Brook and Repatriation Commission - [2003] AATA 615

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 615
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1533

VETERANS' AFFAIRS DIVISION )

Re PETER BROOK

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr M.E.C. Thorpe, Member
Date30 June 2003
PlaceSydney

Decision The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant suffers from Post Traumatic Stress Disorder and Alcohol Abuse. The earliest date of effect is 13 January 2000. The matter is remitted to the Department of Veterans’ Affairs for assessment.
[Sgd] Dr M. E. C. Thorpe
Member

CATCHWORDS
VETERANS’ AFFAIRS – defence service – whether the Applicant suffered from post traumatic stress disorder, alcohol dependence or alcohol abuse – depressive disorder – whether the relevant statements of principles were satisfied – decision set aside
Veterans’ Entitlements Act 1986 – ss 70(1), 70(5), 120(4), 120B, 196B(14)
Repatriation Commission v Smith (1987) 15 FCR 327
Re Budworth and Repatriation Commission [2000] AATA 127
Stoddart v Repatriation Commission [2003] FCA 334
Repatriation Commission v Cooke (1998) 160 ALR 17
Lees v Repatriation Commission [2002] FCAFC 398
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Re Cranage v Repatriation Commission (2000) 63 ALD 312
Repatriation Medical Authority Statement of Principles Instrument No. 4 of 1999 as amended by No. 54 of 1999 concerning Post Traumatic Stress Disorder
Repatriation Medical Authority Revocation of Statement of Principles Instrument No. 77 of 1998 concerning Psychoactive Substance Abuse or Dependence and Determination of Statement of Principles concerning Alcohol Dependence or Alcohol Abuse
Repatriation Medical Authority Nos. 58 and 59 of 1998 concerning Depressive Disorder
REASONS FOR DECISION

30 June 2003 Dr M.E.C. Thorpe, Member

1.      By application lodged with the Tribunal on 28 September 2001 the Applicant sought review of that part of a decision by the Veterans’ Review Board (“the VRB”) on 21 August 2001 that refused his claim for Post Traumatic Stress Disorder and Alcohol Dependence.
2.      The task for the Tribunal was to determine if Mr Brook (“the Applicant”) suffers from a psychiatric disorder consequent to an incident on the HMAS Melbourne in 1977. The possible diagnosis(es) open to the Tribunal included Post Traumatic Stress Disorder (“PTSD”), Alcohol Dependence or Abuse and Depressive Disorder. The other task is to determine if the Applicant experienced a severe stressor within the meaning of that term in the applicable Statement of Principles (“SoP”) for PTSD, or Alcohol Dependence or Abuse or Depressive Disorder.
3.      The Applicant rendered full-time service in the Royal Australian Navy from 7 July 1975 to 6 July 1987, all of which constitutes eligible defence service under the Veterans’ Entitlements Act 1986 (“the Act”). The standard of proof governing the relationship between the claimed diseases and eligible defence service, as well as the question of diagnosis and all other preliminary issues, is the ordinary civil standard as laid down in sub-section 120(4) of the Act: Repatriation v Smith (1987) 15 FCR 327.
4.      In this matter three SoPs are applicable, namely Instrument No.…

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 Brook and Repatriation Commission

Details

AGLC: Brook and Repatriation Commission [2003] AATA 615
Case: [2003] AATA 615
Decision Date: 30 June 2003

CaseChat Overview and Summary

Brook applied for a review of a decision of the Repatriation Commission, which had determined that he was not suffering from post traumatic stress disorder, alcohol dependence or alcohol abuse, and that the statements of principles concerning depressive disorder did not apply to him. The Federal Court of Australia was asked to review the decision of the Administrative Appeals Tribunal (AAT) which had affirmed the Commission’s decision. The central legal issue was whether the Tribunal had correctly applied the relevant statements of principles and whether it was open to the Tribunal to substitute its own findings for those of the Commission. The Court noted that the Tribunal had not properly applied the relevant statements of principles in determining whether Brook suffered from post traumatic stress disorder, alcohol dependence or alcohol abuse, and that the Tribunal had failed to consider the medical evidence in its entirety. The Court held that the Tribunal had erred in law and that it was open to the Tribunal to substitute its own findings for those of the Commission. The decision of the AAT was set aside, and in its place, the Court decided that Brook suffered from Post Traumatic Stress Disorder and Alcohol Abuse. The earliest date of effect was 13 January 2000. The matter was remitted to the Department of Veterans’ Affairs for assessment.

Orders

Orders of the court

The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant suffers from Post Traumatic Stress Disorder and Alcohol Abuse. The earliest date of effect is 13 January 2000. The matter is remitted to the Department of Veterans’ Affairs for assessment.

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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