Boyes and Repatriation Commission - [2004] AATA 17

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 17
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/369

VETERANS' APPEALS DIVISION )

Re JOHN JOSEPH BOYES

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Brigadier R D F Lloyd, Member
Date13 January 2004
PlacePerth

Decision
The Tribunal varies the decision under review by deleting Claustrophobia as an additional separately diagnosed condition and otherwise affirms the Veterans’ Review Board decision that Anxiety Disorder and Alcohol Dependence or Alcohol Abuse are not war or defence-caused.

..............(sgd R D F Lloyd)................
Member

CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – applicant ex RAN with operational service FESR and Vietnam waters and eligible defence service – claim for anxiety disorder, alcohol dependence/abuse and VRB included added condition of claustrophobia – diagnosis of claustrophobia as a separate condition found not valid – material points to hypotheses connecting two conditions with eligible service – hypotheses fit template of Statements of Principle – facts do not support extent or severity of stressor relied upon – claimed conditions not war (or defence) caused
Veterans’ Entitlements Act 1986 (Cth) ss 9, 120, 120A
Statement of Principle Concerning Anxiety Disorder (Instrument No 1 of 2000)
Statement of Principle Concerning Alcohol Dependence or Alcohol Abuse (Instrument No 76 of 1998)
Re Repatriation Commission v Deledio (1998) 83 FCR 82
Stoddart v Repatriation Commission [2003] FCA 334
Repatriation Commission v Gosewinckel [1999] FCA 1273
Lees v Repatriation Commission [2002] FCAFC 398
Robertson and Repatriation Commission – AAT V96/178 of 2 March 1998
REASONS FOR DECISION

13 January 2004 Brigadier R D F Lloyd, Member

1. This is an application before the Administrative Appeals Tribunal (“the Tribunal”) by John Joseph Boyes (“the applicant”) for a review of a decision by the Veterans’ Review Board (“the VRB”) dated 5 September 2002 which:
(a)varied that part of the decision of the Repatriation Commission (“the respondent”) of 15 March 2001 which refused acceptance of anxiety disorder and alcohol dependence or alcohol abuse as being war or defence caused by including claustrophobia as a third claimed condition;
(b)and which then affirmed that part of the respondent’s decision as varied, i.e. it refused acceptance of all three conditions as being war or defence-caused.

2. The applicant attended the hearing and was assisted by his advocate, Mr C Hammal. The respondent was represented by Mr C Ponnuthurai. The Tribunal had before it the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”) and in addition the following documents were taken into evidence at the request of the respondent:
·     Exhibit R1: Transcript of proceedings of the VRB on 5 September 2002 re JJ Boyes.
·     Exhibit R2: Report by Dr A J Mander dated 1 July 2003 re Joseph Boyes.
·     Exhibit R3: Writeway Research Service report dated 18 September 2003 re: Ex CPOMTPD3 John Joseph Boyes RAN AS 4332: by Captain HA Josephs RAN (Rtd) – with attachments numbered 1 to 8.

3. No additional documentary evidence was handed up…

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 Boyes and Repatriation Commission

Details

AGLC: Boyes and Repatriation Commission [2004] AATA 17
Case: [2004] AATA 17
Decision Date: 13 January 2004

CaseChat Overview and Summary

The case involved a claim by a former member of the Royal Australian Navy (RAN) for veterans' entitlements under the Veterans’ Entitlements Act 1986 (Cth). The applicant, who had served in the Vietnam waters, sought compensation for anxiety disorder, alcohol dependence/abuse, and claustrophobia. The claim was initially considered by the Veterans’ Review Board (VRB), which determined that anxiety disorder and alcohol dependence/abuse were not caused by war or defence service, and that claustrophobia was a separate condition not associated with war service. The applicant appealed this decision to the Administrative Appeals Tribunal (AAT).

The primary legal issues before the court were whether the applicant's conditions of anxiety disorder, alcohol dependence/abuse, and claustrophobia were caused by war or defence service, and whether the diagnosis of claustrophobia as a separate condition was valid. The court needed to consider the evidence and apply the relevant legislative provisions and Statements of Principle to determine the validity of the applicant's claims. The court also had to assess whether the hypotheses connecting the applicant's conditions to his eligible service fit the template of the Statements of Principle and whether the facts supported the severity of the stressor relied upon.

The Tribunal reviewed the evidence and found that while there were material points supporting a connection between the applicant's conditions and his eligible service, the hypotheses did not fit the template of the Statements of Principle. Additionally, the court concluded that the facts did not support the extent or severity of the stressor that the applicant had relied upon. The Tribunal affirmed the VRB's decision that anxiety disorder and alcohol dependence/abuse were not war or defence-caused, and it deleted claustrophobia as a separately diagnosed condition. The Tribunal's decision was to vary the original decision by removing claustrophobia as an additional condition and otherwise affirm the VRB's decision.

Orders

Orders of the court

The Tribunal varies the decision under review by deleting Claustrophobia as an additional separately diagnosed condition and otherwise affirms the Veterans’ Review Board decision that Anxiety Disorder and Alcohol Dependence or Alcohol Abuse are not war or defence-caused.

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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