Bain and Repatriation Commission - [2008] AATA 314

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL
No: N 200600865

General Administrative Division
Re: Allan Bain
Applicant

And: Repatriation Commission
Respondent

DIRECTION [2008] AATA 314
TRIBUNAL:             Ms Robin Hunt, Senior Member
  Dr Ion Alexander, Member
DATE:                      30 April 2008
PLACE:                   Sydney

Pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, the tribunal directs the Registrar to alter the text of the decision in this application as follows:

Reference to “HMAS Melbourne” and “Melbourne” in paragraphs 1 and 38 respectively, should be read as “HMAS Sydney”.

Reference to “depth charges” in paragraph 45 should be read as “scare charges”.

.................[Sgd]....................
Ms Robin Hunt
Senior Member

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 314
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/865

VETERANS' APPEALS DIVISION )

Re ALLAN JOHN BAIN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member
Dr Ion Alexander, Member
Date17 April 2008
PlaceSydney

Decision
We set aside the decision under review, in part, finding the applicant does suffer war-caused post traumatic stress disorder, psoriasis, ischaemic heart disease and gastro-oesophageal reflux disease. We affirm the decision that the applicant does not suffer war-caused alcohol abuse and/or alcohol dependence.

.…….……[Sgd]….............
Ms Robin Hunt
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant served in Royal Australian Navy – rendered operational service in 1972 – applicant suffers from several conditions – Statements of Principles (SoPs) – material before Tribunal raises hypothesis that several conditions connected with operational service – decision under review affirmed in part.
Veterans’ Entitlements Act 1986 (Cth) ss 5D(1), 7(1), 9(1), 120, 120A and 196B(2)
Statement of Principles concerning post traumatic stress disorder, Instrument No. 3 of 1999, as amended by Instrument No. 54 of 1999 and Instrument No. 5 of 2008
Statement of Principles concerning ischaemic heart disease, Instrument No. 53 of 2003, as amended by Instrument No. 9 of 2004 and Instrument No. 89 of 2007
Statement of Principles concerning psoriasis, Instrument No. 56 of 2002
Statement of Principles concerning gastro-oesophageal reflux disease, Instrument No. 11 of 2005
Statement of Principles concerning alcohol dependence and alcohol abuse, Instrument No. 17 of 2008
Fogarty v Repatriation Commission (2003) 37 AAR 363
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Stoddart (2003) 134 FCR 392
Stoddart and Repatriation Commission [2002] AATA 791
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION

17 April 2008 Ms Robin Hunt, Senior Member
Dr Ion Alexander, Member

Introduction

1. The applicant, Allan John Bain, served in the Royal Australian Navy from 11 March 1967 to 13 November 1974. Part of his navy service was “operational service”, within the meaning of the Veterans’ Entitlements Act 1986 (the Act). Operational service occurred on board HMAS Melbourne during 1 November 1972 to 30 November 1972.
2. The applicant suffers from multiple health problems. On 20 May 2005, he…

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 Bain and Repatriation Commission

Details

AGLC: Bain and Repatriation Commission [2008] AATA 314
Case: [2008] AATA 314
Decision Date: 17 April 2008

CaseChat Overview and Summary

In this case, the applicant, who served in the Royal Australian Navy and rendered operational service in 1972, sought a review of a decision by the Repatriation Commission regarding his eligibility for various veterans’ entitlements. The applicant claimed that his several medical conditions were connected to his service, and thus qualified for disability pension. The Commission upheld his claim for certain conditions but denied others, leading to this judicial review.

The primary legal issues revolved around whether the applicant’s medical conditions, namely post traumatic stress disorder, psoriasis, ischaemic heart disease, gastro-oesophageal reflux disease, and alcohol abuse/dependence, were connected to his operational service. The Court had to determine if the evidence supported a causal link between the service and each condition, as required under the Veterans’ Entitlements Act 1986.

The Court examined the evidence and found that while the applicant did suffer from war-caused post traumatic stress disorder, psoriasis, ischaemic heart disease, and gastro-oesophageal reflux disease, there was insufficient evidence to support a connection with his alcohol abuse or dependence. The material before the Tribunal did raise a hypothesis regarding the connection of some conditions to his service, but the evidence did not meet the legal threshold for establishing causation.

The Court set aside the decision in part, affirming that the applicant did suffer from war-caused post traumatic stress disorder, psoriasis, ischaemic heart disease, and gastro-oesophageal reflux disease. However, it upheld the decision that he did not suffer from war-caused alcohol abuse or alcohol dependence.

Orders

Orders of the court

We set aside the decision under review, in part, finding the applicant does suffer war-caused post traumatic stress disorder, psoriasis, ischaemic heart disease and gastro-oesophageal reflux disease. We affirm the decision that the applicant does not suffer war-caused alcohol abuse and/or alcohol dependence.

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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17 April 2008	Ms Robin Hunt, Senior Member Dr Ion Alexander, Member
Introduction