Patterson v Repatriation Commission [2006] FCA 538

FEDERAL COURT OF AUSTRALIA Patterson v Repatriation Commission [2006] FCA 538 DEFENCE AND WAR – veterans' entitlements – claim for hypertension arising out of eligible war service in Vietnam – Held: Administrative Appeals Tribunal erred in making findings of fact as to factors prescribed by Statement of Principles and placing onus of proof on applicant Veterans' Entitlement Act 1986 (Cth) ss 9(1)(b), 120, 120A(3) Patterson and Repatriation Commission [2005] AATA 758 discussed Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 applied Deledio v Repatriation Commission (1997) 47 ALD 261 at 275 discussed East v Repatriation Commission (1987) 16 FCR 517 cited DAVID MITCHELL PATTERSON v REPATRIATION COMMISSION NO VID 1059 of 2005 HEEREY J 12 MAY 2006 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1059 of 2005

BETWEEN: DAVID MITCHELL PATTERSON

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 12 MAY 2006

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The determination of the Administrative Appeals Tribunal made on 9 August 2005 is set aside.

3. The applicant's claim is remitted to the Tribunal differently constituted for further consideration according to law.

4. The respondent pay the applicant's costs of the appeal, including reserved 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 VID 1059 of 2005

BETWEEN: DAVID MITCHELL PATTERSON

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: HEEREY J

DATE: 12 MAY 2006

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant Mr David Patterson claims that his condition of hypertension arose out of, or was attributable to, his eligible war service in Vietnam, within the meaning of s 9(1)(b) of the Veterans' Entitlement Act 1986 (Cth) (the Act). The rejection of his claim by the respondent Repatriation Commission and the Veterans' Review Board was affirmed by the Administrative Appeals Tribunal: Patterson and Repatriation Commission [2005] AATA 758. Mr Patterson now appeals to this Court. 2 The relevant Statement of Principles (SoP) concerning hypertension for the purposes of s 120A(3) of the Act, No 35 of 2003, provides by cl 4 that at least one of the factors in cl 5 "must be related to any relevant service rendered". The factors in cl 5 include: "(a) being obese at the time of the clinical onset of hypertension; or (b) consuming an average of at least 200 g per week of alcohol which cannot be decreased to less than an average of 200 g per week at the time of the clinical onset of hypertension; or (c) ingesting at least 12 g of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension." 3 Mr Patterson served as a gunner in the Australian Army in Vietnam from 4 February until 30 October 1971. His clinical onset of hypertension occurred in 1978. 4 Mr Patterson contended that the material before the Tribunal raised three hypotheses for the purposes of s 120(3) of the Act. These were that the stressors, tension and circumstances of his operational war service in Vietnam led to: