Avey and Repatriation Commission - [2011] AATA 152

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 152
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3563

VETERANS' APPEALS DIVISION )

Re RICHARD AVEY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member K S Levy, RFD
Date8 March 2011
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

...............[Sgd]...............................
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – Benefits and entitlements – Disability pension – Applicant had operational service with Royal Australian Navy – Diagnoses of post-traumatic stress disorder and depression – Statement of Principles not satisfied – Hypothesis of applicant not reasonable – Decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 5, 6, 9, 13, 120, 120A, 196B
Evidence Act 1995 (Cth) s 79
Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 46 ACSR 504
Border v Repatriation Commission (No 2) (2010) FCA 1430
Bushell v Repatriation Commission (1992) 175 CLR 408
Makita v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Mines v Repatriation Commission [2004] FCA 1331; (2004) 86 ALD 62
Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463; (2000) 120 FCR 146
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82
REASONS FOR DECISION

8 March 2011 Senior Member K S Levy, RFD

INTRODUCTION
1.      The applicant is Mr Richard Avey, who served in the Royal Australian Navy (“RAN”) from 10 July 1963 to 27 January 1971. He had three periods of operational service during that period:
·     In the Far East Strategic Reserve from 17 April 1966 to 14 September 1966;
·     In South Vietnam waters from 27 March 1968 to 26 April 1968; and
·     In South Vietnam waters from 21 May 1968 to 13 June 1968.

2.      Mr Avey has the conditions of bilateral sensorineural hearing loss with tinnitus and malignant melanoma of the back and face, which are recognised as service-related disabilities. In January 2007, Mr Avey also applied for recognition of the conditions of lower back pain, knee pain (left and right), tinea, post-traumatic stress disorder (“PTSD”) and depression. On 17 May 2007, the Repatriation Commission decided that those conditions were not war-caused.
3.      He appealed that decision to the Veterans’ Review Board (“VRB”). In view of approval of an increase to his rate of pension to 60% of the general rate from 22 July 2008, Mr Avey sought to not proceed with a review of the matter of assessment. The VRB also consented to the withdrawal of the application for review in respect of lumbar spondylosis and osteoarthrosis of both knees.[1] The applications in respect of PTSD and depression remained on foot, which the VRB determined on 28 May 2010 to affirm the original decision made by the Repatriation Commission.[2] Mr Avey now appeals to this Tribunal for a further review of that decision.
[1] T-Document 4, Folios 151 – 152.
[2] T-Document 4, Folios 191 – 199.
ISSUES
4.      The parties raised…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Avey and Repatriation Commission

Details

AGLC: Avey and Repatriation Commission [2011] AATA 152
Case: [2011] AATA 152
Decision Date: 8 March 2011

CaseChat Overview and Summary

Avey brought an appeal against a decision made by the Repatriation Commission, contesting their refusal to award him a disability pension. The case was heard and determined in the Administrative Appeals Tribunal of Australia. The primary issue before the Tribunal was whether the applicant had established that his conditions of post-traumatic stress disorder and depression arose from his service in the Royal Australian Navy, as required for the award of a disability pension. The Tribunal also had to consider whether the applicant's hypothesis concerning the origin of his conditions was reasonable and supported by the evidence.

The Tribunal examined the evidence and submissions presented by both parties, including medical reports and the applicant's personal account. The Tribunal concluded that the Statement of Principles regarding the conditions in question did not encompass the applicant's circumstances, and that the applicant had not demonstrated that his conditions arose from his service. Furthermore, the Tribunal found that the applicant's hypothesis concerning the origin of his conditions was not reasonable, as it was not supported by the evidence and was inconsistent with the medical evidence. Consequently, the Tribunal determined that the Repatriation Commission's decision was lawful and should be affirmed.

The Tribunal's reasoning was grounded in the statutory criteria for the award of a disability pension, which required a nexus between the applicant's conditions and his service. The Tribunal found that the applicant had not met this criterion and that his hypothesis was not substantiated. The Tribunal also noted the importance of the medical evidence in determining the origin of the applicant's conditions, and that the applicant's personal account was not sufficient to establish the required connection.

In conclusion, the Tribunal affirmed the decision of the Repatriation Commission, finding that the applicant had not established the necessary criteria for the award of a disability pension. The Tribunal's decision was based on the lack of evidence to support the applicant's hypothesis and the absence of a nexus between his conditions and his service in the Royal Australian Navy. The Tribunal's determination upheld the decision under review, leaving the applicant without the disability pension he sought.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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