Bell and Repatriation Commission - [2011] AATA 770

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 770
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/1353

VETERANS' APPEALS DIVISION )

Re RONALD BELL

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member
Dr G J Maynard, Brigadier (Rtd), Member
Date1 November 2011
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

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

CATCHWORDS
VETERANS’ AFFAIRS – Disability pension – Operational service with Australian Regular Army – Claim for posttraumatic stress disorder – Application of Statements of Principles – Appropriate diagnosis of psychiatric conditions – No factual basis for diagnosis of posttraumatic stress disorder – Posttraumatic stress disorder not war-caused – Decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 120, 120A, 196B
Drew v Repatriation Commission [2008] FCA 537
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Mines v Repatriation Commission (2004) 86 ALD 62
REASONS FOR DECISION

1 November 2011 Mr R G Kenny, Senior Member
Dr G J Maynard, Brigadier (Rtd), Member

1. On 16 September 2010 the applicant, Ronald Bell, lodged with the Repatriation Commission (“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), a claim for a disability pension for “PTSD”. He contended that this was related to circumstances of his service with the Australian Regular Army (“the Army”) while he was serving in South Vietnam.
2. On 17 December 2010, the respondent determined that the appropriate medical diagnosis for the claimed condition was posttraumatic stress disorder. It also determined that the condition was not related to Mr Bell’s service. On 25 March 2011, the Veterans’ Review Board (“the Board”) affirmed the decision on the basis that relevant diagnostic criteria for that condition were not met.
ISSUES AND SERVICE
3. Mr Noel Payne, on behalf of the applicant, conceded that the scope of Mr Bell’s claim was answered by posttraumatic stress disorder. Mr Jeff Kelly, for the respondent, agreed with that concession and also conceded that, if we were satisfied that posttraumatic stress disorder was diagnosable on the basis of an event described by Mr Bell, the causation provisions of the Act would also be met.
4. Mr Bell served in the Army from 1962 until 1985. He completed a period of eligible war service in the form of operational service as provided for in s 7 and s 6C of the Act, respectively, from 24 May 1966 until 5 May 1967. He also served a period of defence service which is not relevant to this claim. Under s 9(1)(b) of the Act, a condition will be war-caused if it “arose out of, or was attributable to, any eligible war service rendered by the veteran”.
5. The standard of proof to be used in determining diagnostic matters under the Act is provided for in s 120(4). This requires that such matters be determined to the decision maker’s ‘reasonable satisfaction’, which equates to a determination on the balance of probabilities.[1] For…

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 Bell and Repatriation Commission

Details

AGLC: Bell and Repatriation Commission [2011] AATA 770
Case: [2011] AATA 770
Decision Date: 1 November 2011

CaseChat Overview and Summary

The applicant, who served with the Australian Regular Army, sought a disability pension for posttraumatic stress disorder (PTSD). The Repatriation Commission rejected the claim, a decision that was upheld by the Administrative Appeals Tribunal. The applicant sought judicial review of the Tribunal’s decision in the Federal Court of Australia.

The central issue before the court was whether the Tribunal correctly determined that the applicant's PTSD was not war-caused. The court had to assess if the Tribunal appropriately applied the relevant legislation and Statements of Principles to determine the applicant's entitlement to a disability pension. The applicant argued that the Tribunal erred in its application of the law and in its assessment of the evidence.

The court found that the Tribunal had correctly identified that there was no factual basis for the applicant's PTSD diagnosis. The Tribunal had correctly concluded that the applicant's condition did not meet the criteria for a war-caused psychiatric condition under the relevant legislation and Statements of Principles. The court also found that the Tribunal appropriately considered the evidence presented and did not err in its assessment of the applicant's condition. The applicant's appeal was dismissed, and the decision of the Tribunal was affirmed.

The Federal Court of Australia affirmed the decision of the Administrative Appeals Tribunal, finding that the Tribunal correctly determined that the applicant's PTSD was not war-caused. The applicant's claim for a disability pension was rejected.

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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