Repatriation Commission v Applebee [2000] FCA 1246

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Applebee [2000] FCA 1246

VETERANS' AFFAIRS – veterans' entitlements – disability pension – appeal from decision of Administrative Appeals Tribunal – whether glaucoma is a sequela of veteran's accepted war-caused cerebrovascular disease – whether Guide to Assessment of Rate of Veterans' Pensions correctly applied – whether inconsistency between general instructions to Guide and chapter of Guide. Veterans' Entitlement Act 1986 (Cth) – ss 120(4), 120B(3) REPATRIATION COMMISSION v ALBERT GEORGE APPLEBEE VG 344 of 1998 WEINBERG J 6 SEPTEMBER 2000 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 344 OF 1998

BETWEEN: REPATRIATION COMMISSION

APPLICANT

AND: ALBERT GEORGE APPLEBEE

RESPONDENT

JUDGE: WEINBERG J

DATE OF ORDER: 6 SEPTEMBER 2000

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The Administrative Appeals Tribunal's decision made on 29 June 1998 that "the condition of bilateral open angle glaucoma is a sequela of Mr Applebee's accepted war-caused cerebrovascular disease" be set aside. 3. The Administrative Appeals Tribunal's decision made on 29 June 1998 be otherwise affirmed. 4. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 344 OF 1998

BETWEEN: REPATRIATION COMMISSION

APPLICANT

AND: ALBERT GEORGE APPLEBEE

RESPONDENT

JUDGE: WEINBERG J

DATE: 6 SEPTEMBER 2000

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from part of a decision of the Veterans' Appeal Division of the Administrative Appeals Tribunal ("the AAT") made on 29 June 1998. 2 By that decision the AAT varied the decision of the Repatriation Commission ("the Commission") and substituted a decision that the condition of bilateral open angle glaucoma is a sequela of the respondent, Mr Applebee's, accepted war-caused cerebrovascular disease ("CVD"), and increased his rate of pension to 70% of the General Rate from 11 April 1996 and 80% of the General Rate from 23 April 1996. 3 The effect of the AAT's decision was to render the Commonwealth liable to pay pension and provide medical treatment to Mr Applebee in respect of his incapacity from three injuries or diseases accepted as war-caused within s 9 of the Veterans' Entitlement Act 1986 (Cth) ("the VE Act") plus his glaucoma, which has not been determined to be a war-caused injury or disease. 4 The errors of law said by the applicant to have been made by the AAT involve the following general issues: (i) the proper construction of the Guide to the Assessment of the Rates of Veterans' Pensions ("the Guide"); and (ii) the interaction between the Guide and ss 120(4) and 120B(3) of the VE Act. 5 More specifically, the grounds of appeal raised by the applicant were as follows: 1. In concluding that Mr Applebee's glaucoma was a sequela of his war-caused CVD, the AAT failed to conform to the requirements of the VE Act and the Guide which required that: (i) the AAT first determine whether Mr Applebee's glaucoma was war-caused; and (ii) only determine that glaucoma was war-caused if the contention that glaucoma was probably connected to war service was upheld by the relevant Statement of Principles (SoP). 2. The AAT erred in law in concluding that there was an inconsistency between the terms of pages 8-9 of the Guide and Chapter 5 of the Guide and that inconsistency justified the AAT in finding that glaucoma was a sequela of Mr Applebee's CVD.