FEDERAL COURT OF AUSTRALIA

Jakab v Repatriation Commission [2007] FCA 898

VETERANS AFFAIRS – appeal from a decision of the Administrative Appeals Tribunal – consideration of whether the applicant contracted a defence‑caused disease, namely, Meniere’s Disease – reference to the Statement of Principles – reference to the Standard of Proof – discussion of s 119(1)(h) of the Veterans’ Entitlements Act 1986 (Cth)

Veterans’ Entitlements Act 1986, s 5D(2), s 68(1), s 69, s 70(1), s 70(5)(a), s 70(5)(d)(i), s 70(5)(d)(ii), s 119(1)(h), s 120(4), s 120B, s 196B(3), s 196B(14)

Repatriation Commission v Smith (1987) 15 FCR 327

Repatriation Commission v Wedekind [2000] FCA 649

Lees v Repatriation Commission [2002] FCAFC 398

Re O’Brien and Repatriation Commission [2003] AATA 525

STEFAN GEORG JAKAB v REPATRIATION COMMISSION

QUD323 OF 2005

GREENWOOD J

13 JUNE 2007

BRISBANE

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  The costs of and incidental to the application are reserved.

3.                  The applicant shall file and serve by 4.00pm, Tuesday, 19 June 2007 any comments or submissions in relation to the question of whether the applicant ought to be ordered to pay the costs of the respondent of and incidental to the application. 

4.                  The respondent is to file and serve by 4.00pm, Tuesday, 26 June 2007 any submissions in relation to the question of costs. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Background

1                     The applicant Mr Stefan Jakab makes application pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) by way of an appeal from a decision of the Administrative Appeals Tribunal (‘AAT’) affirming a decision of the Repatriation Commission that Mr Jakab’s Meniere’s Disease diagnosed in 1995 was not related to his period of eligible defence service. 

2                     Mr Jakab has been represented in relation to the application by a firm of solicitors.  On the hearing of the appeal, a preliminary application was made by those solicitors for leave to withdraw and leave was granted.  Mr Jakab supported that application and wished to make submissions on his own behalf in support of the appeal.  Mr Jakab in that sense is self‑represented although some written submissions have been made by Mr Jakab’s former solicitors.  In addition to those submissions, Mr Jakab made oral submissions raising a question of whether the AAT had regard to s 119(1)(h) of the Veterans’ Entitlements Act 1986 (Cth) (‘the V E Act’) in reaching its decision.  That section provides that in considering, hearing or determining and in making a relevant decision account shall be taken of any difficulties that for any reason lie in the way of ascertaining the existence of any fact, matter or circumstance including any reason attributable to the effects of the passage of time and the absence of or deficiency in any relevant official record relating to that fact, matter or circumstance.  Mr Jakab asserts that over a long period of time complaints were made to medical officers within the Defence Force of symptoms entirely consistent with the contraction of Meniere’s Disease and that in evaluating the facts and reaching its finding, the AAT ought to have had regard to the difficulty confronting the applicant in establishing the relevant factual matters due to the passage of time. 

3                     In the Notice of Appeal, Mr Jakab raises two questions of law to be determined.  First, whether the Tribunal erred by failing to take into account relevant matters and secondly, whether the Tribunal erred by taking into account irrelevant matters.  Of course, neither of those contentions properly formulate a question of law for determination in the appeal.  The obligation cast upon an applicant pursuant to s 44(1) is to identify the question of law arising out of the decision of the AAT to be resolved by the Federal Court of Australia which is said to reflect an error of law.  Formulating the question of law as a contention in terms of high level of abstraction such as a failure to take into account relevant matters and taking into account irrelevant matters does not crystallise a proper question of law for resolution. 

