrs Elson’s claim for pension had beenrefused previously by the Tribunal on theground that there was no material raisedthat linked the veteran’s alcoholconsumption with a war-caused alcoholhabit. On appeal to the Federal Court theparties agreed that the matter be remittedto the Tribunal to be reheard on the basisthat the tribunal had erred in law insaying that factor 5(c) in SoP 58 of 2002was not a factor to which ‘materialcontribution’ applied.

Factor 5(c) of SoP 58 of 2002 required aveteran to have consumed at least 250kilograms of alcohol (contained withinalcoholic drinks) within any 25 yearperiod within the 40 years immediatelybefore the clinical onset of malignantneoplasm of the colon. The previousTribunal had assumed that compliancewith the SoP concerning alcohol abuse ordependence was necessary in order tomeet this factor. On remittal, the Tribunalnoted that having alcohol abuse ordependence accepted as a war-caused

condition would only put forward a strongcontention for meeting the above criteria.However, it was not a necessity: aveteran may have consumed the quantityof alcohol within the time frame and atthe appropriate time without having metthese conditions. The Tribunal noted thatthere is no reference made to the terms‘alcohol abuse’ or ‘alcohol dependence’in the SoP for malignant neoplasm of thecolon.

The Tribunal relied on the principle inKattenberg (2002) 18 VeRBosity 41,which held that service only had to makea significant contribution to the veteran’sdrinking, it did not have to be the solecontributing factor. The Tribunal noted:

[27] ... Whatever the quantity ofalcohol consumed at that time, solong as it is suggested to be at anincreased rate compared to beforeoperational service, and so long asthat increase is attributable to theconditions of service, and so long asthat increased consumption seemson the material linked to subsequentconsumption necessary to satisfy therequirement for a total of 250kilograms of alcohol consumed, thens 196(14) is satisfied.

To support the hypothesis, evidence waspresented by Mr O’Keefe whoresearched alcohol consumption bytroops in Vietnam at the time Mr Elsonwas there. He said that consumption wasextremely heavy; that the positionMr Elson held as a military policemanwas more conducive to alcohol problems;and these men turned to drink for solace.It was also noted by one informant whoserved with Mr Elson that he had adrinking problem.

Mrs Elson gave evidence that herhusband had told her his drinkingincreased dramatically while in Vietnamand continued on his return. She statedthat Mr Elson was a social drinker beforehis operational service and hadcommenced drinking two drinks a night in

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World War 2 during his service. Once inVietnam his drinks increased to six dailyand continued at about that ratethroughout their marriage.

The Tribunal found that the materialsupported the hypothesis that Mr Elsonbegan drinking in Vietnam at a level thatcould not be described as merely ‘socialdrinking’, and that this material wassufficient to point to a connectionbetween Mr Elson’s service in Vietnam andan increase in his alcohol consumption.

Formal decision

The Tribunal set aside the decision underreview and determined that the veteran’sdeath was war-caused.

Re W H Jenkin and RepatriationCommission

Cunningham

[2004] AATA 19827 February 2004

Jurisdiction – meaning of‘reviewable decision’ – nojurisdiction to determine whethercirrhosis of the liver is war-caused

This decision resulted from a directionshearing at which the applicant sought toargue that the Tribunal could consider adisease that had not been determined bythe Repatriation Commission or the VRB.The Commission contended that as therehad been no earlier decision regardingcirrhosis of the liver there was noreviewable decision and the only matterfor review was the Commission’sdecision that rejected Mr Jenkin’s claimfor malignant neoplasm of the bile ductas being war-caused.

It was argued for Mr Jenkin that thecirrhosis of the liver was a link in thechain to determine if malignant neoplasmof the bile duct was war-caused and themain question for determination was

whether he was suffering from cirrhosisof the liver before the clinical onset of themalignant neoplasm of the bile duct.

Staffieri v Commonwealth (1986) wasreferred to concerning the extent of thetribunal powers when conducting ahearing de novo and the fact that it wasable to take into account new evidencethat was not before the original decision-maker. The Tribunal said:

The question for the determination ofthe Tribunal is whether that decision[of the decision-maker] was thecorrect or preferable one on thematerial before the Tribunal.

We may not be able to reach thecorrect or preferable decision on thematerial before us if we are bound toaccept the findings of fact made bythe decision-maker. We do notaccept that the power of the Tribunalcan be fettered so as to require it toconsider only one aspect of thedetermination under review.

But as stated in the text, Veterans’Entitlements Law by Creyke andSutherland, the Tribunal’s jurisdictionis limited by the matters referred to inthe original claim or the applicationfor review to the Board or Tribunal.

However, de novo review does notmean that the Tribunal has a rovingbrief and can consider for the firsttime a claim for incapacity in respectof an injury or disease which has notpreviously been considered by theCommission or the Board.

A similar issue also arose in the FederalCourt case of Stafford v RepatriationCommission (1993) which was upheld bythe Full Federal Court on appeal.Referring to that case, the Tribunal notedthat the Act provided for:

a comprehensive statutory frameworkfor review of Commission decisionsby the VRB, at first instance and, inturn, by the Tribunal. Theconsideration by the Tribunal ofparticular issues of entitlement

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expressly not before the VRB wouldhave the effect of circumventing achain in the review process. Such adevelopment is clearly contrary to thepurpose and intent of the legislation.

Mr Jenkin’s claim, which was subject toreview by the Commission and the VRB,was malignant neoplasm of the bile ductand it was clear from the Commission’sdecision that it was not asked to considerthe condition of cirrhosis of the liver and itwas therefore not subject to a review bythe VRB.

The Tribunal determined that it only hadjurisdiction to review the applicant’scondition of malignant neoplasm of thebile duct and that it lacked authority tomake any determination in relation toMr Jenkin’s cirrhosis of the liver.

In other words, while the Tribunal couldconsider whether the material before itpointed to the veterans’ cirrhosis of theliver being connected to his service aspart of hypothesis of a connection fromservice to malignant neoplasm of the bileduct, it had no power to determinewhether cirrhosis of the liver was a war-caused disease because no claim forpension had been made in respect of thatdisease.

Formal decision

The Tribunal held that it could notdetermine whether cirrhosis of the liverwas a war-caused disease.

Re K D Johnson andVeterans’ Review Board

Jarvis

[2004] AATA 24210 March 2004

Dismissal of AAT application asfrivolous or vexatious – nojurisdiction to reopen previousapplication – dismissal of VRBapplication

In 1996, Mr Johnson applied for review tothe VRB. After the failure of Mr Johnson’srepresentative to respond to a particularnotice, the application was dismissed in1999 under s 155AB(5) of the VEA by theRegistrar who was acting as delegate ofthe Principal Member.

In 2000, the Tribunal affirmed thedecision to dismiss the VRB application(see (2000) 16 VeRBosity 34). MrJohnson appealed this to the FederalCourt, but shortly thereafter withdrew thatappeal. However, in 2002, he applied tothe Federal Court for judicial review ofthe Registrar’s actions. This applicationwas dismissed (see (2002) 18 VeRBosity114), as was a further appeal to the FullCourt (see (2003) 19 VeRBosity 52).

In 2003, Mr Johnson wrote to thePrincipal Member asking him to reinstatehis VRB application. This was refused.

Mr Johnson then applied to the Tribunalintending to reopen the earlier AATapplication that had been finalised in2000. Upon receiving notice of the newAAT application, the VRB asked theTribunal to dismiss it on the ground that itwas frivolous or vexatious.

Mr Johnson argued that the 2000 AATmatter should be reopened because hethought that the Registrar did not havethe delegation to dismiss the VRBapplication because the instrument ofdelegation giving him authority to dismisscases had not been interpreted correctly.

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The relevant instrument of delegation inrelation to these proceedings was dated17 December 1992. Under that instrumentthe previous Principal Member,Mr Gallagher delegated to:

those persons who, from time to time,hold a position designated asRegistrar of the Veterans’ ReviewBoard, my powers under sections155AA and 155AB of that Act,provided that such powers shall onlybe exercised by those persons inaccordance with directions issued byme from time to time.

On 1 March 1999, the previous dismissalprocedures were replaced by newprocedures issued by the new PrincipalMember, Brigadier Rolfe. A newdelegation was not issued to Registrarsuntil 15 January 2001. Mr Johnsoncontended that the new proceduresrequired Registrars to sign relevantnotices and correspondence as a‘Delegate of the Principal Member’whereas that was not a requirementunder the old procedures. He noted theletter he received on 11 March 1999 wassigned as ‘Delegate of the PrincipalMember’ so that when the Registrardismissed the application he was actingpursuant to the new procedures and wasin breach of the proviso to the delegationby Mr Gallagher that the Registrar’sdelegated powers could only beexercised in accordance with directionsissued ‘by me from time to time’.

