Brackin and Repatriation Commission (Veterans' entitlements) - [2018] AATA 4584

Brackin and Repatriation Commission (Veterans' entitlements) [2018] AATA 4584 (11 December 2018)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/0853
Re:Bryan Brackin
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso

Date:11 December 2018
Place:Brisbane

The Tribunal sets aside the decision under review and in substitution finds that the veteran’s anxiety disorder was war-caused. The matter is remitted to the Repatriation Commission for appropriate action in accordance with this determination.
...................[Sgd].....................................................
Deputy President J Sosso
CATCHWORDS
VETERANS’ ENTITLEMENTS – war caused disease – Statement of Principles for anxiety disorder – life threatening event – clinical onset – hypothesis upheld - remitted to the Commission.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Blain v Repatriation Commission [2017] FCA 114
Border v Repatriation Commission (No 2) (2010) 191 FCR 163
Bull v Repatriation Commission (2001) FCA 1832
Bushell v Repatriation Commission (1992) 175 CLR 408
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
Collins v Repatriation Commission (2009) 177 FCR 28
Deledio v Repatriation Commission (1997) 47 ALD 261
East v Repatriation Commission (1987) 16 FCR 517
Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 352
Forrester v Repatriation Commission [2013] FCA 898
Hill v Repatriation Commission [2005] FAFC 23
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Brady [2007] FCA 1087
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill [2002] FCAFC 192; 69 ALD 581
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Milenz [2006] FCA 1436
SECONDARY MATERIALS
Statement of Principles concerning anxiety disorder No. 102 of 2014
REASONS FOR DECISION
Deputy President J Sosso
11 December 2018
INTRODUCTION

Mr Bryan William Brackin (the veteran) seeks a review of a decision of the Veterans’ Review Board (the Board) of 2 November 2015 which determined that his claim for hypertension, gout, chronic renal failure, anxiety disorder, alcohol abuse, right eye laceration and right acromioclavicular joint disruption with osteoarthritis were not related to service and that no medical condition was present to answer his claim for “PTSD” – Exhibit 1 B2 – B11. The Board upheld a decision of the Repatriation Commission (the Commission) dated 8 August 2013 – Exhibit 1 T17, T18 pp. 102 – 115.
The Tribunal was provided with a transcript of the 2 November 2015 proceedings of the Board where the veteran appeared and gave evidence – Exhibit 5.
It was confirmed at the Hearing convened on 22 June 2018, and subsequently in written submissions on behalf of the veteran prepared by Mr Anthony Hornby dated 10 July 2018, that the veteran determined not to continue with his request for a review of the Board’s determinations relating to:
·Gout;
·Chronic renal failure;
·Alcohol abuse disorder;
·Right eye laceration;
·Right acromioclavicular joint disruption with osteoarthritis; and
·Posttraumatic stress syndrome.
The veteran also withdrew his request for review of the Board’s determination in relation to hypertension.
The only claimed condition remaining for consideration by the Tribunal…

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.

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Details

Case: [2018] AATA 4584
Decision Date: 11 December 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the appeal of Mr Brackin against a decision of the Repatriation Commission concerning his claim for veterans' entitlements. The dispute centred on whether Mr Brackin's anxiety disorder was war-caused, as defined by the relevant Statements of Principles.

The Tribunal was required to determine whether the facts necessary to support Mr Brackin's hypothesis, that his anxiety disorder was war-caused, had been disproved beyond reasonable doubt, or conversely, whether the truth of any material fact inconsistent with the hypothesis had been proved beyond reasonable doubt. This involved an assessment of the evidence against the criteria set out in the Statement of Principles for anxiety disorder, specifically concerning a life-threatening event and the clinical onset of the condition.

Deputy President Sosso P found that there were no grounds to disprove the veteran's hypothesis beyond reasonable doubt, nor to prove any inconsistent facts beyond reasonable doubt. Consequently, the Tribunal set aside the decision under review and substituted a finding that the veteran's anxiety disorder was war-caused. The matter was remitted to the Repatriation Commission for appropriate action.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, there are no grounds for a finding that either one or more of the facts necessary to support the veteran’s hypothesis have been disproved beyond reasonable doubt or that the truth of any material fact which is inconsistent with the hypothesis has been proved beyond a reasonable doubt.DECISION The Tribunal sets aside the decision under review and in substitution finds that the veteran’s anxiety disorder was war-caused. The matter is remitted to the Commission for appropriate action in accordance with this determination.

Ratio Decidendi

Legal Principle Established

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