Beveridge and Repatriation Commission - [2005] AATA 962

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 962
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/724

VETERANS' APPEALS DIVISION
)

Re KEVIN BEVERIDGE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr RG Kenny, Member
Date3 October 2005
PlaceBrisbane

Decision

The Tribunal:

(a)      affirms the decision under review in relation to alcohol dependence;

(b) sets aside the decision under review in relation to post traumatic stress disorder and substitutes its own decision that post traumatic stress disorder is war-caused in accordance with section 9 of the Veterans’ Entitlements Act 1986 (the Act); that Mr Beveridge is            entitled to receive a pension under the Act for any incapacity            associated with that condition from and including 19 December            2002; and that the matter of assessment be remitted to the            Repatriation Commission.

.....................[Sgd].......................
RG Kenny
  Member

CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service with Royal Australian Navy – post traumatic stress disorder – alcohol dependence - application of Statements of Principles – reasonable hypothesis of relevant relationship to service not raised for alcohol dependence – decision affirmed - reasonable hypothesis of relevant relationship to service raised for post traumatic stress disorder – condition war-caused – decision set aside – assessment of rate of pension remitted to Repatriation Commission
Veterans’ Entitlements Act 1986 ss 6C, 14, 19, 21A, 22, 69, 120, 120A, 177
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Deledio (1998) 83 FCR 82
Sly v Repatriation Commission [2004] AATA 958
White v Repatriation Commission [2004] FCA 633
Woodward v Repatriation Commission [2003] FCAFC 160
Repatriation Commission v Stoddart [2003] FCAFC 300
Constable v Repatriation Commission [2005] FCA 928
Re Robertson v Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Lees v Repatriation Commission (2002) 125 FCR 331
REASONS FOR DECISION

3 October 2005 Mr RG Kenny, Member

Background
1. Kevin Beveridge (the applicant) served in the Royal Australian Navy (RAN) from 1961 to 1976. His service included a period on HMAS Perth in 1970 and 1971 in South Vietnamese waters and he now contends that he suffers health problems that are related to events that occurred during that time. On 19 March 2003, he lodged a claim for acceptance by the Repatriation Commission (the respondent) of “substance abuse”, “generalised anxiety disorder” and “hearing loss and tinnitus” as being related to his service. That claim was made in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act)
2. On 29 August 2003, the respondent determined that Mr Beveridge suffers from bilateral sensori-neural hearing loss with tinnitus which was service-related. It assessed pension at 40% of the general rate under sections 21A and 22 of the Act for associated incapacity. It also determined that he suffers from alcohol dependence and post traumatic stress disorder but rejected his claim that these conditions were service-related. On 18 August 2004, the Veterans’ Review Board affirmed the decision in relation to post traumatic stress disorder and alcohol dependence, set aside 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 Beveridge and Repatriation Commission

Details

AGLC: Beveridge and Repatriation Commission [2005] AATA 962
Case: [2005] AATA 962
Decision Date: 3 October 2005

CaseChat Overview and Summary

Beveridge sought review of a decision of the Repatriation Commission concerning entitlement to a disability pension for post traumatic stress disorder and alcohol dependence. The case was heard by the Administrative Appeals Tribunal, which had to decide whether the relevant conditions were war-caused in accordance with the Veterans’ Entitlements Act 1986. The Tribunal considered the relevant statements of principles and whether a reasonable hypothesis of a relevant relationship between the service and the conditions could be raised.

The Tribunal examined whether a reasonable hypothesis could be raised that Beveridge’s alcohol dependence was related to his service. The Tribunal found that such a hypothesis could not be raised and affirmed the Commission’s decision that Beveridge was not entitled to a pension for that condition. Regarding the post traumatic stress disorder, the Tribunal found that a reasonable hypothesis could be raised, and that the condition was therefore war-caused. The Tribunal set aside the Commission’s decision in relation to post traumatic stress disorder and substituted its own decision.

The Tribunal held that Beveridge was entitled to a pension for any incapacity associated with his post traumatic stress disorder from 19 December 2002. The Tribunal set aside the Commission’s decision and remitted the matter to the Commission to assess the appropriate rate of pension.

The orders of the Tribunal were that the decision of the Commission in relation to alcohol dependence be affirmed, and that the decision in relation to post traumatic stress disorder be set aside and replaced with the Tribunal’s own decision. The matter of assessment was remitted to the Commission.

Orders

Orders of the court

The Tribunal:

(a) affirms the decision under review in relation to alcohol dependence;

(b) sets aside the decision under review in relation to post traumatic stress disorder and substitutes its own decision that post traumatic stress disorder is war-caused in accordance with section 9 of the Veterans’ Entitlements Act 1986 (the Act); that Mr Beveridge is entitled to receive a pension under the Act for any incapacity associated with that condition from and including 19 December 2002; and that the matter of assessment be remitted to the Repatriation Commission.

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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