4                     In the written submissions prepared by Messrs Smith & Associates Solicitors, the applicant contends that the AAT applied an incorrect test in determining whether there was a causal link between Mr Jakab’s disease and his defence service; that the AAT did not have proper regard to the correct meaning of the term ‘aggravation’; that in the context of the causal link, the AAT did not properly consider the difficulties confronting Mr Jakab in obtaining appropriate clinical management of the disease; and that on the face of the material before the AAT, the AAT ought to have been satisfied that Mr Jakab suffered from the effects of the disease during a period of defence service and that it was worsened or aggravated by an inability to obtain appropriate clinical management during the period of service.  The written submissions also contend that the applicant’s service medical records demonstrate that the disease was present during the period of his service and that the AAT ‘inappropriately preferred the evidence of Professor Gibson and Dr Anning in reaching the decision that the applicant did not have the constellation of symptoms of Meniere’s Disease during his service’. 

5                     Plainly enough, it is not the role of the Court in determining an appeal from a decision of the AAT to conduct a de novo review of the factual findings of the AAT and form its own view of the weight of the evidence on the matters to be resolved.  I propose to deal with the application under s 44(1) of the AAT Act by addressing these questions of law.  First, did the AAT properly identify and apply the correct test for the determination of the questions before it?  Secondly, did the AAT properly have regard to s 119(1)(h) in reaching its decision?

6                     In addressing these questions and in formulating these reasons, I have had close regard to the ‘T documents’ and in particular the reports of the doctors not for the purpose of conducting a review of the facts but in order to consider fully and comprehensively all of the matters put to the Court by Mr Jakab in the context of the questions to be resolved.  In formulating these reasons although they are, of course, directed to the parties, I particularly have in mind Mr Jakab as a self‑represented litigant in the conduct of the appeal and in addressing the questions of law and factual matters relevant to the questions as formulated and in explaining the proper role of the Court in such an application. 

Considerations

7                     Sections 68(1), 69 and 70(1) of Part IV of the V E Act have the effect that the Commonwealth is liable to pay a pension by way of compensation to a person who has served continuous full time service as a member of the Defence Force after 6 December 1972 and before 7 April 1994; completed three years effective full time service and who has become incapacitated from a defence‑caused injury or a ‘defence‑caused disease’.  Section 70(5) provides that a disease contracted by a member of the Defence Force shall be taken to be a defence‑caused disease if the disease arose out of or was attributable to any defence service of the member (s 70(5)(a)) or if the disease resulting in incapacity of the member was suffered or contracted during any defence service but did not arise out of that service (s 70(5)(d)(i)) or the disease was suffered or contracted before the commencement of the period of defence service or the last period of defence service and the disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the member being service rendered after the member suffered or contracted the disease (s 70(5)(d)(ii)). 

8                     Mr Jakab served as a member of the Australian Army in the period 23 September 1963 to 22 September 1969.  Mr Jakab provided service as a member of the Royal Australian Air Force between 30 November 1971 and 10 January 1986.  Accordingly, Mr Jakab, subject to satisfying the requirements of the V E Act,has provided defence service as a member of the Royal Australian Air Force which would give rise to eligibility for a pension from the Commonwealth.  Meniere’s Disease is a recognised disease for the purposes of s 5D of the V E Act.  A reference to ‘incapacity from a defence‑caused disease’ is a reference to the effects of that disease and not a reference to the disease itself (s 5D(2)). 

9                     Section 120(4) of the V E Act provides that in making any determination or decision in respect of a matter arising under the Act (including a claim for a pension based upon incapacity from a defence‑caused disease under Part IV of the V E Act), the statutory standard to be applied by the decision‑maker is a standard of ‘reasonable satisfaction’ which adopts all civil standard (Repatriation Commission v Smith (1987) 15 FCR 327).  That section is to be understood having regard to s 120B of the V E Act which identifies the use to be made of a Statement of Principles in determining whether the decision‑maker might be reasonably satisfied that a person has become incapacitated from a defence‑caused disease for the purposes of the V E Act. 