The issues raised in the previousproceeding were the adequacy of theprior notice issued by the Registrar andthe proper construction of a responsewhich was sent to the Registrar byMr Johnson’s agent. Mr Topperwien forthe respondent conceded thatMr Johnson’s argument that the Registrarwas not authorised to dismiss hisapplication was not raised or determinedin the Tribunal hearing in 2000.

Findings

The Tribunal held that it had nojurisdiction to re-visit a decision basedon a new argument that was not putbefore the Tribunal in the earlierproceedings and the Tribunal consideredit could not reopen the previousdetermination in the present proceedings.

The Tribunal noted that all deficiencieswith the delegation notice had beencured. Mr Johnson had not suggestedthe new delegation instrument issued byBrigadier Rolfe was invalid and it wasalso noted that his appeal would havehad to have been dismissed under eitherthe old or new delegation notice becauseof Mr Johnson’s representative’s non-compliance with the notice in February1999.

The argument by Mr Johnson as to theproper interpretation of the instrument ofdelegation and the use of the words ‘byme’ was not decided due to theconclusion that the Tribunal would notreopen the application.

Formal decision

The Tribunal dismissed the applicationon the ground that it was frivolous orvexatious and further ordered that theapplicant not make a subsequentapplication to the Tribunal of a kind thatwould seek to have the effect of:reinstating the application to the Tribunalin matter number S1999/234; or seekinga review by the Tribunal of the actiontaken by the Registrar of the VRB on11 March 1999, under s 155AB(5) of theVEA, in dismissing the applicationpreviously made by the applicant to theBoard.

Ed: Mr Johnson has appealed thisdecision to the Federal Court.

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Federal Courtof Australia

Roscoe v RepatriationCommission

Gray J

[2003] FCA 156823 December 2003

Entitlement – whether veteranrendered operational service – inship off WA coast in WW2 – ‘kindof death’ suffered by veteran

This case was concerned with twojurisdictional fact issues affecting therelevant law to be applied by theTribunal: (1) the nature of the veteran’seligible service; and (2) the ‘kind of death’suffered by the veteran. The Tribunal’sdecision whether or not the veteran hadrendered operational service in WorldWar 2 determined the standard of proofto be applied; and the ‘kind of death’determined which, if any, Statement ofPrinciples had to be considered.

Nature of the veteran’s eligible service

Section 6A of the VEA provides that aperson is taken to have rendered‘operational service’ if he or she rendered‘continuous full-time service outsideAustralia’ during World War 2, or if theperson rendered service that should betreated as being service in ‘actual combatagainst the enemy’.

Mr Roscoe served in the RAAF and,apart from a voyage in MV Koolinda inAugust 1943, he did not leave Australiaduring his service. That voyage, whichtook Mr Roscoe from Fremantle toBroome as part of a journey from Perth toCape Lévêque, WA, for the purpose of

working at a radar tracking station,involved going outside Australianterritorial waters. (Cape Lévêque is about200 km north-east of Broome.) The Courtdescribed the effect of the evidence fromAssociate Professor McCarthy concerningthis voyage, as follows:

[15] ... The Koolinda was a standardcommercial passenger and cargovessel, equipped with defensiveweapons. As a coastal ship, it wouldnot have gone far out to sea. It wasmost unlikely that a militarypassenger in transit would have beenassigned to duty on a gun station.Special training was necessary toperform this duty, which wouldnormally be performed by the crew ofthe ship. There was no record ofenemy submarines in the area. Ifthere had been such a threateningevent, it would have been recorded inthe Operations Record Book of theveteran’s unit. No such event wasrecorded during the relevant period.German, Japanese and Italiansubmarines operated in the IndianOcean during 1943, but mainly off theSouth African coast, some 5000 airmiles from the Western Australiancoast. The closest sinking of a ship tothe Western Australian coast wasmore than 1000 miles from thatcoast. There was no evidence ofItalian submarines, which were cargocarriers and not attack craft, near theWestern Australian coast. TheGerman submarines were based atPenang and it was most unlikely thatthey would have approached theWestern Australian coast. TheJapanese submarines operatedlargely off Sri Lanka (then known asCeylon) and there was no evidencethat they ventured into WesternAustralian waters. The Koolinda wasnot threatened by attack fromsubmarines during the relevantperiod.

[16] On 16 August 1943, Broome wasattacked from the air, with no record

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of casualties. This was 10 daysbefore the veteran embarked on theKoolinda. On 15 September 1943,Onslow was attacked by bombers,with no casualties. At this time, theveteran was at Cape Lévêque, morethan 1000 kilometres from Onslow.The overwhelming majority of aircrafttracked by the veteran’s unit at CapeLévêque were identified as friendly.No trackings were recorded until May1944. In that month, eightunidentified aircraft were tracked, butthere is no evidence that they wereenemy aircraft. In June 1944, fiveunidentified aircraft were tracked, butthere was no evidence or indicationthat the radar station was about tobecome the object of an attack. TheOperations Record Book for CapeNaturaliste recorded that aircraftwere tracked, both friendly andunidentified. It was almost impossiblefor the unidentified aircraft to havebeen Japanese. There was a reportof suspected Japanese activity off theWestern Australian coast in April1943, four months before the veteransailed on the Koolinda, but thereports were demonstrated to befalse.

The Court referred to RepatriationCommission v Kohn (1989) 5 VeRBosity108 and Proctor v RepatriationCommission (1999) 15 VeRBosity 13,both of which cases considered themeaning of ‘continuous full-time serviceoutside Australia’ and held that thedecision-maker had to consider theessential character of the relevantservice to decide whether it could beproperly characterised as service outsideAustralia or if being outside Australia wasmerely incidental to the characterisationof the voyage as being a transit from oneplace in Australia to another.

The Tribunal had mentioned Kohn’s caseand found that the veteran did notengage in actual combat against theenemy (a question that Kohn was not

concerned with) and concluded that hehad not rendered operational service.

In Kohn’s case, it was held that theveteran had not rendered operationalservice as he was merely a passenger ona voyage from Townsville to Cairns thatwent outside Australia. In Proctor’s case,it was held that the veteran had renderedoperational service as he was not simplya passenger but had certain duties toperform and the Court considered itimportant that there was a risk ofJapanese submarine attack during thevoyage.

In light of the fact that the Tribunal hadaccepted Associate Professor McCarthy’sevidence, the Court said,

[38] ... it would have been merespeculation to have found that theveteran was actively engaged in thedefence of the ship, or that the shipwas subject to any threat from enemyaircraft or submarines. It wascertainly open to the Tribunal to findthat the voyage was a mere transitbetween two postings withinAustralia, and that the essentialcharacter of the veteran’s servicewas that it did not involve serviceoutside Australia. There is nosuggestion that the Tribunalmisunderstood the task that it had toperform. There is therefore noquestion of law involved. Theconclusion that the veteran did notrender operational service was onefor the Tribunal.

The medical issues

The Tribunal found that Mr Roscoe haddied from leiomyosarcoma (a cancer ofsmooth muscle and connective tissue)that had metastasised to the liver andlung. One medical witness gave evidencethat it was possible that one of the lunglesions might have been a primary lesionand thus it would be possible to havelinked that lesion with the veteran’sservice-related smoking. No medicalexperts were able to identify the primary

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site, but it was said that the primary sitewas irrelevant as the soft tissue sarcomaStatement of Principles would haveapplied wherever the site was, and thatthe lung and liver cancer Statements ofPrinciples were applicable only to primarytumours.

The Court held that the Tribunal hadproperly decided to its reasonablesatisfaction that the veteran died fromleiomyosarcoma and that, as the Tribunalhad not found that the primary site was inthe bronchus or lung, it could notconsider the Statement of Principles formalignant neoplasm of the lung. Insteadthe Tribunal had to (and did) consider theStatement of Principles for soft tissuesarcoma.

However, it was at this point that theTribunal made a legal error. Instead ofapplying section 120B (which relates tonon-operational eligible war service), theTribunal purported to apply section 120A,which relates to operational service,notwithstanding that it had found theveteran had not rendered operationalservice. But as the standard of proofapplicable to section 120A is moregenerous to the claimant than thatapplying under section 120B, and theTribunal found that Mrs Roscoe could notsucceed under the more generousprovisions, the effect of the error was ofno consequence, and did not affect theultimate result in the case. The Court said:

[44] ... If there did not exist areasonable hypothesis of such aconnection, it is impossible to seehow the Tribunal could have foundmore probable than not that theconnection existed.

Formal decision

The Court dismissed the appeal andawarded costs against Mrs Roscoe.

Van Ewijk v RepatriationCommission

Stone J

[2004] FCA 1730 January 2004

Assessment – special rate –second limb of s 24(1)(c) – whetherceased to engage in work for someother reason (s 24(2)(a))

Mr Van Ewijk had a number of war-caused disabilities, including posttraumatic stress disorder (PTSD), gastro-oesophageal reflux disease, alcoholabuse and dependence, diabetesmellitus, and ischaemic heart disease.He was a National Serviceman who, afterhis discharge upon returning fromVietnam, worked with BHP as a marineengineer until he was dismissed becauseof excessive drinking in 1977.

