Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 346
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: V 200500446
VETERANS' APPEALS DIVISION ) Re William Brady Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Mr G L McDonald, Deputy President
Miss E A Shanahan, MemberDate10 May 2010
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
........(sgd G L McDonald)....
Deputy President
CATCHWORDS –remittal from Federal Court of Australia - general order that case be reheard - Tribunal not restricted to grounds advanced in the appeal - status of ‘observations’ by the Federal Court Vietnam veteran – claim for pension - various conditions - whether veteran suffered alcohol abuse or alcohol dependence - whether veteran suffered alcohol induced peripheral neuropathy - anxiety disorder - whether reasonable hypothesis - whether facts establish beyond reasonable doubt that hypothesis reasonable – decision affirmed.
Administrative Appeals Tribunal Act 1975 ss 37 and 44(4) and (5)
Veterans’ Entitlements Act 1986 ss 7(1)(a), 9, 9(1)(a), 9(1)(b), 9(1)(e)(ii), 13(1), 119(1)(h)(i), 119(1)(h)(ii), 120(1) and (3) and 120A
Briginshaw v Briginshaw [1938] 60 CLR 336
Meehan and Repatriation Commission [2003] AATA 429
Meehan v Repatriation Commission [2003] FCA 1371
Mines v Repatriation Commission (2004) 86 ALD 62
Repatriation Commission v Brady [2007] FCA 1087
REASONS FOR DECISION
10 May 2010 Mr G L McDonald, Deputy President
Miss E A Shanahan, Member1. The applicant, who served in the Australian Army in Vietnam, lodged a claim, dated 28 February 2004, to be paid a pension under the Veterans’ Entitlements Act 1986 (the Act). The conditions upon which he relied were generalised anxiety disorder,[1] Post Traumatic Stress Disorder (“PTSD”) and a deterioration of his hearing loss.[2] While no apparent claim for alcohol abuse was made the delegate of respondent decided to reject anxiety depression, PTSD and alcohol abuse.[3] Other conditions including increased hearing loss were accepted. Since alcohol abuse has been included in all subsequent considerations of the applicant’s claim it ought to be considered in this review. The Veteran’s Review Board affirmed the decision of the delegate but amended the claim for anxiety/depression to “anxiety disorder with co-morbid depression …”[4] From that decision the applicant appealed to the AAT (the first AAT review).
[1] Expressed by his medical practitioner, Dr P. Nice, on the form as ‘anxiety and depression’ (the first AAT review, Exhibit A at p 19).
[2] Exhibit R1, Appeal Book, pp 97-98 and 100.
[3] Exhibit R1, Appeal Book, pp 117-118.
[4] Exhibit R1, Appeal Book, p 23.
2. In the first AAT review, the Tribunal determined that the applicant did not suffer PTSD, but he did suffer from a generalised anxiety disorder and alcohol dependence or abuse and was entitled to be paid a pension. The respondent appealed to the Federal Court. The Federal Court decided that the Tribunal had erred in finding that the applicant suffered alcohol abuse or dependence on the basis that the conditions were mutually exclusive and that evidence, which was not before the Tribunal, was required as to whether…
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CaseChat Overview and Summary
The Federal Court had directed the Tribunal to consider the evidence afresh, and not be restricted to the grounds advanced in the appeal. The Tribunal had to determine whether the evidence supported the hypothesis that Brady suffered from the conditions he claimed, on the balance of probabilities. The Tribunal found that the evidence did not establish beyond reasonable doubt that Brady suffered from the claimed conditions. The Tribunal relied on the Briginshaw v Briginshaw principle, which requires the decision-maker to be satisfied that the claimed hypothesis is more probable than not, based on the evidence. The Tribunal also considered relevant legislation and previous cases, such as Meehan and Repatriation Commission and Repatriation Commission v Brady.
The Tribunal found that the evidence did not establish beyond reasonable doubt that Brady suffered from the claimed conditions. The Tribunal considered the evidence as a whole, and found that it did not support the hypothesis that Brady suffered from the claimed conditions. The Tribunal found that the evidence was insufficient to establish the claimed conditions on the balance of probabilities. The Tribunal affirmed the decision under review, and rejected Brady’s claim for a pension.
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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