10                  Section 120B applies to a claim made on or after 1 June 1994 under Part IV (s 120B(1)) which therefore relates to the claim made by Mr Jakab.  The Repatriation Medical Authority has established a Statement of Principles pursuant to s 196B(3) in respect of Meniere’s Disease.  That Statement of Principles (No. 78 of 2001, replacing Instrument 28 of 1997) seeks to do a number of things.  First, it recognises that Meniere’s Disease is a clinical condition characterised by recurrent attacks of episodic vertigo, fluctuating sensorineural hearing loss and tinnitus often associated with nausea and vomiting and a sense of fullness in the involved ear.  The condition includes conditions known as endolymphatic hydrops, delayed endolymphatic hydrops, Meniere’s syndrome and Lermoyez’s syndrome.  The term ‘vertigo’ derives from the Latin term vertere, ‘to turn’ and is understood as ‘a sensation of whirling and loss of balance, associated particularly with looking down from a great height, or caused by disease affecting the inner ear or the vestibular nerve; giddiness’ (The New Oxford Dictionary of English, 2001). 

11                  Secondly, the Statement of Principles seeks to distil conclusions based upon an analysis by the Repatriation Medical Authority of the available ‘sound medical‑scientific evidence’ as to those factors that can be demonstrated to be related to the cause of or material contribution to or aggravation of Meniere’s Disease and which can thus be related to service as a member of the Defence Force.  Thirdly, having conducted that evaluation, the Repatriation Medical Authority seeks to determine the factors that must exist before it can be said, on the balance of probabilities, that a person’s relevant service caused or materially contributed to or aggravated Meniere’s Disease. 

12                  Section 120B(3) relevantly provides that the decision‑maker in applying s 120(4) (as to reasonable satisfaction), is to be reasonably satisfied that a disease contracted by a person was defence‑caused only if the material before the decision‑maker raises the connection between the disease and some particular service rendered by the person; and there is in force a Statement of Principles determined under s 196B(3) that upholds the contention that the disease is, on the balance of probabilities, connected with that service.  Accordingly, the material before the decision‑maker must raise a connection between the disease and Mr Jakab’s service and the contention as to that connection must be one capable of being upheld by the Statement of Principles determined by the Repatriation Medical Authority under s 196B(3). 

13                  The determination made by the Repatriation Medical Authority by Instrument No. 78 of 2001 is that there is only one factor, based upon sound medical scientific evidence, that can be related to the cause of or a material contribution to or aggravation of Meniere’s Disease and which can be related to service as a member of the Defence Force and that factor ‘is inability to obtain appropriate clinical management for Meniere’s Disease’ (cl 4, Statement of Principles).  In this context, a reference to Meniere’s Disease must be understood as a reference to the effects of the disease and not a reference to the disease itself (s 5D(2)(b)). 

14                  Section 196B(3) addresses whether a disease can be related to defence service and the factor or factors determined by means of a Statement of Principles that must exist before it can be said, on the balance of probabilities, that a disease is connected with defence service.  Section 196B(14) provides that a factor causing, or contributing to, a disease is related to defence service if it was contributed to (to a material degree) by that service or was aggravated by that service (s 196B(14)(d)); alternatively, in the case of a factor causing, or contributing to a disease, it would not have occurred but for the person rendering that service (s 196B(14)(f)(i)); or it would not have occurred but for changes in the person’s environment consequent upon that person having rendered that service (s 196B(14)(f)(ii)).  Section 196B(14) makes it clear that a factor causing or contributing to a disease is related to service and s 196B(3) enables the Repatriation Medical Authority to determine those factors that must exist and which must be related to service before a disease is, on the balance of probabilities, connected with the circumstances of service. 

Mr Jakab’s contention of a connection

15                  Mr Jakab says that on 31 August 1976 he complained of vertigo manifested by dizziness and also complained of vomiting.  The Outpatient Clinical Record confirms a complaint of vomiting, diarrhoea and dizziness.  On 11 August 1979, Mr Jakab presented to the Medical Officer as confirmed in the Outpatient Clinical Record complaining of acute allergy reaction to a viral infection.  On 2 October 1979, Mr Jakab presented to the Medical Officer and complained of headaches and dizziness as confirmed in the Outpatient Clinical Record.  On 21 August 1980, Mr Jakab was admitted as an inpatient suffering from viral pericarditis suffering severe pain with dull ache.  Mr Jakab says that from this time he started to suffer, on and off, from vertigo albeit that it was initially only slight dizziness which later developed into more classical symptoms of vertigo; at the same time he started to suffer from tinnitus and fullness of the ear; the symptoms persisted and got worse and he started to also suffer from nausea which increased as time went on. 