In 1978-79 he worked in Ireland as amarine engineer. In 1980-81 he was apartner in a fishing business, mainlydoing marine engineering work. He thenworked as a shipway attendant in NewGuinea for six months. From 1983 to1987 he again worked as a marineengineer in Brisbane until he was maderedundant. He then worked as a marineengineer with Pioneer Dredging from1988 until 1991. In 1991, he injured hisback at work and has not worked since.He received workers compensationpayments from 1991 to 1993.

He made attempts to start his ownbusiness, but was unable to do so eitherbecause the ventures contemplated werenot feasible or he was unable to raise thenecessary capital.

At the Tribunal, it was conceded that hemet s 24(1)(a) and (b). That is, incapacityfrom his war-caused disabilities on theirown rendered him incapable of workingfor more than 8 hours a week in any kindof work for which he had skills,

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experience, or expertise. The importantissue was whether he could satisfys 24(1)(c). Mr Van Ewijk contended that,though he had lost his job at Pioneer in1991 because of his non-war-causedback injury, his present inability toundertake work was caused by hisPTSD. The Commission had contendedthat his back condition, lack of skills,tightness of the labour market and lack ofbusiness capital were relevant factors.

Medical evidence indicated that whileMr Van Ewijk could not go back to themarine engineering work he had beendoing because of his back injury, thatinjury would not prevent him doing lighterwork for 4 hours a day and that it was hiswar-caused disabilities that now totallyincapacitated him now for work.

The Tribunal found that Mr Van Ewijk hadceased work at BHP and in the fishingbusiness because of his war-causedalcoholism, but that he had ceased hislater employment for reasons unrelatedto his war-caused disabilities, namely, hisdislike of the expatriate community inNew Guinea, his failure to obtain capitalto begin another business, and his backinjury. Thus the Tribunal found that theveteran had ‘ceased to engage inremunerative work for reasons other thanhis ... incapacity from war-caused ...disease’.

This test, which appears in s 24(2)(a),when it applies, deems the second limbof s 24(1)(c), the ‘loss of salary, wages,or earnings’ test, not to be met. (The firstlimb of s24(1)(c) is whether the veteran isprevented from continuing to undertakethe kind of work he had been undertakingby reason of incapacity from war-causedinjury or disease alone.)

On appeal, counsel for Mr Van Ewijk didnot argue that the Tribunal had wronglyapplied the law, but that the Tribunalreached a conclusion that was not openand was against the weight of theevidence.

The Court noted that

[15] Both limbs of s 24(1)(c) must besatisfied if the section is to apply to aveteran. In this case the Tribunaldecided that the second limb ofs 24(1)(c), read in conjunction withs 24(2)(a) was not satisfied. TheTribunal decided that the applicantcould not be taken as suffering a lossof salary or wages or earnings on hisown account as it was not satisfiedthat he had ceased to engage inremunerative work because of hiswar-caused disabilities. ...

[24] Counsel for the respondentaccepted that ceasing to engage inremunerative work is wider thanceasing to do a particular job butsubmitted that the reason why aveteran left his or her last job isnonetheless relevant. I accept thatthis is so. In this case however, theTribunal also based its decision onthe applicant’s own evidence as towhy he was not able to set up hisown business, namely his inability tosecure capital for the purpose. TheTribunal also pointed to theapplicant’s evidence as to why he lefthis job in New Guinea, namely thathe did not like the way of life.

[25] ... the claim that there was noevidence to support the Tribunal’sconclusion or that no reasonableTribunal could have come to thatconclusion cannot be sustained. TheTribunal undertook the task requiredof it; it considered the evidencebefore it and, on the basis of thatevidence, formed its own view of themerits of the ... claim. It is not to thepoint that another person might havedecided the matter differently. ...

Formal decision

The Court dismissed the appeal andawarded costs against Mr Van Ewijk.

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Pritchard v RepatriationCommission

Kiefel J

[2004] FCA 443 February 2004

Assessment – special rate – onusof proof – likelihood of potentialemployers to make workplacemodifications that would enable aperson with the veteran’s non-war-caused disability to undertake thekind of work the veteran had beenundertaking

The Tribunal had found that Mr Pritchardsatisfied all the relevant requirements ofs 24 except s 24(1)(c), namely that theveteran was prevented from continuing toundertake remunerative work by reasononly of his war-caused injuries ordiseases.

Mr Pritchard had a number of service-related disabilities, which includedmuscle contraction headaches. He gaveevidence that he ceased work because ofthese headaches. He had worked as ajanitor and groundsmen at a schoolwhere he had a very understandingemployer who was aware of hisheadaches. A few days after ceasingemployment with the school he suffereda toe injury which subsequentlydeveloped complications and led to anamputation below his right knee. Thecomplications were a result of hisdiabetes a non service-related disability.

An occupation therapist gave evidencethat due to this injury the applicant wouldbe slow to carry out the duties he hadformerly undertaken and would tire veryeasily. To gain employment in the futurehe would need a considerate employerwho would be willing to makemodifications to equipment.

On appeal, it was claimed that theTribunal had made the following errors oflaw:

1. The Tribunal placed an onus of proofupon the applicant to show that anemployer would bear the cost ofmodifications and would tolerate hisworking at a slower pace.

2. The Tribunal failed to take intoaccount, as a relevant consideration,that there was evidence of a tolerantemployer who would assist theapplicant in his employment.

3. There was no evidence supporting aconclusion that there were noemployers who would be tolerant andmake the necessary modifications.

The court rejected these argumentsstating:

[16] The second and third groundsclearly relate to the Tribunal’s view ofthe evidence. The applicant’scontention is that there was evidenceof a benevolent employer in theschool principal. The contention is inany event incorrect. All that theevidence showed was that theprincipal was prepared to acceptsome limitations on the applicant, along-term employee, carrying out hisduties caused by the symptomscaused by the stress disorder,particularly the headaches. It doesnot furnish evidence that there arelikely to be employers who wouldmake the necessary modifications,arrange for further assistance to beprovided to the applicant in thecarrying out of some tasks and whowould tolerate the limitations on hisability to carry out work as agroundsman janitor caused by hisamputation.

[17] The Tribunal did not impermissiblyplace an onus of proof on theappellant to disprove a fact. Thisground is in reality a challenge to theTribunal’s finding of fact on the issuewhether the applicant’s non-service-

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related disabilities should be seen asaffecting his ability to undertake workin his former capacity. The Tribunalwas satisfied that these disabilitiesrestricted his ability to undertake thatwork. It was not satisfied that it waslikely that an employer would makethe modifications and theconcessions necessary to negativethis effect. The Tribunal was clearlyentitled to come to that conclusion onthe evidence. The applicant’sargument must be that the Tribunalshould not have acted upon the basisthat there was no evidence. Thestarting point for that consideration isnot however that some suchevidence existed. Faced with the66 year old veteran with multiplehealth problems and a disabilityrequiring much more of an employerthan might reasonably be expected,the Tribunal was right to requiresome persuasion as to the scenariothe applicant was advancing.

[18] The Tribunal was required bys 24(1)(c) to take into account anyfactor that plays a part or contributesto a veteran being prevented fromcontinuing to engage in remunerativework: Repatriation Commission vHendy [2002] FCAFC 424 at [37]. Atthe point where the applicant ceasedwork it might have been said that hisservice-related disorder preventedhim from continuing, although therewas also evidence noted by theTribunal that his diabetes was eventhen playing a part in the difficultieshe was labouring under. In any event,as the Full Court observed in Hendy,when a period of time has elapsedafter a veteran ceases remunerativework and before the commencementof the assessment period, factorswhich have then arisen must betaken into account. That is theapproach which was taken by theTribunal. Once it made the findingsthat the applicant’s amputation wouldprevent him from undertaking some

tasks and restrict his ability to carryout his former work, factors sufficientto displace his case for a pension ata special rate were present.

Formal decision

The court dismissed the appeal andawarded costs against Mr Pritchard.

Repatriation Commission vRobertson

Beaumont J

[2004] FCA 1735 March 2004

Qualifying service – Gold Cardeligibility – member of landingparty accepting local Japanesesurrenders – whether ‘incurreddanger from hostile forces of theenemy’ at a time veteran wasengaged in ‘operations against theenemy’

The Commission appealed to the FederalCourt against a decision of the AAT thatMr Robertson rendered qualifyingservice. Mr Robertson had relied uponhis seagoing service towards the end ofthe Second World War outside thecoastal waters of Australia, in the Pacific.

The AAT had noted there were threecomponents of s 7A(1)(a)(i): serviceduring the ‘period of hostilities’(this wasnot disputed), that such service tookplace in operations ‘against the enemy’and that the person ‘incurred danger fromhostile forces’ of the enemy.

