Burnet and Repatriation Commission - [2005] AATA 290

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 290
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/476

VETERANS' APPEALS DIVISION )

Re BRUCE JOHN BURNET

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President D G Jarvis
Date1 April 2005
PlaceAdelaide

Decision
1         The Tribunal sets aside the decision under review and in place of that decision decides that:

           (a)       the applicant’s conditions of PTSD and alcohol dependence are war-caused; and

           (b)       the applicant’s conditions of hypertension and transient cerebral ischaemia are not war-caused.

2.        The Tribunal remits the matter to the respondent with a direction that the respondent asses the applicant’s entitlements in accordance with the attached reasons for decision.

3.        The Tribunal reserves liberty to the parties to apply in relation to the determination of the date of effect from which the pension payable as a result of this decision should take effect.

D G Jarvis
  (Signed)
  Deputy President

ADMINISTRATIVE APPEALS TRIBUNAL    )
  )           No. S2002/476
VETERANS’ APPEALS DIVISION                  )
Re:     BRUCE JOHN BURNET

Applicant

And:REPATRIATION COMMISSION

Respondent

AMENDMENT TO DECISION [2005] AATA 290
TribunalDeputy President D G Jarvis
Date5 August 2005
PlaceAdelaide

THE TRIBUNAL amends its decision and reasons for decision published on 1 April 2005 in the manner appearing from the amended decision and supplementary reasons for decision delivered on 5 August 2005.
D G Jarvis
(Signed)
Deputy President

DECISION AND REASONS FOR DECISION [2005] AATA 290
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/476

VETERANS' APPEALS DIVISION )

Re BRUCE JOHN BURNET

Applicant

And

REPATRIATION COMMISSION

Respondent

AMENDED DECISION

Tribunal Deputy President D G Jarvis
Date5 August 2005
PlaceAdelaide

Decision
1.        The Tribunal decides that the applicant’s conditions of hypertension and transient cerebral ischaemia (as well as the conditions of PTSD and alcohol dependence referred to in its previous reasons) are war-caused.

2.        The Tribunal remits the matter to the respondent with a direction that the respondent assess the applicant’s entitlements in accordance with the above reasons for decision, in conjunction with its earlier reasons.

D G Jarvis
  (Signed)
  Deputy President

CATCHWORDS -
PRACTICE AND PROCEDURE - further consideration of claim that conditions of hypertension and transient cerebral ischaemia are war-caused - failure by Tribunal to address further hypothesis not articulated by applicant at the hearing - Tribunal not functus officio as regards that unarticulated hypothesis - conditions found to be war-caused by reference to factor not previously relied upon by applicant.
Administrative Appeals Tribunal Act 1975 (Cth) s25(4)
Veterans’ Entitlements Act 1986 (Cth) s175
Benjamin v Repatriation Commission (2001) 70 ALD 622
Hill v Repatriation Commission [2005] FCAFC 23
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Plaintiff S157 of 2002 v The Commonwealth [2003] 211 CLR 476
SUPPLEMENTARY REASONS FOR DECISION

5 August 2005 Deputy President D G Jarvis

1. On 1…

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: [2005] AATA 290
Decision Date: 1 April 2005

CaseChat Overview and Summary

In the case of Burnet and the Repatriation Commission, the applicant, Bruce John Burnet, sought a review of the respondent's decision to not consider his conditions of post-traumatic stress disorder (PTSD), alcohol dependence, hypertension, and transient cerebral ischaemia (TCI) as war-caused. The matter was initially heard and determined by Deputy President D G Jarvis on 1 April 2005, with a decision that PTSD and alcohol dependence were war-caused, but hypertension and TCI were not. The matter was listed for a further hearing on 18 July 2005 to determine the effective date of pension entitlement. During this hearing, counsel for the applicant introduced an unarticulated hypothesis connecting the applicant's hypertension and TCI with his operational service, based on factor 5(n) of the Statement of Principles concerning hypertension.

The legal issues before the court involved whether the Tribunal had the jurisdiction to consider the previously unarticulated hypothesis connecting the applicant's hypertension and TCI with his operational service and whether the Tribunal had failed to exercise its jurisdiction in not considering this hypothesis in the initial decision. The court examined relevant authorities, including Benjamin v Repatriation Commission and Hill v Repatriation Commission, which emphasised the inquisitorial role of the Tribunal and its obligation to consider claims not explicitly articulated by the applicant if the evidence and material before it raised such a claim.

In its reasoning, the court concluded that the Tribunal had jurisdiction to consider the previously unarticulated hypothesis and that the failure to do so constituted a jurisdictional error. The court found that there was clear material before it that satisfied the hypothesis connecting the applicant's hypertension with his operational service, and it was consistent with factor 5(n) of the Hypertension SoP. Consequently, the court found that the applicant's conditions of hypertension and TCI were war-caused.

In conclusion, the court decided that the applicant's conditions of PTSD, alcohol dependence, hypertension, and TCI were war-caused. The matter was remitted to the respondent with a direction to assess the applicant's entitlements in accordance with the court's reasons for decision. The court also reserved liberty to the parties to apply in relation to the determination of the date of effect from which the pension payable as a result of this decision should take effect.

Orders

Orders of the court

1 The Tribunal sets aside the decision under review and in place of that decision decides that:

(a) the applicant’s conditions of PTSD and alcohol dependence are war-caused; and

(b) the applicant’s conditions of hypertension and transient cerebral ischaemia are not war-caused.

2. The Tribunal remits the matter to the respondent with a direction that the respondent asses the applicant’s entitlements in accordance with the attached reasons for decision.

3. The Tribunal reserves liberty to the parties to apply in relation to the determination of the date of effect from which the pension payable as a result of this decision should take effect.

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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