16                  Mr Jakab says that he reported to the Air Force Medical Officer and complained of the symptoms but those symptoms were dismissed as being of no concern.  However, Mr Jakab says the symptoms persisted until 1995 (approximately five years after Mr Jakab suffered a stroke in 1990) when he suffered a severe attack with symptoms that were of such intensity medical attention was required.  Medical investigation then led to the diagnosis of Meniere’s Disease.  Mr Jakab says that Meniere’s Disease is affected by stress; as his stress levels have changed so has the intensity of the episodes of Meniere’s Disease; and that since ceasing work, the intensity and number of episodes of Meniere’s Disease has waned (see: Outpatients’ Medical Records, Statement Stefan Jakab and Attachments, 23 June 2003; Statements Stefan Jakab, Veterans’ Review Board, 25 June 2002; Statement of Facts and Contentions, Stefan Jakab (undated); Transcript of Evidence before AAT, 26 May 2005). 

17                  Mr Jakab contends that the onset of Meniere’s Disease was contributed to by the viral infection of 11 August 1979 and viral pericarditis on 21 August 1980 whilst at Butterworth Air Base in Malaysia.  Mr Jakab says that these viral infections contributed to the onset of the effects or symptoms of Meniere’s Disease evidenced by complaints of transient episodes of dizziness, tinnitus and fullness of the ear, even though Meniere’s Disease was not then diagnosed.  Mr Jakab contends that the failure to diagnose the condition as Meniere’s Disease evidenced by the effects of the condition on presentation to Air Force Medical Officers resulted in an inability on the part of Mr Jakab to obtain appropriate clinical management for the disease and thus the contention of a connection between the effects of the disease and Mr Jakab’s Defence Force service is upheld by the Statement of Principles.  As a result, Mr Jakab says he is entitled to a pension from the Commonwealth in respect of his incapacity (s 70(1) V E Act). 

18                  In essence, Mr Jakab contends that the events surrounding the onset of viral infection and viral pericarditis brought about an undiagnosed onset of Meniere’s Disease. 

19                  Accordingly, Mr Jakab says he contracted the disease during the period of defence service; by reason of the non‑diagnosis of the disease he was unable to obtain appropriate clinical management of the effects of the disease; and the inability to secure proper clinical management contributed to the effects of the disease in a material way or aggravated the disease.

The approach of the AAT

20                  The AAT considered the medical evidence going to each of the contentions of Mr Jakab against the background of the correct test determined by the legislation as discussed previously and the authorities (Repatriation Commission v Wedekind [2000] FCA 649; Lees v Repatriation Commission [2002] FCAFC 398 and a decision of the Tribunal, Re O’Brien and Repatriation Commission [2003] AATA 525).

21                  The AAT found that a constellation of symptoms, that is, manifest effects of Meniere’s Disease, must be present before a conclusion can be reached that clinical onset of the disease has occurred.  The AAT considered what it described as Mr Jakab’s lengthy history of symptoms the subject of his evidence before the Tribunal and concluded that the failure on the part of the medical practitioners to record important aspects of the symptoms identified by Mr Jakab, in their reports, was not simply a function of those doctors failing to ask the relevant questions of Mr Jakab that would have revealed the detailed sequence of clinical effects symptomatic of Meniere’s Disease but rather that Mr Jakab did not manifest all the necessary symptoms (the constellation of symptoms) that, manifest upon presentation now, would enable a diagnosis of Meniere’s Disease to be made [36], [37]. 

