Booth and Repatriation Commission - [2009] AATA 129

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 129
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2811

VETERANS' APPEALS DIVISION )

Re JOHN BOOTH

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr K S Levy, RFD, Senior Member
Dr J B Morley, RFD, Member
Date2 March 2009
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
.................[Sgd].............................
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – Whether Generalised Anxiety Condition was war-caused or defence-caused – Whether Applicant meets Statement of Principles – Decision affirmed.
Veterans’ Entitlements Act 1986 (Cth), ss 9, 70, 120(1), 120(3), 120A, 196B(2)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Lees v Repatriation Commission (2002) 125 FCR 331
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mines v Repatriation Commission (2004) 86 ALD 62
Re Jenkin and Repatriation Commission (1997) 47 ALD 721
Repatriation Commission v Deledio [1998] 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
White v Repatriation Commission [2004] FCA 633
REASONS FOR DECISION

2 March 2009 Dr K S Levy, RFD, Senior Member
Dr J B Morley, RFD, Member

INTRODUCTION

1.      On 22 August 2007, Mr Booth made application under the Veterans’ Entitlements Act 1986 (“the Act”) for recognition of the condition of post traumatic stress disorder (“PTSD”), on the basis of anxiety and depression. On 24 August 2007, the Repatriation Commission determined that the correct diagnosis for the condition claimed is Generalised Anxiety Disorder. It further determined that this condition was not war-caused or defence-caused. That decision was reviewed by the Veteran’s Review Board, but rejected on 27 May 2008. Mr Booth now makes application to this Tribunal.
ISSUES
2.      The parties agree that the correct diagnosis is Generalised Anxiety Disorder. However, they disagree about whether its origin is due to Mr Booth’s defence service or operational service. The issue for determination is whether Mr Booth’s experiences during operational service satisfy the requirements of the relevant Statement of Principles.
BACKGROUND
3.      Mr Booth enlisted in the Royal Australian Air Force (“RAAF”) on 7 June 1961 and was discharged on 22 September 1981, a period of a little over 20 years. He was employed in the RAAF as a cook. After discharge, the Applicant was employed by Queensland Health for approximately 22 years; it appears that he has since retired from that organisation. He was 17 years of age when he enlisted and, from the age of 18, served on operational service when he was posted in 1962 to the RAAF base at Butterworth, Malaysia. He was attached to the Base Squadron at Ubon, Thailand, for the first 3 months of that posting and then served at Butterworth.
4.      Despite Mr Booth being employed as a cook, the first three months of his initial posting was spent serving as a steward on flights between Butterworth, Cambodia and Thailand. These flights generally hosted ambassadors from other countries, such as Laos. Mr Booth indicated some level of anxiety about Chinese radar being able to detect aircraft. 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 Booth and Repatriation Commission

Details

AGLC: Booth and Repatriation Commission [2009] AATA 129
Case: [2009] AATA 129
Decision Date: 2 March 2009

CaseChat Overview and Summary

The case of Booth and Repatriation Commission was heard by the Administrative Appeals Tribunal, where the applicant sought a review of a decision made by the Repatriation Commission regarding his eligibility for a war-related disability pension. The applicant, who served in the Australian Defence Force, contended that his generalised anxiety condition was caused by his service, thereby qualifying him for the pension under the Veterans’ Entitlements Act 1986. The Commission, however, found that the applicant's condition was not war-caused or defence-caused, leading to the denial of his pension claim.

The primary legal issues before the Tribunal were whether the applicant's generalised anxiety condition was indeed caused by his service in the Defence Force, and whether the applicant met the criteria set out in the relevant Statement of Principles. The Tribunal had to interpret the provisions of the Veterans’ Entitlements Act, particularly sections 9, 70, 120(1), 120(3), 120A, and 196B(2), to determine the applicant's eligibility for the pension. The Tribunal also needed to consider relevant case law, including Benjamin v Repatriation Commission, Lees v Repatriation Commission, and others, to ensure a consistent application of the law.

The Tribunal carefully examined the evidence presented by the applicant and the Repatriation Commission. It assessed the medical reports, the applicant's service records, and the relevant legal precedents. The Tribunal found that the applicant's condition did not meet the criteria established in the Statement of Principles for war-caused or defence-caused conditions. The evidence did not establish a sufficient causal link between the applicant's service and his generalised anxiety condition. Consequently, the Tribunal affirmed the Commission's decision that the applicant was not eligible for the war-related disability pension.

In affirming the decision under review, the Tribunal upheld the Repatriation Commission's finding that the applicant's generalised anxiety condition was not war-caused or defence-caused. The Tribunal determined that the applicant did not meet the requirements set out in the Statement of Principles. Therefore, the application for review was dismissed, and the decision of the Repatriation Commission remained unchanged.

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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2 March 2009	Dr K S Levy, RFD, Senior Member Dr J B Morley, RFD, Member
INTRODUCTION