In accepting that Mr Robertson servicewas in Military operations ‘against theenemy’ the AAT noted that he had beenin a climate during Operation Talaudwhere there was no evidence as to if therelevant Japanese forces had accepteddirection to surrender and that oneorganised Japanese Force in British

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Borneo had showed no signs that theywould surrender.

In turning to the question of whether MrRobertson had ‘incurred danger fromhostile forces’ the AAT said that ‘he wasclearly at risk or harm or injury’, a riskthat the Tribunal considered to be morethan ‘de minimis’. The fact that noincidents actually took place has nobearing on whether he met the object testof ‘incurred danger’ and it was concludedthat he had satisfied the criteria.

The Commission submitted that the AATwas required to determine whether MrRobertson was involved in operations ‘inhostility or active opposition to’ theenemy. The Commission said there wasno evidence to support that any activitiesduring Operation Talaud did so becausethe enemy had already unconditionallysurrendered and there was no evidenceas to if the Japanese forces where inhostile mode or merely waiting to beformally instructed to surrender. Itcontended that the AAT had erred in lawin accepting that because of the ‘climate’(lack of knowledge) in which OperationTalaud took place, the operation met thecriteria of being a ‘military operationagainst the enemy’.

The Commission also argued that theTribunal had focused on the word‘danger’ and not whether Mr Robertsonhad actually ‘incurred danger from hostileforces of the enemy’. It was also said justbecause he had suffered a feeling of‘apprehension’ that alone, was notcapable of supporting that there was anydanger from hostile forces of the enemy.It followed from its previous argumentthat there was also not any evidence tosupport the ‘incurred danger test’.

Whether engaged in operationsagainst the enemy

The court referred to Willcocks vRepatriation Commission (1992) 39 FCR49, in which it was said:

‘any Australian soldiers deployed inthe region to quell hostile Japaneseforces who refused to accept, or wereunaware of, the surrender couldproperly be described as renderingservice in military operations againstthe enemy’

It also referred to the more recent matterof Mitchell (2002) 18 VeRBosity 81 inwhich the Court said:

The section does not require that theveteran be involved in actualpersonal combat against the enemy.Even the phrase ‘actual combatagainst the enemy’ does not requiredirect and personal engagement withthe enemy and it is sufficient that theconduct in question is an integralparticipation in an activity intendedfor an encounter with the enemy,whether offensive or defensive incharacter.

Beaumont J concluded that for theCommission to establish there was noevidence to justify the finding the Tribunalmade in answering the question, it wouldneed to demonstrate at least theTribunal’s findings and inferences couldnot reasonably be made out on theevidence, or reasonably drawn from theprimary facts. It was said that theTribunal had followed the correctapproach and that in his opinion, thefindings were justified by virtue of at leastthe primary facts presented to theTribunal and Mr Robertson had rendered‘operations against the enemy’.

Whether incurred danger from hostileforces of the enemy

The Court referred to the Full FederalCourt decision of Thompson (1988) 82ALR 352 in which the Full Court said:

The words ‘incurred danger’ thereforeprovide an objective, not a subjective,test. A serviceman incurs danger whenhe encounters danger, is in danger oris endangered. He incurs danger fromhostile forces when he is at risk or inperil of harm from hostile forces. A

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serviceman does not incur danger bymerely perceiving or fearing that hemay be in danger. The words ‘incurreddanger’ do not encompass a situationwhere there is mere liability to danger,that is to say, that there is a mere riskof danger. Danger is not incurredunless the serviceman is exposed, atrisk of or in peril of harm or injury.

The danger incurred must of course bemore than a merely fanciful danger or adanger so minimal that the rule of deminimis applies. But to say that is not togive a flavour to the work. Rather it is touse it in its ordinary sense.

The weight, if any, which a Tribunalgives to a particular piece of evidenceis a matter for the Tribunal and forms apart of its fact-finding function. Providedthat a relevant factor is taken intoaccount, no error is shown should theTribunal have given less weight to thematter than would the Court.

The Tribunal found, on the evidence thatit was satisfied that there were ‘enemyforces free to move in the area’ and thatthe respondent was ‘exposed to or at riskor in peril of harm or injury from thosearmed forces’. It was found that theTribunal had again taken the correctapproach and considered the relevanttest, and also considered and applied thetest in Thompson and therefore theCommission’s argument could not beaccepted.

Delahunty v RepatriationCommission

Tamberlin J

[2004] FCA 30926 March 2004

Post traumatic stress disorder –veteran believed that sinking ofsampan killed a woman andchildren – ‘experiencing a severe

stressor’ – mixed subjective andobjective test

Mr Delahunty claimed he suffered frompost traumatic stress disorder (PTSD)caused by an incident off the north coastof Korea in 1953 when the vessel inwhich he served, sunk a sampan bygunfire. The Tribunal accepted evidencethat because such craft were sometimesused as mine layers by the enemy alongthe coast of Korea, they were destroyedwhenever they were seen, and that alarge motorised sampan was destroyedby HMAS Tobruk on 16 July 1953.

While Mr Delahunty had only seen anoutline of the sampan, which was some7 kilometres from HMAS Tobruk when itwas shelled, he believed that there mighthave been a woman and children onboard because he had seen familiesliving in sampans in Asian ports.

The ‘experiencing a severe stressor’ factoris defined in the SoP for PTSD to mean:

...the person experienced, witnessed,or was confronted with an event orevents that involved actual or threatof death or serious injury, or a threatto the person’s or another person’s,physical integrity.

The Tribunal said that Mr Delahunty’scase was that his belief that a womanand children were killed when thesampan was sunk by gunfire had notbeen disproved and that he had beenconfronted with death and observed anatrocity. The Commission’s case was thatthis argument turned on a fantasy giventhat no persons were observed to be onthe sampan and, in particular, there wasno evidence that a woman or childrenwere on board the vessel at the time itwas blown up.

The Tribunal took into account that thesampan was located in an area wherevessels had been laying mines, andfound that Mr Delahunty had notexperienced a severe stressor because itconsidered his claim was based on

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imagination in circumstances where hehad not seen anyone in the sampan. TheTribunal also noted that there were manyinconsistencies in his evidence (such as,in his initial claim he had said there werethree vessels). The Tribunal thereforeconcluded that the hypothesis that hadbeen raised was not reasonable.

Tamberlin J considered what the FullCourt had said in Woodward’s case(2003) 19 VeRBosity 83, and said:

[24] In Woodward, the Full Courtpointed out at [77] that the‘experience’ had to be based on an‘event’ and that a figment of theimagination such as might arisethrough ‘paranoid ideation’ would notbe sufficient to meet this requirement.The Woodward Full Court took theview that there was no suggestion ofany such ‘delusion’ on the part ofMr Woodward. The Court noted thatit was submitted for Mr Woodwardthat it was his ‘experience’ which hadto be the focus of the AATdeliberation, a point which the AATappeared not to have appreciated.The Full Court also pointed out at[123] that, as a matter of ordinaryusage, to be ‘confronted’ withsomething meant to be brought faceto face with it either physically, or,perhaps more commonly, in themind. If the thing being confronted isan event, ordinary usage does notrequire that the person be present atthe event in order that he or shecould be said to ‘confront’ the event.At [136] the Court said:

‘When the question ultimately inissue involves the effect of anobjectively stressful event upon aperson’s mental health, it is hardto see why the unknown reality ofthe threat, as contrasted with theappearance of the reality, shouldbe determinative. Examples thatbring any such distinction intoquestion come readily to mind: thepassenger in an aircraft who

overhears another saying that hehas an explosive device, or theshopkeeper threatened with ashot gun (in fact unloaded) arejust two such examples.’

Tamberlin J noted that the Tribunal hadattached importance to the considerationthat there was no evidence that there hadbeen a woman and children on thesampan because the veteran had notseen anyone and neither had the ship’sgunnery officer, who had the advantageof the use of binoculars. He said:

[26] In my view, the AAT reasonsindicate that there was an incorrectunderstanding of the relevantprinciples. On the criteria adopted bythe Woodward Full Court, it isnecessary to ask whether there wasan event. In my opinion, there was anobjective event, namely the violentdestruction of a sampan or junk. Thisis an objective fact. The next step isto have regard to the point of view ofa reasonable person in the positionof and with the knowledge of theperson experiencing those events.This is a mixed objective andsubjective test. The question thenarises as to what the veteran’sposition and knowledge was. Theanswer is that he associated thesevessels with families of women andchildren because of his observationson relation to similar vessels in Asianports. At that time he had the positionof a relatively junior member of theship’s contingent. He had a limitededucation. He perceived a vessel of atype that he associated with womenand children, from a distance incircumstances where similar vesselswere suspected of laying mines. Hesaid that if he had believed, contraryto his evidence, that there were menand not women on board, then hewould not have regarded the sinkingof the vessel as an atrocity, and norwould he have been shocked.

