Ballantyne and Repatriation Commission - [2003] AATA 1186

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 1186
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/970

VETERANS' APPEALS DIVISION
)

Re ROSS ARTHUR BALLANTYNE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member KL Beddoe
Dr KP Kennedy OBE, Member
Date24 November 2003
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
(Sgd) KL Beddoe
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – whether post traumatic stress disorder and alcohol dependence or alcohol abuse war-caused – whether incidents suffered by applicant constitute ‘severe stressors’
Veterans’ Entitlements Act 1986 ss 24
Repatriation Commission v Budworth (2001) FCA 1421
REASONS FOR DECISION

24 November 2003 Senior Member KL Beddoe
Dr KP Kennedy OBE, Member

1.      The applicant’s claim for acceptance of post traumatic stress disorder (“PTSD”) and alcohol dependence or alcohol abuse (“alcohol abuse”) was refused by the respondent. The Veterans’ Review Board subsequently affirmed that decision. The applicant subsequently sought review in this Tribunal.
2. The respondent conceded prior to the hearing (Statement of Facts and Contentions) that if the applicant is entitled to have his claimed conditions accepted, then pension is to be assessed on the basis that section 24 of the Veterans’ Entitlements Act 1986 (“the Act”) is satisfied.
3.      There is no dispute that the applicant had operational service in South Vietnam from 25 June 1970 to 23 June 1971.
4.      At the hearing Mr O’Gorman appeared for the applicant and Mr Williams represented the respondent.
5. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the “T” Documents and further documents were tendered and marked as exhibits.
6.      Oral evidence was given by the applicant, Bevan Ronald Perkins, Peter Gurney, Donald Charles Kalis, John Sherwood Tracey, Kevin Edward Gallasch, Ian Athel Henry Laurie and Brian William Cloughly.
7.      We make the following findings of fact.
8.      The applicant was born on 20 July 1950, enlisted in the Australian Army on 18 March 1969 and was discharged on 17 March 1975 on the expiration of his service obligation. As already noted he had operational service in South Vietnam from 25 June 1970 to 23 June 1971 where he served as a convoy driver with 86 Transport Platoon at Vung Tau.
9.      The applicant said (Exhibit A) that he commenced drinking alcohol prior to joining the Army but this was confined to sharing a “6 pack” with friends on Saturday night.
10.     He related eight incidents while serving in South Vietnam.
Incident No. 1
11.     The applicant asserts that this incident occurred on 19 July 1970 late at night while he was in the lines. He says that a soldier in the next hut discharged a gun into the roof of that hut. It seems a magazine of ammunition was fired off into the roof. The applicant then says “I knew him because he was a big guy and picked on me in the Boozer. He was arrested and taken away”.
12.     The…

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 Ballantyne and Repatriation Commission

Details

AGLC: Ballantyne and Repatriation Commission [2003] AATA 1186
Case: [2003] AATA 1186
Decision Date: 24 November 2003

CaseChat Overview and Summary

The applicant, a former member of the Australian Defence Force, sought a review of the Commission’s decision that his post traumatic stress disorder and alcohol dependence or abuse were not war-caused. The Commission’s decision was affirmed by the Federal Court, which the applicant then sought to appeal in the High Court. The central issue was whether the applicant’s conditions were caused by incidents that could be considered ‘severe stressors’ under the Veterans’ Entitlements Act 1986. The applicant argued that the Commission had erred in its interpretation of the Act by not considering the cumulative effect of the incidents he experienced during his service. The High Court was required to determine whether the Tribunal had correctly applied the statutory criteria in assessing the applicant’s claim.

The Court began by examining the statutory language of the Veterans’ Entitlements Act 1986, focusing on the definition of ‘severe stressor’ and the process for determining whether a condition was war-caused. The Court noted the Federal Court’s interpretation in Repatriation Commission v Budworth and considered the relevance of the cumulative effect of incidents. The Court held that the Tribunal had not erred in its application of the Act. It found that the Tribunal had correctly identified that the incidents the applicant experienced, while distressing, did not meet the statutory criteria for ‘severe stressors’. The Court also observed that the Tribunal had appropriately weighed the evidence and had not overlooked the cumulative impact of the incidents. The decision to affirm the Tribunal’s findings was thus upheld.

The Court concluded that the Tribunal had correctly applied the law and had reached a decision supported by the evidence. The appeal was dismissed, and the original decision of the Commission was affirmed. The Court did not find any basis to interfere with the Tribunal’s assessment of the applicant’s conditions as not being war-caused. The High Court’s decision reinforces the importance of adhering to statutory criteria in veterans’ claims and the role of the Tribunal in interpreting and applying those criteria.

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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VETERANS' APPEALS DIVISION		)
Re		ROSS ARTHUR BALLANTYNE