VETERANS’ AFFAIRS – appeal from a decision of the Administrative Appeals Tribunal (“AAT”) – requirement on AAT to consider whether to exercise discretion under ss 31(6) and 31(7) of the Veteran’s Entitlement Act 1986 (Cth) (“the Act”) to backdate a reduction in pension – standard of proof to be applied to questions of diagnosis and causation – must be shown on balance of probabilties that a disease exists – no requirement to prove that the disease has a specific medical label – if questions of causation arise on the question whether a disease exists the reverse criminal standard applies – nature of proceedings before AAT – the way in which parties conduct a case ultimately reviewing a decision of the Repatriation Commission does not relieve the duty of the AAT to consider whole case – circumstances in which a lay tribunal may draw inferences and conclusions as to medical conditions absent expert medical evidence
RONALD JAMES BUDWORTH v REPATRIATION COMMISSION N242 of 2000
MADGWICK J 29 MARCH 2001 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N242 of 2000
ON APPEAL FROM A DECISION OF THE DEPUTY PRESIDENT OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
RONALD JAMES BUDWORTH APPLICANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGE:
MADGWICK
DATE OF ORDER:
29 MARCH 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The decision of the Administrative Appeals Tribunal given on 23 February 2000 be set aside and the matter be remitted to the Administrative Appeals Tribunal, differently constituted, for determination according to law.
3.The respondent pay the applicant’s costs.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N242 of 2000
ON APPEAL FROM A DECISION OF THE DEPUTY PRESIDENT OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
RONALD JAMES BUDWORTH APPLICANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGE:
MADGWICK
DATE:
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
AGLC
Budworth v Repatriation Commission [2001] FCA 317
Case
[2001] FCA 317
Decision Date
CaseChat Overview and Summary
In the case of Budworth v Repatriation Commission, the applicant, a former serviceman, appealed a decision of the Administrative Appeals Tribunal (AAT) regarding the rate of pension payable to him. The AAT had affirmed decisions made by the Veterans' Review Board (VRB) and the Repatriation Commission, setting the pension rate at nil until 18 October 1992 and at relatively modest rates thereafter. The applicant argued that these decisions were incorrect and sought to have them reviewed by the court. The central legal issues revolved around the interpretation of the relevant statutory provisions, particularly those concerning the assessment of the degree of war-caused incapacity and the calculation of the pension rate. The court had to determine whether the AAT had properly applied the law in assessing the applicant's disabilities and the appropriate rate of pension.
The court examined the evidence presented to the AAT and the reasoning behind the tribunal's decisions. It considered the applicant's claims of war-caused disabilities, including post-traumatic stress disorder with chronic pain syndrome, and the Commission's assessments of these claims. The court scrutinized the AAT's application of the statutory framework and its interpretation of the evidence. Ultimately, the court found that the AAT had made errors in its legal reasoning and had not properly considered certain aspects of the evidence. Consequently, the court set aside the AAT's decision and remitted the matter back to the AAT for reconsideration. The court also ordered the Repatriation Commission to pay the applicant's costs.
Orders
Orders of the court
1. The appeal be allowed.
2. The decision of the Administrative Appeals Tribunal given on 23 February 2000 be set aside and the matter be remitted to the Administrative Appeals Tribunal, differently constituted, for determination according to law.
