Boother and Repatriation Commission - [2003] AATA 195

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 195
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1309

VETERANS’ APPEALS DIVISION )

Re ELVA BOOTHER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen
Rear Admiral A Horton AO RAN (Rtd), Member
Date28 February 2003
PlaceSydney

Decision The decision under review is affirmed.
(Sgd) M D ALLEN
__________________
Presiding Member

CATCHWORDS
VETERNS’ ENTITLEMENTS - Claim PTSD led to deceased veteran's suicide - Necessity of complying with SoP for both suicide and PTSD - Rejection of claim that Tribunal can depart from criteria mandated by SoP - No evidence to support diagnostic factors in Statement of Principles.
Veterans' Entitlement Act 1986 - s6C, s120, s120A
McKenna v Repatriation Commission 86 FCR 144
Repatriation Commission v Deledio 83 FCR 82
Benjamin v Repatriation Commission 34 AAR 270
Bull v Repatriation Commission 34 AAR 326
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Gosewinckel 59 ALD 690
Re Budworth v Repatriation Commission [2000] AATA 127
Budworth v Repatriation Commission 63 ALD 422
REASONS FOR DECISION

Senior Member M D Allen
Rear Admiral A Horton AO RAN (Rtd), Member

1.      The Applicant is the widow of Francis Edward Boother, deceased, who died on the 14^th day of August 1985 by reason of a self-administered gunshot wound.
2.      On 12 October 1999 a delegate of the Respondent refused the Applicant's claim to have the death of her late husband attributed to his war service and on 12 July 2001 the Veterans' Review Board affirmed that decision. By notice lodged the 31^st day of August 2001 the Applicant sought review of the response decision by this Tribunal.
3.      The third application for review came on for hearing for this Tribunal on the 12^th day of February 2003. At that hearing the following documents were taken in and marked as follows namely:
`

Exhibit

Description

Date

T1-T14    pp1-62

The documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975

A1

The Applicant's Statement of Facts and Contentions

undated

A2

Statement by the Applicant

6 May 2002

A3

Report of Dr Dinnen, Psychiatrist

13 February 2002

A4

Report of Mr Brendan O'Keefe, Historian

4 July 2002

A5

Copy statement by Allan Terrence Muscio

30 August 1985

A6

Copy statement by Paul Wayne Guy

25 September 1985

A7

Copy statement by Geoffrey Leonard Ewart

25 September 1985

R1

Respondent's amended Statement of Facts and Contentions

17 June 2002

R2

Deceased's record of service with Royal Navy

12 August 2002

R3

Report of WriteWay Research Service

26 March 2002

R4

Report of WriteWay Research Service

27 June 2002

R5

Report of WriteWay Research Service

25 July 2002

4. As the deceased veteran had operational service as that term is defined in section 6C of the Veterans' Entitlements Act 1986 being service in Korean waters aboard HMAS Tobruk in the period from 31 August 1951 to 23 February 1952 the standard of proof in this matter is that…

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 Boother and Repatriation Commission

Details

AGLC: Boother and Repatriation Commission [2003] AATA 195
Case: [2003] AATA 195
Decision Date: 28 February 2003

CaseChat Overview and Summary

The case of Boother and Repatriation Commission involved a claim by Boother regarding the suicide of his deceased veteran father, which he attributed to Post Traumatic Stress Disorder (PTSD). The Repatriation Commission rejected the claim, prompting Boother to appeal to the Administrative Appeals Tribunal (AAT). The AAT's decision was subsequently reviewed in the Federal Court of Australia.

The primary legal issues centred on whether the Tribunal had the authority to depart from the criteria specified in the Statement of Principles (SoP) regarding the necessary link between PTSD and the veteran's suicide. Boother argued that the Tribunal could exercise its discretion under section 120 of the Veterans' Entitlements Act 1986 to consider the merits of the claim outside the strict confines of the SoP. However, the Court had to determine if such discretion indeed existed and whether the Tribunal's adherence to the SoP was mandatory.

The Court found that the Tribunal was bound by the criteria set out in the SoP and could not depart from them. The Court relied on previous cases such as McKenna v Repatriation Commission and Repatriation Commission v Deledio, which established that the Tribunal's role was to apply the SoP as it stood. The Court also examined the evidence provided by Boother and concluded that it did not meet the diagnostic factors outlined in the relevant SoP for PTSD. The Court noted that the evidence lacked the necessary detail to substantiate a causal link between the veteran's PTSD and his suicide.

The Court affirmed the decision of the AAT, upholding the Repatriation Commission's rejection of Boother's claim. The Court held that the Tribunal's adherence to the SoP was both appropriate and mandatory, and that the evidence did not support the claim that PTSD led to the veteran's suicide. This decision reinforces the importance of strict compliance with SoP criteria in veterans' entitlement claims.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Exhibit	Description	Date
T1-T14 pp1-62	The documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1	The Applicant's Statement of Facts and Contentions	undated
A2	Statement by the Applicant	6 May 2002
A3	Report of Dr Dinnen, Psychiatrist	13 February 2002
A4	Report of Mr Brendan O'Keefe, Historian	4 July 2002
A5	Copy statement by Allan Terrence Muscio	30 August 1985
A6	Copy statement by Paul Wayne Guy	25 September 1985
A7	Copy statement by Geoffrey Leonard Ewart	25 September 1985
R1	Respondent's amended Statement of Facts and Contentions	17 June 2002
R2	Deceased's record of service with Royal Navy	12 August 2002
R3	Report of WriteWay Research Service	26 March 2002
R4	Report of WriteWay Research Service	27 June 2002
R5	Report of WriteWay Research Service	25 July 2002