22                  That finding was open to the Tribunal on the evidence.  In reaching that conclusion, the Tribunal considered the background factual contentions; Mr Jakab’s evidence; the report of Dr Robert J Hall, Neurologist dated 5 July 1995; the report of Dr P Baratosy dated 21 October 1998; the report of Dr M A Menzies, Ear, Nose and Throat Surgeon, dated 27 April 2000; the report of Dr S M Hamwood dated 31 May 2000.  In each of these reports, the authors of the report record and give emphasis to symptoms emergent after the end of the period of Mr Jakab’s service.  For example, reference is made to the acute attack of Meniere’s Disease in 1995 (Dr Hall); the consequences of the stroke; the period of pressure disturbance in the right ear reported to Dr Hall in the previous 12 month period prior to the report of 5 July 1995; a five year history of right‑sided Meniere’s Disease reported to Dr Menzies and Dr Hamwood’s observation that Meniere’s Disease emerged some two years after a stroke as a secondary consequence to cerebral ischaemia in 1990. 

23                  No particular emphasis was reported by Mr Jakab to these doctors concerning his symptoms in 1979 or 1980, in the discussions each of them had with Mr Jakab. 

24                  The AAT also had regard to the reports of Professor Gibson, a Professor of Otolaryngology.  Professor Gibson concludes that the cause of Meniere’s Disease is multi‑factorial; is thought to be linked to viral infection; seems to have a demonstrated connection with a genetic disposition in sufferers to the disease; and although Mr Jakab contracted viral pericarditis during service, no connection exists in Professor Gibson’s view between the viral pericarditis suffered by the applicant and the onset of Meniere’s Disease, on the footing that Mr Jakab did not report symptoms which suggested a penetration of the virus to the inner ear so as to compromise the functioning of the ear and thus contribute to Meniere’s Disease.  Professor Gibson did not accept that any connection existed between any allergic reaction suffered by Mr Jakab in 1979 and the onset of the disease. 

25                  The AAT also had regard to the report and evidence of Dr F Anning (report dated 8 March 2005), Ear, Nose and Throat Specialist.  Dr Anning observed that Meniere’s Disease presents as an acute episode that is totally incapacitating just as the episode experienced by the applicant in 1995.  Dr Anning gave evidence that the disease is very difficult to diagnose; is unpredictable; can return after a lengthy period when the individual has been symptom‑free; the probable onset of the applicant’s Meniere’s Disease was in 1995; and could not have been diagnosed earlier nor treated earlier.  The AAT considered Dr Anning’s evidence in relation to an audiology report dated 10 February 1981 which showed that the applicant had no significant hearing loss.  Dr Anning noted, however, that the test adopted produces variable subjective results.  Dr Anning noted that hearing loss typical of Meniere’s Disease is manifest in low tones whereas Mr Jakab’s results in 1981 showed minor loss in the high tonic range. 

26                  Having considered all of the medical reports and evidence, the Tribunal reached these conclusions:

‘38.      The Tribunal accepts the evidence of Professor Gibson and Dr Anning that there was no connection between Meniere’s Disease and viral episodes or with an allergic reaction during service.  The Tribunal also accepts Dr Anning’s evidence that dizziness is a non‑specific symptom that can be explained by a number of medical conditions, and in the applicant’s case was better explained by the medical conditions identified at the time.  The Tribunal accepts Dr Anning’s evidence that the hearing loss recorded in 1981 was not related to the development of Meniere’s Disease.

39.       In applying the evidence in regard to the applicant’s circumstances to the test set out by Kenny J in Wedekind, and applied by the Tribunal in O’Brien, the Tribunal is reasonably satisfied that the applicant did not have the constellation of symptoms of Meniere’s Disease during his service.  Being so satisfied there is no need for the Tribunal to proceed to consider issues relating to clinical management of Meniere’s Disease.  For the claim to succeed, it is necessary for Meniere’s Disease to be present before the end of service:  O’Brien.  For the reasons given above, the Tribunal is reasonably satisfied that the condition was not present during service.  Therefore, the evidence, taken overall, does not point to factor 4 of the SoP for Meniere’s Disease being met (or the equivalent factor 5 in the earlier SoP) and the claim must fail.’