Federal Court of Australia

20 VeRBosity 24

[27] The term ‘stressor’ denotessomething which leads to stress. It isinherent in the notion of ‘stress’ thatthere is a perception on behalf of anindividual. The existence or extent ofthe stress will depend on eachparticular personality. This conceptinjects a subjective element into thedetermination. What will constitute astressor in a particular set ofcircumstances can encompass awide range of reactions among avariety of reasonable observers. Asthe Full Court in Woodwardobserves, in addition to therequirement that the observation isreasonable, the elements ofknowledge of the particular person inthe particular circumstances and withthe experiences of that person, mustbe taken into account. It is clearly nota purely objective construct such asis applied in negligence cases. It isnot a case of deciding how ‘the manon the Clapham omnibus’ mightreact. There is more. The definitionincorporates the reactions of personswith particular susceptibilities arisingfrom a broad spectrum of backgroundexperiences and cognitive reactions.While one can accept that theperception of the stressor cannotencompass a totally irrationalperception or baseless apprehension,it must be borne in mind that thequestion is whether the stressor issevere and this recognises that thereare different degrees of stress whichmay arise from the incident and giverise to fine questions of fact anddegree in any particularcircumstances. This indicates that thedefinition must be approached in amanner which is not undulyrestrictive. [His Honour’s emphasis]

The Court held that the Tribunal had notcorrectly applied the ‘subjective andindividual element’ of the test, and thusfailed to apply the correct understandingof ‘experiencing a severe stressor’. In sodoing, the Tribunal made an error of law.

Formal decision

The Court allowed the appeal with costs,and remitted the matter to be reheard bythe Tribunal.

Leane v RepatriationCommission

Emmett, Conti, and Selway JJ

[2004] FCAFC 8331 March 2004

Special rate of pension – whethergenuinely seeking to engage inremunerative work – when the testapplies – whether the evidencewas capable of satisfying the test

This was an appeal from a judgment ofFinn J (see (2003) 19 VeRBosity 89),which dismissed an appeal from theTribunal that decided Mr Leane was notentitled to the special rate of pension.

Mr Leane served in the RAAF from 1954until 1988. He had brief periods ofemployment with the ACT EducationDepartment, and then from 1989 until1996 he worked for ACT Electricity andWater. He then worked for a short periodon a specific task with the AustralianElectoral Commission in 1997,amounting to 20 hours over 3 months,and again in 2001, amounting to 8 daysover 2 weeks.

Mr Leane had PTSD accepted as a war-caused disease, and because of thatcondition, he was incapacitated fromundertaking remunerative work for morethan 8 hours a week for the purposes ofs24(1)(b) of the VEA. However, he alsosuffers from osteoarthrosis of both hips,which is not war-caused, and theTribunal found that this also contributedto preventing him from undertaking thekind of work he had been undertaking.Therefore, the ‘alone’ test in s24(1)(c)could not be met.

Federal Court of Australia

20 VeRBosity 25

The Tribunal then considered s24(2)(b),and found that as there were ‘noobjective signs of active pursuit ofremunerative work’, he could not rely ons 24(2)(b) to ameliorating the effect of the‘alone’ test.

The Full Court noted

[28] The primary judge interpretedthe word ‘seeking’ to mean‘attempting to’ or ‘trying to’. This maybe accepted. Such a meaninginvolves something more than a merewish or hope. It requires that aclaimant ‘do’ something. On the otherhand the word ‘genuinely’ is used inthe sense of ‘sincerely’ or ‘honestly’.It involves an assessment of thesubjective intention or purpose of aclaimant. What is required is that theclaimant honestly be trying to engagein remunerative work.

[29] It may be accepted that, in theordinary course, a person in theposition of the veteran would havedifficulty in establishing that he or shewas honestly trying to engage inremunerative work unless there weresome ‘objective signs of activepursuit of remunerative work’.However, it would be wrong to turnthe practical issue of how a personmight establish his or her case intosome legal pre-condition. Assume,for example, that a claimant satisfiedthe Tribunal that:

• he or she honestly wished toengage in remunerative work;

• he or she had made areasonable assessment of his orher disabilities;

• he or she had reasonablyconcluded that he or she couldonly be employed in a particulartype of work;

• he or she was checkingemployment advertisements onthe look out for suchemployment; but

• he or she had not yet identifiedany such employment prospects.

Counsel for the Commission properlyconceded that, on these facts, theTribunal might be satisfied that theclaimant was ‘genuinely seeking toengage in remunerative work’. Thisexample highlights that the adjectives‘objective’ and ‘actual’ in theredefinition adopted by the Tribunalare at least unhelpful and may bemisleading. The proper course was forthe Tribunal to ask itself whether, onthe evidence before it, it was satisfiedthat the veteran was ‘genuinelyseeking to engage in remunerativework’ or not, rather then to ask itselfthe different question that it did ask.

[30] We note, for completeness, that itwas unnecessary for the veteran tosatisfy the Tribunal that he had beengenuinely seeking remunerativeemployment at all times during theassessment period. Under s 19(5C) ofthe ... Act the Tribunal was required toassess ‘the rate or rates’ at which thepension would have been payable‘from time to time’ during theassessment period and, ‘subject tosubsection (6) the rate at which thepension is payable’. ...

[31] The effect of these provisions inthis case is that the Tribunal wasrequired to determine whether aspecial pension was payable at anytime during the assessment period,being the period starting, in this case,November, 1996, and ending whenthe claim for application is ultimatelydetermined: s 19(9) of the ... Act. If aspecial pension was payable at anytime during this period then theTribunal was required to determinethat the special pension was payablefrom that time, notwithstanding that atsome subsequent time the veteranmight not have been able to establishthat he would be entitled to a specialpension.

Federal Court of Australia

20 VeRBosity 26

[32] As the Commission properlyconceded, if the veteran had satisfiedthe Tribunal that he had, at any timeduring the assessment period,complied with the requirements of s24(2)(b) (including the requirement thathe had genuinely been seeking toengage in remunerative employment)then, at least from that time, theveteran would have been entitled to apension at the special rate,notwithstanding that at some later timehe may not have established that hewas genuinely seeking to engage inremunerative employment.

It was argued on behalf of Mr Leane thatthe fact that he had actually hademployment in 1997 and 2001 was anindication that he had been genuinelyseeking to engage in remunerative workduring the assessment period. However,the Full Court said that:

[35] ... the mere fact that a personaccepts remunerative work does notmean that he or she is seeking it, muchless ‘genuinely seeking’ it. Forexample, the relevant employer couldhave sought out the prospectiveemployee and requested that person’sassistance which the employee hadreluctantly given even though theemployee had not been ‘seeking’employment. This does not mean thatevidence of employment could nevergive rise to an inference that theperson had been seeking employment.If evidence was given, for example,that a person had been employed by anumber of different employers over arelatively short period, there may be analmost overwhelming inference thatthat result could only have occurred byreason of the person ‘genuinelyseeking’ employment. Of course, thatinference could be displaced by otherevidence. However, in this case, itwould seem to us that the evidencethat the veteran had been employed ontwo different occasions by the sameemployer was not capable, by itself, of

satisfying the Tribunal that the veteranwas ‘genuinely seeking’ remunerativework, even in 1997 or 2001.

Formal decision

The Court dismissed the appeal andordered Mr Leane to pay theCommission’s costs.

Ed: Previously, a number of AAT caseshad accepted that provided a personhad been genuinely seeking work in thepast, then if at some time in theassessment period their incapacity fromwar-caused injury or disease not onlyprevented them continuing to seek workbut was ‘the substantial cause’preventing them from obtaining work,the provision would be met. Leaneappears to say this is wrong and that aveteran must also, in the assessmentperiod, have been genuinely seekingwork. It is difficult to see how this fitswith the apparently contradictoryrequirement of s 24(2)(b) that, ‘he or shewould, but for that incapacity, becontinuing to seek to engage inremunerative work’, which seems torequire that the veteran be no longerseeking work because of incapacityfrom war-caused injury or disease.

20 VeRBosity 27

Statements of Principles issued by the RepatriationMedical Authority

January – March 2004

Number of Description of InstrumentInstrument

1 of 2004 Revocation of Statement of Principles (Instrument No. 58 of 2002) anddetermination of Statement of Principles concerning malignantneoplasm of the colorectum and death from malignant neoplasm of thecolorectum.

2 of 2004 Revocation of Statement of Principles (Instrument No. 59 of 2002) anddetermination of Statement of Principles concerning malignantneoplasm of the colorectum and death from malignant neoplasm of thecolorectum.

3 of 2004 Amendment of Statement of Principles (Instrument No. 35 of 2003) anddetermination of Statement of Principles concerning hypertension anddeath from hypertension.

4 of 2004 Amendment of Statement of Principles (Instrument No. 36 of 2003) anddetermination of Statement of Principles concerning hypertension anddeath from hypertension.

