Borg and Repatriation Commission - [2003] AATA 233

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 233
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2000/1332
VETERANS' APPEALS DIVISION

Re: ANTHONY SAVIOUR BORG
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       M.J. Carstairs, Member
Date:             13 March 2003
Place:            Melbourne
Decision:The Tribunal sets aside the decisions under review and substitutes the following decisions: that the condition of PTSD is war-caused with effect from 8 April 1998; and the condition of irritable bowel syndrome is war-caused with effect from 24 June 1996. The Tribunal remits the matter to the respondent for assessment of the rate of pension payable.

(sgd) M.J. Carstairs
Member

VETERANS' AFFAIRS - veterans’ entitlements – irritable bowel syndrome - anxiety disorder - whether war-caused
Veterans’ Entitlements Act 1986 ss9, 120, 120A
Meehan v Repatriation Commission (2001) 64 ALD 366
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Bushell v Repatriation Commission (1992) 175 CLR 408
REASONS FOR DECISION
13 March 2003  M. J. Carstairs, Member
1.      This is an application by Anthony Saviour Borg (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 31 August 2000. The VRB affirmed the decision of a delegate of the Repatriation Commission (the respondent) dated 10 January 1997 that functional bowel disease was not war-caused, and a decision of a delegate dated 14 October 1997 that anxiety disorder was not war‑caused.
2.      At the hearing of this matter on 17 October 2002, Ms J. Bornstein, of counsel, represented the applicant. There was no appearance by the respondent.
3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T22 and pages 103-158), together with six exhibits (Exhibits A1-A6) lodged by the applicant and six exhibits (R1‑R6) lodged prior to the hearing on behalf of the respondent.
BACKGROUND
4. The applicant was born in Malta on 13 June 1946, the youngest of seventeen children. At the age of 15 he entered a seminary to study for the priesthood. After three years of study, he left to commence full-time employment at a factory and the local dockyards. He served briefly with the British Army before migrating to Australia at the age of 19. He found work as a labourer for seven months and then worked on a farm for several months before joining the Australian Army (the army) in 1969. The applicant served in the army from 12 March 1969 until 24 August 1989 and reached the rank of Regimental Sergeant Major (Warrant Officer Class 1). He rendered defence service from 7 December 1972 until 28 August 1989. His service in Vietnam, from 18 June 1970 until 26 August 1970, was operational service for the purpose of s9 of the Veterans’ Entitlements Act 1986 (the Act).   From May 1971 he served in New Guinea (as it then was), after being medically evacuated from Vietnam and then spending some time hospitalised in Australia.
5.      On discharge from the army, the applicant worked as a warehouse manager/supervisor…

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 Borg and Repatriation Commission

Details

AGLC: Borg and Repatriation Commission [2003] AATA 233
Case: [2003] AATA 233
Decision Date: 13 March 2003

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal (AAT) was an application by Anthony Saviour Borg for review of decisions of the Veterans' Review Board (VRB). The VRB had affirmed decisions of a delegate of the Repatriation Commission that the applicant's conditions of irritable bowel syndrome and anxiety disorder were not caused by his war service. The Tribunal found that the applicant's claims of irritable bowel syndrome and post-traumatic stress disorder (PTSD) were war-caused. The Tribunal set aside the decisions of the VRB and remitted the matter to the Repatriation Commission for reassessment of the pension rate payable. The Tribunal found that the applicant's irritable bowel syndrome was caused by the psychological stresses of his Vietnam service. This finding was supported by the evidence of Dr Rodgers-Wilson, who treated the applicant for this condition, and who linked the onset of the condition to the applicant's Vietnam service. The Tribunal also found that the applicant suffered from PTSD, which was caused by the severe stressors of his service, including witnessing casualties and the burial of enemy dead. The Tribunal accepted the evidence of Dr Cooper, who diagnosed the applicant with mild PTSD, and the research of Writeway, which supported the applicant's claims of exposure to traumatic events. The Tribunal rejected the submissions of the Repatriation Commission that the applicant's conditions were not war-caused, finding that the evidence pointed to a reasonable hypothesis connecting the conditions with the applicant's service. The Tribunal found that the applicant's evidence was supported by independent research and that there was no material before it to suggest that the applicant's claims were not true.

Orders