27                  These findings are both consistent with the medical evidence reviewed by the Tribunal and open to the Tribunal.  Although some features associated with or consistent with Meniere’s Disease were reported by Mr Jakab to the medical officers from time to time, during the period of Mr Jakab’s service, the AAT has relied upon the body of medical evidence so as to find that the necessary collection of symptoms were not present; those symptoms which were consistent with Meniere’s Disease were explained by the medical conditions at the time; and that no connection was demonstrated between Meniere’s Disease and the viral episodes relied upon by Mr Jakab.  Accordingly, Mr Jakab failed to establish that he suffered or contracted a disease during a period of defence service or prior to the last period of that service and that the disease was contributed to in a material degree or was aggravated by defence service. 

28                  In conducting an analysis of the factual matters, the AAT applied the correct statutory tests, addressed the correct questions and acted according to law.  The factual findings made were open to the Tribunal. 

29                  Mr Jakab further contends that in conducting an analysis of the facts and applying the legal tests, the AAT failed to have proper regard to the discharge by Mr Jakab of the standard of proof and failed to properly apply the statutory considerations arising out of s 119(1)(h). 

30                  That provision is in these terms.

‘(h)      Without limiting the generality of the foregoing, [the decision‑maker] shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:

            (i)         the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and

            (ii)        the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence has happened during the service of a veteran, or a member of the Defence Force or of a Peacekeeping Force, as defence by subsection 68(1) was not reported to the appropriate authorities.’

31                  The paragraph of the reasons of the AAT relied upon by Mr Jakab is this:

‘37.      The applicant now recalls symptoms during his service, however the Tribunal agrees with Dr Anning that memory can be unreliable when reporting symptoms that occurred a long time ago.  No medical practitioner had taken a history from the applicant where he refers to the lengthy history of symptoms occurring during defence service as he now states was present.  The Tribunal does not accept, as the applicant asks be accepted, that this was simply the result of doctors not asking him questions about his earlier experience of symptoms.  The Tribunal does not accept that the applicant had all the necessary symptoms during his service that would allow a diagnosis now of Meniere’s Disease during service.’

32                  Mr Jakab says that these observations of the Tribunal miss the point.  Mr Jakab says that he has a clear recollection of his symptoms during service; the symptoms were unpleasant and severe and thus made an enduring impression upon him and that his memory is not unreliable as to the symptoms even though they occurred a long time ago.  Mr Jakab’s contention based upon s 119(1)(h) seems to be that even if the AAT took the view that Mr Jakab’s memory may have been unreliable as to any aspect of the symptoms, it could nevertheless have relied upon s 119(1)(h) as a basis for reaching a conclusion that Mr Jakab suffered symptoms emblematic of Meniere’s Disease and thus discharged the onus of establishing the onset of Meniere’s Disease during service.  Accordingly, Mr Jakab says that the AAT ought not to have given weight and emphasis to the relatively short history of symptoms recorded by the medical practitioners in their reports.  In addition, Mr Jakab says that if the AAT was undecided as to the role or accuracy of Mr Jakab’s memory of the events, it failed to give weight to the ‘effects of the passage of time’ as required by s 119(1)(h) of the V E Act. 

33                  There are a number of things to say about this contention. 

34                  First, Mr Jakab had access to the outpatient medical records which contain a record of the complaints he made to the medical officers at the time evidencing the symptoms apparent to the medical officers at the time. 

35                  Secondly, as to other complaints of symptoms, Mr Jakab gave detailed evidence of his recollection of the symptoms, the severity of the symptoms and the combination of symptoms which he said demonstrated the onset of Meniere’s Disease.  Accordingly, this is not a case where Mr Jakab has poor recollection and was not able to obtain documents in support of his contentions.  Accordingly, Mr Jakab was not presented with any identified ‘difficulties’ concerning any identified fact, matter or circumstance attributable to the effects of the passage of time. 

36                  Thirdly, s 119 of the V E Act instructs the Repatriation Commission (and in consequence the AAT in conducting a review) that the decision‑maker is not bound to act in a formal manner and is not bound by formal rules of evidence.  The decision‑maker may inform himself or herself on any matter in such manner as the decision‑maker thinks just (s 119(1)(f)).  However, a provision such as s 119(1)(h) does not make out a case by enabling the decision‑maker to reach a finding not supported by the evidence.  In this case, the medical evidence did not support the proposition that the necessary conjunction of symptoms were present in order to lead the decision‑maker to a proper conclusion that Mr Jakab had contracted the disease at the relevant time. 