5 of 2004 Determination of Statement of Principles concerning osteomyelitis anddeath from osteomyelitis.

6 of 2004 Determination of Statement of Principles concerning osteomyelitis anddeath from osteomyelitis.

7 of 2004 Determination of Statement of Principles concerning endometriosis anddeath from endometriosis.

8 of 2004 Determination of Statement of Principles concerning endometriosis anddeath from endometriosis.

9 of 2004 Amendment of Statement of Principles (Instrument No. 53 of 2003) anddetermination of Statement of Principles concerning ischaemic heartdisease and death from ischaemic heart disease.

10 of 2004 Amendment of Statement of Principles (Instrument No. 54 of 2003) anddetermination of Statement of Principles concerning ischaemic heartdisease and death from ischaemic heart disease.

Copies of these instruments can be obtained from:• Repatriation Medical Authority, GPO Box 1014, Brisbane Qld 4001• RMA Website: http://www.rma.gov.au/

20 VeRBosity 28

Repatriation Medical AuthorityCONDITIONS UNDER INVESTIGATION AS AT 31 MARCH 2004

Description of disease or injury [SoPs under consideration] GazettedAchilles tendonitis or bursitis [Instrument Nos. 53/96 & 54/96] 19-11-03

Acute myeloid leukaemia [Instrument Nos 169/96 & 170/96] 16-07-03

Acute sprains and acute strains [Instrument Nos. 50/94 & 51/94] 19-11-03

Asbestosis [Instrument Nos 138/96 & 139/96] 16-04-03

Bipolar disorder [Instrument Nos 128/96 & 129/96] 24-03-04

Brodie’s abscess 5-03-03

Caisson disease [Instrument Nos 147/95 & 148/95] 31-03-04

Chronic bronchitis & emphysema [Instrument Nos 73/97 & 74/97] 16-04-03

Chronic lymphoid leukaemia [Instrument Nos 67/01 & 68/01] 16-07-0317-12-03

Dermatomyositis 16-07-03

Diabetes mellitus [Instrument Nos 82/99 & 83/99 asamended by Nos 9/01, 10/01, 91/01& 92/01]

28-11-01

Endometriosis 16-10-02

Epilepsy [Instrument Nos 79/96 & 80/96] 5-03-03

Fracture [Instrument Nos. 11/94 & 12/94 asamended by Nos. 219/95 & 220/95]

19-11-03

Gastro-oesophageal reflux disease [Instrument Nos 52/02 & 53/02] 18-12-02

Haemorrhoids [Instrument Nos 13/00 & 14/00] 13-11-02

Hiatus hernia [Instrument Nos 42/99 & 43/99] 14-08-02

Hodgkin’s disease [Instrument Nos 25/00 & 26/00] 20-08-03

Inguinal hernia [Instrument Nos 72/98 & 73/98] 16-04-03

Jakob-Creutzfeldt disease [Instrument Nos 63/95 & 64/95 asamended by Nos 190/95, 49/97 &50/97]

18-12-02

Lateral epicondylitis 24-03-04

Leptospirosis 5-03-03

Malignant neoplasm of the breast [Instrument Nos 53/97 & 54/97] 16-07-03

Malignant neoplasm of the larynx [Instrument Nos 27/95 & 28/95 asamended by Nos 155/95 & 156/95,151/96 & 152/96, 193/96 & 194/96]

16-07-03

Malignant neoplasm of the lung [Instrument Nos 35/01 & 36/01] 20-08-03

20 VeRBosity 29

Description of disease or injury [SoPs under consideration] GazettedMalignant neoplasm of the oral cavity or hypopharynx

[Instrument Nos 113/96 & 114/96] 6-03-02

Malignant neoplasm of the pancreas [Instrument Nos 55/97 & 56/97 asamended by 20/02 & 21/02]

20-08-03

Malignant neoplasm of the prostate [Instrument Nos 84/99 & 85/99 asamended by Nos 69/02 & 70/02]

16-07-03

Malignant neoplasm of the salivary gland [Instrument Nos 25/97 & 26/97] 6-03-02

Malignant neoplasm of the small intestine [Instrument Nos 153/96 & 154/96as amended by Nos 7/98 & 8/98]

16-04-03

Malignant neoplasm of the testis and paratesticular tissues[Instrument Nos 3/97 & 4/97]

14-08-02

Malignant neoplasm of the thyroid gland [Instrument Nos 33/98 & 34/98] 16-07-03

Metastatic carcinoma of unknown primary 19-11-03

Myelodysplastic disorder [Instrument Nos 15/00 & 16/00] 20-08-03

Narcolepsy 28-01-04

Neoplasm of the pituitary gland [Instrument Nos 37/97 & 38/97] 13-11-02

Non melanotic malignant neoplasm of the skin[Instrument Nos 43/01 & 44/01 asamended by Nos 51/01 & 52/01]

8-05-02

Osteoarthrosis [Instrument Nos.81/01 & 82/01] 15-10-03

Osteomyelitis 5-03-03

Paget’s disease [Instrument Nos.15/96 & 16/96] 28-01-04

Peripheral neuropathy [Instrument Nos 79/01 & 80/01 asamended by 13/03 & 14/03]

20-08-03

Plantar fasciitis [Instrument Nos. 3/00 & 4/00 asamended by Nos. 47/03 & 48/03]

19-11-03

Pulmonary barotrauma 24-03-04

Rheumatoid arthritis [Instrument Nos 126/96 & 127/96] 13-11-02

Rotator cuff syndrome [Instrument Nos. 83/97 & 84/97] 19-11-03

Seborrhoeic dermatitis [Instrument Nos 50/99 & 51/99] 16-07-03

Seizures [Instrument Nos 81/96 & 82/96] 5-03-03

Sleep apnoea [Instrument Nos 39/97 & 40/97] 11-06-03

Soft tissue sarcoma [Instrument Nos 23/01 & 24/01] 20-08-03

Spondylolisthesis & spondylolysis [Instrument Nos 15/97 & 16/97] 5-03-03

Tinea [Instrument Nos 27/94 & 28/94 asamended by Nos 184/95, 185/95,7/02 & 8/02]

29-05-02

AAT and Court decisions –January to March 2004

(Note: also includes some cases delivered in 2003)AATA = Administrative Appeals TribunalFCA = Federal CourtFCAFC = Full Court of the Federal CourtFMCA = Federal Magistrates Court

Allowances & benefits

attendant allowance- whether injury or disease similar in

effect or severity to injury or disease ofcerebro-spinal system

Thomas, I M[2004] AATA 5 8 Jan 2004

Application for review

dismissal of VRB application- whether exercise of dismissal power

validJohnson, K D

[2004] AATA 242 10 Mar 2004

Carcinoma

rectum- smoking

Blanch (Navy)[2004] AATA 243 10 Mar 2004

Circulatory disorder

atrial fibrillation- salt ingestion

Lockhart, K S (Army)[2004] AATA 55 23 Jan 2004

atrioventricular block- ischaemic heart disease

- smokingPursell, M R (Army)

[2004] AATA 158 17 Feb 2004

cerebrovascular accident- alcohol

Clarke, L M (Army)[2004] AATA 54 23 Jan 2004

- panic disorderGavin, J M (Army)

[2004] AATA 286 18 Mar 2004

hypertension- alcohol

Snadden, C W R (Navy)[2004] AATA 111 6 Feb 2004

ischaemic heart disease- cessation of smoking

Blunden, R C (Army)[2003] AATA 1340 23 Dec 2003

- hypertensionLockhart, K S (Army)

[2004] AATA 55 23 Jan 2004- inability to undertake physical activity

Lockhart, K S (Army)[2004] AATA 55 23 Jan 2004

- salt ingestionLockhart, K S (Army)

[2004] AATA 55 23 Jan 2004- smoking

Pursell, M R (Army)[2004] AATA 158 17 Feb 2004

Date of effect

war widow’s pension- further claim successful

- unable to backdate to earlier dateRyde, E P

[2004] AATA 274 16 Mar 2004

Death

accidental death- fall

- alcohol abuse or dependenceBell, C (RAAF)

[2004] AATA 88 3 Feb 2004

alcohol abuse or dependence- experiencing a severe stressor

- inferred from known events andchanged personalityBell, C (RAAF)

[2004] AATA 88 3 Feb 2004

carcinoma of colon- alcohol

Elson, J P (Navy)[2004] AATA 18 14 Jan 2004

carcinoma of lung- smoking

Bort, B M (Army)[2004] AATA 292 19 Mar 2004

cerebrovascular accident- hypertension

- asthmaKohler, A (RAAF)

[2004] AATA 142 13 Feb 2004- Cushing’s syndrome

Kohler, A (RAAF)[2004] AATA 142 13 Feb 2004

- obesityKohler, A (RAAF)

[2004] AATA 142 13 Feb 2004

AAT and Court decisions –January to March 2004

20 VeRBosity 31

- panic disorderKohler, A (RAAF)

