Blair v Repatriation Commission [2005] FCA 1076

FEDERAL COURT OF AUSTRALIA

Blair v Repatriation Commission [2005] FCA 1076

VETERANS' ENTITLEMENT – claim that Lyme disease caused by operational service – hypothesis put forward that applicant bitten by tick, tick carried pathogens – whether Tribunal introduced burden of proof by requiring evidence of facts for hypothesis to be "reasonable"

Veterans' Entitlements Act 1986 (Cth) ss 9, 120(1) and (3) East v Repatriation Commission (1987) 16 FCR 517 applied Repatriation Commission v Bey (1997) 79 FCR 364 applied Repatriation Commission v Deledio (1998) 83 FCR 82 at 93applied Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 applied JOHN ALEXANDER WILLIAM BLAIR v REPATRIATION COMMISSION NO TAD 2 OF 2005 HEEREY J 8 AUGUST 2005 MELBOURNE (HEARD IN HOBART)

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY TAD 2 OF 2005

BETWEEN: JOHN ALEXANDER WILLIAM BLAIR

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 8 AUGUST 2005

WHERE MADE: MELBOURNE (HEARD IN HOBART)

THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The applicant pay the respondent's costs to be taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY TAD 2 OF 2005

BETWEEN: JOHN ALEXANDER WILLIAM BLAIR

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: HEEREY J

DATE: 8 AUGUST 2005

PLACE: MELBOURNE (HEARD IN HOBART)

REASONS FOR JUDGMENT 1 The applicant appeals from a decision of the Administrative Appeals Tribunal constituted by the Hon R J Groom DP affirming a decision of the respondent which had been affirmed by the Veterans' Review Board. 2 The applicant had claimed that he suffered from Lyme borreliosis (Lyme disease) and that that disease was war-caused within the meaning of s 9 of the Veterans' Entitlements Act 1986 (the Act). It was not in dispute that the applicant was at the relevant time engaged in operational service and that the applicable provisions are s 120(1) and (3) of the Act. Relevantly those provisions are: "(1) Where a claim under Part II for a pension in respect of the incapacity from … disease of a veteran … relates to the operational service rendered by the veteran, the Commission shall determine that … the disease was a war-caused disease … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. … (3) In applying subsection (1) or (2) in respect of the incapacity of a person from … disease … related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) … (b) that the disease was a war-caused disease or a defence-caused disease; (c) … as the case may be, if the Commission, after consideration of the whole material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the … disease … with the circumstances of the particular service rendered by the person." 3 No Statement of Principles has been determined by the Repatriation Medical Authority in relation to Lyme disease and thus the provisions of s 120A of the Act are not relevant.