Burls and Repatriation Commission

Case [2001] AATA 654

DECISION AND REASONS FOR DECISION [2001] AATA 654

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V99/1418

VETERANS' APPEALS  DIVISION       )          
           Re      PETER EDWARD BURLS           

Applicant

And    REPATRIATION COMMISSION

Respondent

DECISION

Tribunal       Mrs Joan Dwyer, Senior Member            

Date13 July 2001

PlaceMelbourne

Decision      The Tribunal varies the decision under review to provide: (i)   that Mr Burls suffers from PTSD which is a war-caused disease with effect from 13 November 1997; (ii)       that he has an impairment rating of 17 in respect of his PTSD; (iii)     that he is entitled to payment of pension at 60% of the General Rate from 13 November 1997.      
  (Sgd) Joan Dwyer
  Senior Member

VETERANS' AFFAIRS - anxiety condition – whether PTSD - service in Vietnam – veteran not involved in combat operations –evidence of symptoms of anxiety on return from Vietnam – issue as to diagnosis and as to whether criteria in the definition in the relevant Statement of Principles were met – for clinical purposes four psychiatrists regarded veteran as suffering from PTSD – Tribunal in some doubt as to whether service stressor met definition of "a stressor" in the relevant SoP – veteran found to be suffering from PTSD which was war-caused

  • Assessment of PTSD

  • Whether intermediate rate pension payable

Veterans' Entitlements Act 1986 ss 23(1)(a),(b),(c), 120(1), (3), 120A(3),

Arnott v Repatriation Commission [2001] FCA 262

Budworth v Repatriation Commission [2001] FCA 317

Bushell v Repatriation Commission (1992) 109 ALR 30

Cook v Repatriation Commission [2000] FCA 1756

Deledio v Repatriation Commission (1997) 47 ALD 261

Gorton v Repatriation Commission [2001] FCA 286

Re Griffiths and Repatriation Commission [2001] AATA 429

Re Thompson and Repatriation Commission (2000) 60 ALD 605

Repatriation Commission v Cooke (1998) 52 ALD 1

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Gosewinckel [1999] FCA 1273

Repatriation Commission v Walters [2001] FCA 228

Symons v Repatriation Commission [2000] FCA 534

Thompson v Repatriation Commission [2000] FCA 939

Williams v Repatriation Commission [2001] FCA 601

Statement of Principles

Instrument No. 15 of 1994

Instrument No. 225 of 1995

Instrument No. 3 of 1999

Instrument No. 54 of 1999

REASONS FOR DECISION

13 July 2001 Mrs Joan Dwyer, Senior Member   

background

  1. This is an application for review of a decision of the Repatriation Commission made 28 September 1998 (T15 pp36-40) and affirmed by the Veterans' Review Board ("the VRB") on 27 September 1999 (T2 ppvi-xix).  The Repatriation Commission ("the Commission") refused Mr Burls' claim to have an anxiety condition, subsequently diagnosed as post traumatic stress disorder ("PTSD"), accepted as war-caused. The Veterans' Review Board affirmed that decision. 

  2. Mr De Marchi, a solicitor, appeared for Mr Burls. Mr Herman, an advocate with the Department of Veterans' Affairs, appeared for the respondent. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing.   Mr Burls gave evidence.    Evidence was also given on his behalf by Dr Cole and Dr Parkin who are…

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AGLC
Burls and Repatriation Commission [2001] AATA 654
Case
[2001] AATA 654
Decision Date

CaseChat Overview and Summary

In the case of Burls and Repatriation Commission, the matter was heard before Mr De Marchi and Mr Herman. The dispute involved the interpretation of the relevant Statement of Principles (SoP) and its applicability to Mr Burls' claims regarding his service in Vietnam. The court was tasked with determining the correct SoP to apply and whether Mr Burls was entitled to the benefits under the more favourable provisions.

The central legal issue was which Statement of Principles was applicable to Mr Burls' case and whether he could rely on the provisions that were in force when his matter was before the Commission, if they were more advantageous to him. The court had to consider the applicable legal principles and precedents, particularly the decisions in Keely v Repatriation Commission and subsequent cases, to decide if Mr Burls could indeed rely on the SoP that was in effect during his service.

The court found that Mr Burls was entitled to rely on the Statement of Principles that was in force at the time of his service if it was more beneficial to him. The court applied the reasoning from Keely and subsequent cases, which supported Mr Burls' claim. The court accepted that Instrument No. 15 of 1994 was the relevant SoP and considered Mr Burls' evidence regarding his service in Vietnam, noting his duties as a cook and his participation in gun crew activities. Despite some discrepancies in the medical reports, the court placed significant weight on Mr Burls' own testimony.

The final orders of the court would have followed from this determination, potentially granting Mr Burls the benefits under the applicable Statement of Principles, based on the more favourable provisions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr De Marchi and Mr Herman conducted the hearing on the basis that the relevant SoP was Instrument No. 15 of 1994. Applying Keely v Repatriation Commission (1999) 56 ALD 455, which was upheld by the Full Court in Repatriation Commission v Keeley [2000] FCA 532, Mr Burls is entitled to rely on the SoP which was in force when the matter was before the Commission if it is more beneficial for him. As I understand the more recent Federal Court decisions, they do not challenge that proposition. See Cook v Repatriation Commission [2000] FCA 1756, Repatriation Commission v Walters [2001] FCA 228, Arnott v Repatriation Commission [2001] FCA 262, Gorton v Repatriation Commission [2001] FCA 286, Thompson v Repatriation Commission [2000] FCA 939, Symons v Repatriation Commission [2000] FCA 534, Williams v Repatriation Commission [2001] FCA 601. Thus I will consider the matter on the basis that Instrument 15 of 1994 is the relevant SoP.the evidence There is some confusion in medical reports as to the exact circumstances of Mr Burls' service. The most relevant evidence is of course that of Mr Burls himself. Mr Burls served in Vietnam from 7 May 1968 to 4 February 1969 in 12 Field Regiment. At all times he was a cook based at Nui Dat. In the course of his duties as a cook he went to Long Binh and perhaps another American base and a base where New Zealand forces were stationed. He spent some time at "The Horseshoe", which was a fire support base. Mr Burls said that on occasions he participated in the activities of a gun crew. Mr Burls did not describe his experience manning guns in a way which suggested that it was a stressor. He said as to his experience as a member of a gun crew (trans. p11):I didn't have to. It was just something we did. We used to take it and get up and when they have the call for the guns during the night and if we weren't on the next morning the cooks would take it in turns and we would go and fire the guns. It was just a fun thing that we did rather than being cooks.But these were sort of operational engagements, the guns would have been in support of infantry battalions that were out there and patrols and so forth?---Exactly, yes. Yes.And they were firing living ammunitions?---Yes, absolutely.On enemy positions?---Yes. Mr Burls, in the history he gave to the psychiatrists, had referred to firing guns at the enemy and being fired upon. He no doubt believed that is what he was doing. Mr Ducker, in his historical report, wrote (R1 paragraphs 15 and 16) that the records showed that there was no enemy mortar or rocket attack at Nui Dat while Mr Burls was in Vietnam, nor on the Horseshoe base while Mr Burls' battery was based there. Mr Ducker's report was based on thorough historical research. He spoke to officers who had served with Mr Burls' battery and checked historical records and information obtained from data bases. In his report and in his evidence Mr Ducker said that it was likely that Mr Burls assisted in the gun line on "routine harassing fire tasks".

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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