[2004] AATA 142 13 Feb 2004

cirrhosis of liver- alcohol

Davies, B A (Navy)[2004] AATA 63 23 Jan 2004

death certificate- accuracy doubted

Ritchie, P C (Navy)[2004] AATA 298 19 Mar 2004

ischaemic heart disease- hypertension

- anxiety disorderPorter, I M (Army)

[2004] AATA 51 23 Jan 2004- panic disorder

Johnson, R P (Army)[2004] AATA 57 23 Jan 2004

- Japanese air raids on TownsvillePorter, I M (Army)

[2004] AATA 51 23 Jan 2004- witnessed deaths and atrocities

Berghofer, M P (Army)[2004] AATA 58 23 Jan 2004

- smokingMurton, A (Navy)

[2004] AATA 133 12 Feb 2004Ritchie, P C (Navy)

[2004] AATA 298 19 Mar 2004

renal failure- hypertension

- inadequate evidence of diagnosisHayes, D M (Army)

[2004] AATA 193 27 Feb 2004

secondary cancer- cannot apply SoP for site of secondary

- must apply SoP for the primary siteRoscoe (Gray J)

[2003] FCA 1568 23 Dec 2003

Eligible service

domicile- whether intention to remain in Australia

indefinitelyVandegraaf, E L (Dutch Air Force)

[2004] AATA 271 16 Mar 2004

operational service- actual combat against the enemy

- Thursday Island in 1945Davies, B A (Navy)

[2004] AATA 63 23 Jan 2004

- whether continuous full-time serviceoutside Australia

- ‘essential character of service’ testRoscoe (Gray J)

[2003] FCA 1568 23 Dec 2003- passenger on voyage off WA coast

Roscoe (Gray J)[2003] FCA 1568 23 Dec 2003

qualifying service- Aden

- Radfan in 1964-65Graham, A (British Army)

[2004] AATA 180 24 Feb 2004- danger from hostile forces of the enemy

Robertson (Beaumont J)[2004] FCA 173 5 Mar 2004

- operations against the enemyRobertson (Beaumont J)

[2004] FCA 173 5 Mar 2004- period of hostilities

- associated with an operational areaGraham, A (British Army)

[2004] AATA 180 24 Feb 2004- Ubon

- exercise RamasoonHunt, G (RAAF)

[2004] AATA 105 6 Feb 2004- whether warlike service

Hunt, G (RAAF)[2004] AATA 105 6 Feb 2004

whether a member of a particular unit- Base Squadron Ubon

Hunt, G (RAAF)[2004] AATA 105 6 Feb 2004

whether veteran or member of the Forces- member of Dutch Air Force operating

with RAAFVandegraaf, E L (Dutch Air Force)

[2004] AATA 271 16 Mar 2004- whether Commonwealth veteran

- not serving in operational areaGraham, A (British Army)

[2004] AATA 180 24 Feb 2004

Evidence and proof

credibility- absence of medical records

Stevenson, R (Army)[2004] AATA 93 4 Feb 2004

- altered smoking historyBlunden, R C (Army)

[2003] AATA 1340 23 Dec 2003

AAT and Court decisions –January to March 2004

20 VeRBosity 32

- representative accused of givingfalse historyLockhart, K S (Army)

[2004] AATA 55 23 Jan 2004- differing smoking histories

Murton, A (Navy)[2004] AATA 133 12 Feb 2004

- inconsistent account of eventsStevenson, R (Army)

[2004] AATA 93 4 Feb 2004

Gastrointestinal disorder

gastro-oseophageal reflux disease- non-steroidal anti-inflammatory drug

Stevenson, R (Army)[2004] AATA 93 4 Feb 2004

- smokingCole, B W (RAAF)

[2004] AATA 3 6 Jan 2004

hiatus hernia- diagnosis

Stevenson, R (Army)[2004] AATA 93 4 Feb 2004

irritable bowel syndrome- psychiatric disorder

McCutcheon (RAAF)[2004] AATA 329 31 Mar 2004

peptic ulcer- smoking

Cole, B W (RAAF)[2004] AATA 3 6 Jan 2004

General rate, EDA & degree ofincapacity

Guide to Assessment (1998 GARP)- Chapter 4

Tran, M[2004] AATA 75 29 Jan 2004

Haematological and immunologicaldisorders

autoimmune disease- chemicals

- herbicidesFindlay, I (RAAF)

[2004] AATA 137 12 Feb 2004- pesticides

Findlay, I (RAAF)[2004] AATA 137 12 Feb 2004

Historical material

Army- 101 Field Battery

- Fire Support Base Discovery -October - November 1969Campbell, N W (Army)

[2004] AATA 127 11 Feb 2004

Navy- HMAS Jeparit

- September 1971Crandon, A L (Navy)

[2004] AATA 87 3 Feb 2004

Ubon, Thailand- Operation Ramasoon

Hunt, G (RAAF)[2004] AATA 105 6 Feb 2004

- Snow Gum ForceHunt, G (RAAF)

[2004] AATA 105 6 Feb 2004

Vietnam- 1969

- Fire Support Base DiscoveryCampbell, N W (Army)

[2004] AATA 127 11 Feb 2004- 1971

- HMAS JeparitCrandon, A L (Navy)

[2004] AATA 87 3 Feb 2004- chemical spraying

- herbicides and pesticidesFindlay, I (RAAF)

[2004] AATA 137 12 Feb 2004

Jurisdiction and powers

Administrative Appeals Tribunal- eligibility for medal

- no jurisdictionSavage, R

[2004] AATA 67 27 Jan 2004

Neurological disorder

headache- see migraine- trauma

Woods, C M (RAAF)[2004] AATA 132 11 Feb 2004

migraine- trauma

Woods, C M (RAAF)[2004] AATA 132 11 Feb 2004

AAT and Court decisions –January to March 2004

20 VeRBosity 33

Osteoarthrosis

hip- arthralgia

Fitzgerald, T H (RAAF)[2004] AATA 333 31 Mar 2004

- cramped, cold conditionsFitzgerald, T H (RAAF)

[2004] AATA 333 31 Mar 2004

Practice and procedure

Administrative Appeals Tribunal- frivolous or vexatious application

Johnson, K D[2004] AATA 242 10 Mar 2004

Psychiatric disorder

adjustment disorder- experienced a severe stressor

- not suffering from PTSDPatterson, D S (RAAF)

[2003] AATA 1156 23 Dec 2003- personal problems

Patterson, D S (RAAF)[2003] AATA 1156 23 Dec 2003

alcohol abuse or dependence- aggravation

Turner, G (Navy)[2004] AATA 290 19 Mar 2004

- experiencing a severe stressor- civil unrest

Lipscombe, A (Navy)[2004] AATA 79 30 Jan 2004

- fish mistaken for a grenadeYoungnickel, T J (Navy)

[2004] AATA 19 14 Jan 2004- locked in boiler room

Kilmister, D D (Navy)[2004] AATA 310 26 Mar 2004

- log struck by HMAS SnipeBoyes, J J (Navy)

[2004] AATA 17 13 Jan 2004- scare charges

Symons, P (Navy)[2003] AATA 619 30 Jun 2003

Todd, G A D (Navy)[2004] AATA 81 30 Jan 2004

Crandon, A L (Navy)[2004] AATA 87 3 Feb 2004

- witnessed begging women with deadbabiesPippen, B (Army)

[2004] AATA 65 23 Jan 2004

- witnessed dead bodiesSnadden, C W R (Navy)

[2004] AATA 111 6 Feb 2004Kilmister, D D (Navy)

[2004] AATA 310 26 Mar 2004Crandon, A L (Navy)

[2004] AATA 87 3 Feb 2004- witnessed severed head

Balabouhin, J (Navy)[2004] AATA 86 3 Feb 2004

- inability to obtain appropriate clinicalmanagement

Turner, G (Navy)[2004] AATA 290 19 Mar 2004

- psychiatric disorder- anxiety disorder

Dickson, K E (Army)[2003] AATA 1341 23 Dec 2003

anxiety disorder- aggravation

Dickson, K E (Army)[2003] AATA 1341 23 Dec 2003

- back painDickson, K E (Army)

[2003] AATA 1341 23 Dec 2003- clinical onset

- not within 2 years of alleged stressorBedson, F J (Navy)

[2004] AATA 124 10 Feb 2004- diagnosis

- being anxious not itself indicative ofanxiety disorderDavison, J (Navy)

[2004] AATA 99 5 Feb 2004- experiencing a severe stressor

- helicopter evacuation of woundedsoldierMcCutcheon (RAAF)

[2004] AATA 329 31 Mar 2004- helicopter flights in Vietnam

Gregory, R L (Army)[2004] AATA 254 12 Mar 2004

- log struck by HMAS SnipeBoyes, J J (Navy)