37                  Fourthly, Mr Jakab was able to articulate to the medical practitioners and to the Tribunal his precise recollection of the collection of symptoms he says he suffered at the various dates.  Mr Jakab was also able to place the history of those symptoms in a proper chronology by reference to the relevant documents.  Mr Jakab was in a position to engage with the medical practitioners, both general practitioners and medical practitioners experienced in the disciplines relevant to the disease and discuss the extent of the symptoms and their onset.  It is clear from the reasoning of the Tribunal, that the AAT had regard to the engagement between Mr Jakab and the medical practitioners, the chronology of the symptoms recounted by Mr Jakab to the medical practitioners and the weight and emphasis to be given to the chronology of clinical events in making findings as to the onset of the disease.  It is clear therefore that the Tribunal had regard to and took account of the effects of the passage of time. 

38                  Fifthly, the fundamental criticism Mr Jakab makes of the AAT is that it preferred a view of the evidence which led it to find an onset of symptoms and thus the contraction of Meniere’s Disease at a much later date than Mr Jakab contends for.  The AAT reached that conclusion in part in reliance upon matters going to recollection.  In other words, the AAT was simply not satisfied as to the contended primary facts that symptoms of Meniere’s Disease were manifest during the period of service, on all the evidence.  Mr Jakab did not fail to establish his contention because of the effects of the passage of time with the result that the AAT ought to have called in aid s 119(1)(h) of the V E Act.  Mr Jakab failed in discharging the standard of proof because the weight of evidence, in the view of the AAT, was inconsistent with a conclusion that the necessary symptoms of Meniere’s Disease were present during the period of service.  That conclusion was open to the AAT. 

39                  Importantly, the section does not operate so as to strengthen the case or a contention of an applicant by lowering the threshold or standard of proof required by s 120 of the V E Act for establishing the clinical onset of the effects of Meniere’s Disease especially in circumstances where the applicant contends for a demonstrated good recollection of each facet of the symptoms suffered over the period under examination.  An appeal is not simply a process by which an alternative view of the evidence might be established.  This is not a case where there is no evidence to support the conclusions of the AAT and no error of law is demonstrated. 

40                  The applicant has raised two further matters. 

41                  The first is a subset of the matters previously discussed, namely, that the reference to the term ‘constellation of symptoms’ is inappropriate as there is, in truth, a ‘trilogy of symptoms’ defining Meniere’s Disease and the applicant contends that each of those symptoms were present during the period of his service.  The AAT identified on the medical evidence before it the symptoms required to be present in order to accept the presence of Meniere’s Disease during the period of service.  The Tribunal reached the findings reflected in paragraphs [36], [37], [38] and [39] and those findings were open to it. 

42                  The third and final ground is that the Tribunal acted selectively in evaluating and relying upon the evidence and that the applicant ought to have been sent for further testing of his hearing loss.  This contention does not raise any question of law for resolution nor does it identify any error of law.  The role of the Tribunal was to consider the evidence before it in the context of the review of the primary application.  The AAT properly conducted the review function. 

43                  Accordingly, the appeal by Mr Stefan Jakab by way of an application pursuant to s 44(1) of the AAT must be dismissed. 

44                  Since I have not heard Mr Jakab on the question of costs, I propose to reserve the resolution of the question of costs and make the following directions.  Mr Jakab is to file and serve by 4.00pm, Tuesday, 19 June 2007 any comments by letter or submissions he wishes to make as to whether an order ought to be made that he pay the costs of the respondent of and incidental to the appeal.  The respondent is to file and serve within seven days thereafter, any submissions in relation to the question of the costs of and incidental to Mr Jakab’s application. 

45                  The Court will then determine the question of costs on the papers. 

Associate:

Dated:         13 June 2007