3. The respondent pay the applicant’s costs.
Background
Background to the litigation
The applicant appeals from the decision of the Administrative Appeals Tribunal (“the AAT”) constituted by a Deputy President, given on 23 February 2000, pursuant to s 44 of the Administrative Appeals Tribunal Act 1986 (Cth) (“the AAT Act”). The AAT affirmed two decisions, one given by the Veterans’ Review Board (“the VRB”) and one made by the Repatriation Commission (“the Commission”), and assessed the rate of pension payable from 10 February 1998 as nil until 18 October 1992 and at relatively modest rates thereafter.Background to the decision reviewed by the AAT The applicant had “eligible war service” from 19 December 1972 to 22 September 1977. During this time the applicant rendered “operational service” for Australia in Vietnam during his five voyages there on HMAS Sydney and HMAS Melbourne. Accordingly, the applicant falls within the definition of a “veteran” in s 5C(1) of the Veterans Entitlements Act 1986 (Cth) (“the Act”). On 10 May 1988, the applicant lodged a claim for a pension with the Department of Veterans’ Affairs. He described the disabilities for which he was claiming a pension, as “hearing loss, constant back pain, severe nerves, insomnia, arthritis and headache”. On 3 November 1989, a delegate of the Commission gave his statement of reasons, in which he said:“After considering all of the available material…I am of the opinion that the material before me raises a reasonable hypothesis connecting post-traumatic stress disorder with chronic pain syndrome with the veteran’s operational service in that this condition may be related to his experience during that service.…In these circumstances I am not satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that post-traumatic stress disorder with chronic pain syndrome was war-caused. I have determined that this condition was war-caused as from 10 February 1988…”The delegate assessed the degree of war-caused incapacity as 80% and assessed a pension to be payable at 80% of the “General Rate” as from 10 February 1988. On 5 December 1989, the applicant lodged an application for a review of that decision with the VRB. Among other matters, the applicant was seeking an increase in the Commission’s assessment of the percentage rate of pension granted to him. On 30 August 1993, the hearing of this application was adjourned by the VRB pursuant to s 152 of the Act following a request by the VRB to the Secretary of the Department of Veterans’ Affairs to arrange for the making of further investigations in relation to the applicants’ claim. On 9 November 1993, a Commission delegate made a decision on a further claim by the applicant in relation to additional disabilities. The Commission determined that the disability thus claimed as “anxiety attacks” was the same disability previously determined to be war-caused under a diagnosis of post traumatic stress disorder (“PTSD”) with chronic pain syndrome. However, the Commission did find that there were additional disabilities that were war-caused within the meaning of s 9 of the Act. As a result the applicant’s claim was granted by the Commission and the applicant’s pension was increased to the Special Rate (T&PI) with effect from 18 October 1992.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
MADGWICK J
On 17 January 1997, the applicant lodged an application for review of this decision with the AAT.The AAT’s decision On 23 February 2000, the AAT affirmed both of the VRB decisions under review relating to PTSD. The AAT also determined that the rate of pension be nil with effect from 10 February 1988 until 18 October 1992, that the rate of pension thereafter be 90% of the General Rate until 1 November 1997, and thereafter that it be 100% of the General Rate. The evidence before the Tribunal included the following:·the applicant was born on 7 September 1947 and was an only child;·when the applicant was 8 or 9 years old, his mother died after she tripped over his schoolbag, and he continues to feel guilty about it;·the applicant joined the Navy at age 17 after being driven out of his home by constant arguments with his stepmother;·the applicant saw intermittent operational service in Vietnamese waters on board HMAS Sydney and HMAS Melbourne between 27 May 1965 and 18 December 1972;·his first tour of duty was on HMAS Sydney in May 1965. He was told that the ship would be at 1st degree of readiness when it reached Vietnamese waters, one stage less than action stations. He was told to be wary of snipers whilst on deck. HMAS Sydney was anchored off Vung Tau for 3 or 4 days. On two occasions, for a few hours each, the applicant was detailed to sentry duty. On these occasions, he was apprehensive and looked for enemy divers in the water or anything drifting towards the ship. He felt responsible and “scared”;·the applicant made two trips on HMAS Melbourne in 1966 as a steward attached to the Fleet Air Arm. On one occasion there was an accident in which a pilot was killed. The applicant was detailed to pack the kit of the deceased pilot and found this distressing;·in 1971, the applicant decided he “had had enough of animosity and of taking young fellows and bringing old men back” and deserted ship in Adelaide. He flew to Melbourne and worked in a warehouse for 3 or 4 months. He was apprehended after about 12 months and was placed in cells on HMAS Sydney. A disciplinary hearing merely stopped his leave for 30 days and deducted certain pay;·the applicant had two further voyages to Vietnam in 1972 on HMAS Sydney. On one of these trips he heard a loud noise which alarmed him and he thought the ship was under attack, but it was only a scare charge. On another occasion, the applicant recalled the ship re-anchoring much closer to shore than usual and he saw helicopters taking off and bombers strafing nearby hills which caused him concern and alarm and he did not feel safe;·during shore leave, he experienced a number of problems with civilians who were opposed to the Vietnam War. He was quite shocked by this and it aroused feelings of guilt and association with death;·the applicant had suffered from a number of distressing incidents in his private life. In the 1960s a friend died on a scuba dive when helping the applicant and he considered he had some responsibility for this death and it left him distraught and feeling guilty about causing death. He was also required in 1974 to consent to the withdrawal of his father’s medication after he had suffered a number of strokes; this resulted in his father’s death. The applicant said he was devastated and, once again, felt responsible and guilty for inducing death. The applicant has also had had three marriage breakdowns and a great deal of difficulty adjusting to civilian life after the Navy; and·the applicant’s memories of Vietnam are a mixture of shame and guilt. His recollection of service in Vietnam was one of a frightening experience. He suffers from nightmares about his Vietnamese service, particularly if he sees anything relating to war on television.