[2004] AATA 17 13 Jan 2004- stranded on deck

Hicks, F J (Navy)[2004] AATA 266 10 Mar 2004

- witnessed dead bodiesSnadden, C W R (Navy)

[2004] AATA 111 6 Feb 2004- witnessed MP shooting US soldier

Bedson, F J (Navy)[2004] AATA 124 10 Feb 2004

AAT and Court decisions –January to March 2004

20 VeRBosity 34

depressive disorder- experiencing a severe stressor

- harassmentGray, P (RAAF)

[2004] AATA 61 23 Jan 2004- scare charges

Symons, P (Navy)[2003] AATA 619 30 Jun 2003

- witnessed dead bodiesSnadden, C W R (Navy)

[2004] AATA 111 6 Feb 2004- psychiatric disorder

- alcohol abuse or dependenceSymons, P (Navy)

[2003] AATA 619 30 Jun 2003Gray, P (RAAF)

[2004] AATA 61 23 Jan 2004

diagnosis- experienced a severe stressor

- not suffering from PTSDPatterson, D S (RAAF)

[2003] AATA 1156 23 Dec 2003McCutcheon (RAAF)

[2004] AATA 329 31 Mar 2004- not all diagnostic criteria present

Davison, J (Navy)[2004] AATA 99 5 Feb 2004

panic disorder- experiencing a severe stressor

- bus/train accidentGavin, J M (Army)

[2004] AATA 286 18 Mar 2004- death of friend

Gavin, J M (Army)[2004] AATA 286 18 Mar 2004

- expectation of Japanese landingGavin, J M (Army)

[2004] AATA 286 18 Mar 2004

post traumatic stress disorder- aggravation

Turner, G (Navy)[2004] AATA 290 19 Mar 2004

- experiencing a severe stressor- civil unrest

Lipscombe, A (Navy)[2004] AATA 79 30 Jan 2004

- locked in boiler roomKilmister, D D (Navy)

[2004] AATA 310 26 Mar 2004- helicopter evacuation of wounded

soldierMcCutcheon (RAAF)

[2004] AATA 329 31 Mar 2004

- scare chargesTodd, G A D (Navy)

[2004] AATA 81 30 Jan 2004Crandon, A L (Navy)

[2004] AATA 87 3 Feb 2004- stranded on deck

Hicks, F J (Navy)[2004] AATA 266 10 Mar 2004

- whether subjective or objectiveDelahunty (Tamberlin J)

[2004] FCA 309 5 Mar 2004- witnessed begging women with dead

babiesPippen, B (Army)

[2004] AATA 65 23 Jan 2004- witnessed dead bodies

Crandon, A L (Navy)[2004] AATA 87 3 Feb 2004

Kilmister, D D (Navy)[2004] AATA 310 26 Mar 2004

- witnessed severed headBalabouhin, J (Navy)

[2004] AATA 86 3 Feb 2004- inability to obtain appropriate clinical

managementTurner, G (Navy)

[2004] AATA 290 19 Mar 2004

specific phobia- situational

- collision between oil tanker and SSNew AustraliaClements, E (Army)

[2004] AATA 319 26 Mar 2004- engine failure on flight from Perth to

MelbourneClements, E (Army)

[2004] AATA 319 26 Mar 2004- exposed to tear gas in training

exerciseClements, E (Army)

[2004] AATA 319 26 Mar 2004

Remunerative work & special rate

capacity to undertake remunerative work- whether incapable of more than part-

time work or 20 hour per week- subjective view of applicant irrelevant

Briggs, K W[2004] AATA 129 11 Feb 2004

AAT and Court decisions –January to March 2004

20 VeRBosity 35

ceased to engage in remunerative work- reason for ceasing

- wider than reason for leavingparticular job, but still relevantVan Ewijk (Stone J)

[2004] FCA 17 30 Jan 2004

employment- cleaning business

Norris, J D[2003] AATA 1334 17 Nov 2003

Williams, R D[2004] AATA 46 22 Jan 2004

- clerical workJohnston, W S

[2004] AATA 115 6 Feb 2004- driver

Briggs, K W[2004] AATA 129 11 Feb 2004

- farmerWarburton, C

[2004] AATA 106 6 Feb 2004- labourer

Case, N J[2004] AATA 45 22 Jan 2004

- security officerDavis, T M

[2004] AATA 126 10 Feb 2004

loss of salary, wages, or earningsWaldock, W

[2004] AATA 263 15 Mar 2004- business deterioration

Richardson, R I[2004] AATA 295 24 Mar 2004

- continuing to receive wages afterceasing work

Norris, J D[2003] AATA 1334 17 Nov 2003

unable to obtain remunerative work- the substantial cause test applied

Case, N J[2004] AATA 45 22 Jan 2004

Johnston, W S[2004] AATA 115 6 Feb 2004

Davis, T M[2004] AATA 126 10 Feb 2004

Giesen, L[2004] AATA 282 17 Mar 2004

whether continuing to undertake last paidwork

- quality of activity relevantWarburton, C

[2004] AATA 106 6 Feb 2004

whether genuinely seeking to engage inremunerative work

Case, N J[2004] AATA 45 22 Jan 2004

Youngberry, C J[2004] AATA 309 26 Mar 2004

- nature of evidence requiredLeane (Emmett, Conti, Selway JJ)

[2004] FCAFC 83 31 Mar 2004- state of the labour market

Austin, C[2004] AATA 288 19 Mar 2004

- time at which test to be appliedLeane (Emmett, Conti, Selway JJ)

[2004] FCAFC 83 31 Mar 2004

whether prevented by war-caused disabilitiesalone

- ageShort, J M

[2003] AATA 1347 30 Dec 2003Austin, C

[2004] AATA 288 19 Mar 2004Waldock, W

[2004] AATA 263 15 Mar 2004- effect of earnings on service pension

Short, J M[2003] AATA 1347 30 Dec 2003

- effect of non-accepted disabilitiesMatthews, B

[2004] AATA 314 25 Mar 2004Waldock, W

[2004] AATA 263 15 Mar 2004- employer required full-time employee

Youngberry, C J[2004] AATA 309 26 Mar 2004

- incapable of carrying out duties whenceased last work

Clarke, N[2004] AATA 353 12 Mar 2004

- labour marketAustin, C

[2004] AATA 288 19 Mar 2004- poor reputation

Waldock, W[2004] AATA 263 15 Mar 2004

- redundancyBalabouhin, J

[2004] AATA 86 3 Feb 2004- retrenchment

Case, N J[2004] AATA 45 22 Jan 2004

- service pension availabilityBalabouhin, J

[2004] AATA 86 3 Feb 2004

AAT and Court decisions –January to March 2004

20 VeRBosity 36

- workers’ compensationWilliams, R D

[2004] AATA 46 22 Jan 2004- workplace modifications required for non

service-related disabilitiesPritchard (Kiefel J)

[2004] FCA 44 3 Feb 2004

Respiratory disorder

bronchitis- diagnosis

Bond, S (RAAF)[2004] AATA 108 6 Feb 2004

- exposure to gas irritantBond, S (RAAF)

[2004] AATA 108 6 Feb 2004

Service pension

assets test- loans

Miller, J & M[2004] AATA 84 3 Feb 2004

- family trustMiller, J & M

[2004] AATA 84 3 Feb 2004

failure to comply with s 54 notice- income and assets

Miller, J & M[2004] AATA 84 3 Feb 2004

invalidity service pension- capacity to undertake remunerative

work- whether solely because of

impairmentNguyen, T N

[2003] AATA 1305 19 Dec 2003- impairment

- psychiatric disordersNguyen, T N

[2003] AATA 1305 19 Dec 2003Tran, M

[2004] AATA 75 29 Jan 2004- permanent impairment

- meaning of ‘permanent’Nguyen, T N

[2003] AATA 1305 19 Dec 2003

Spinal disorder

cervical spondylosis- trauma

- hit neckWoods, C M (RAAF)

[2004] AATA 132 11 Feb 2004

lumbar spondylosis- cramped, cold conditions

Fitzgerald, T H (RAAF)[2004] AATA 333 31 Mar 2004

- trauma- fall

Elliot, L G (Army)[2004] AATA 37 20 Jan 2004

Dawson, R (RAAF)[2004] AATA 107 6 Feb 2004

- liftingStevenson, R (Army)

[2004] AATA 93 4 Feb 2004

Words and phrases

danger from hostile forces of the enemyRobertson (Beaumont J)

[2004] FCA 173 5 Mar 2004

operations against the enemyRobertson (Beaumont J)

[2004] FCA 173 5 Mar 2004

experiencing a severe stressor- whether subjective or objective

Delahunty (Tamberlin J)[2004] FCA 309 5 Mar 2004

inability to obtain appropriate clinicalmanagement

Turner, G (Navy)[2004] AATA 290 19 Mar 2004

permanent impairmentNguyen, T N

[2003] AATA 1305 19 Dec 2003