Benjamin v Repatriation Commission

[2001] FCA 522

FEDERAL COURT OF AUSTRALIA

Benjamin v Repatriation Commission [2001] FCA 522

VETERANS’ AFFAIRS – appeal from Administrative Appeals Tribunal – claim for disability pension – determination whether veteran contracted disease as claimed – relevance of diagnostic criteria in definition of disease in Statement of Principles – standard of proof – whether obliged to determine other conditions not the subject of the pension claim were war-caused.

Veterans’ Entitlements Act 1986 (Cth) ss 120(1), (3) and (4), s120A(4)

Repatriation Commission v Cooke (1998) 90 FCR 307 applied.

DAVID HEDLEY JEFFERY BENJAMIN v REPATRIATION COMMISSION

N 963 OF 2000

WHITLAM J
SYDNEY
30 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 963 OF 2000

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	DAVID HEDLEY JEFFREY BENJAMIN APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	30 MAY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

2.   The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 963 OF 2000

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	DAVID HEDLEY JEFFREY BENJAMIN APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	WHITLAM J
DATE:	30 MAY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) with respect to a claim made by the applicant for a pension under Part II of the Veterans’ Entitlements Act 1986 (“the Act”). The alleged errors of law concern two aspects of the way in which the Tribunal determined the question whether the applicant had contracted a disease for the purposes of his claim. They arise out of the use made by the Tribunal of a Statement of Principles determined under s 196B(2) of the Act.

2. The applicant was born on 13 June 1940.  He served in the Navy from 1957 to 1969 and rendered several periods of “operational service” in Vietnam. 

3. On 19 September 1997 the relevant claim was lodged with the Department of Veterans’ Affairs.  In the claim form the applicant described his disability as post traumatic stress disorder (“PSTD”).  The form was accompanied by a diagnosis of such condition provided by his local GP, Dr KG Dunstan.  At this stage the applicant had not consulted a psychiatrist.  However, Dr Dunstan referred him to a psychiatrist, Dr Karen Reinhardt, whom he saw for the first time on 27 October 1997.  Since that time the applicant has evidently remained under her care.

4. Dr Reinhardt diagnosed the applicant as suffering from what she described as “Chronic Post Traumatic Stress Disorder and Alcohol Dependence”.  On 26 March 1998 a delegate of the respondent (“the Commission”) determined that his PTSD and alcohol dependence were not war-caused and refused his claim.

5. The applicant applied for a review of the delegate’s decision by the Veterans’ Review Board…