BUTTON AND REPATRIATION COMMISSION - [2010] AATA 860

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 860
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2975

VETERANS' APPEALS DIVISION )

Re KERRY JOHN BUTTON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal The Hon R J Groom AO (Deputy President)
Date3 November 2010
PlaceHobart

Decision
The decision under review is affirmed.

[Sgd Hon R J Groom]
Deputy President

CATCHWORDS
VETERANS' AFFAIRS - disability pension - operational service in Royal Australian Navy - alcohol dependence/abuse - whether disease caused, contributed to or aggravated by operational service - stressors - inability to obtain appropriate management - disease not war-caused
Veterans' Entitlements Act 1986, ss 7(1)(a), 9(1)(a),(e), 120, 120A
Statement of Principle concerning Alcohol Dependence and Alcohol Abuse Instrument Number. 1 of 2009
Statement of Principle concerning Alcohol Dependence and Alcohol Abuse Instrument Number 76 of 1998
Benjamin v Repatriation Commission (2001) 70 ALD 622
Brook v Repatriation Commission (1986) 10 ALD 112
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley (2000) 60 ALD 401
Repatriation Commission v Gorton (2001) 65 ALD 609
Re Boyes and Repatriation Commission [2004] AATA 17
Repatriation Commission v Stoddart (2003) 134 FCR 392
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION

3 November 2010
The Hon R J Groom AO (Deputy President)

introduction
1.      The applicant, Mr Button, has claimed a disability pension under the Veterans' Entitlements Act 1986 ("the Act").
2.      He contends that the alcohol abuse or alcohol dependence from which he now suffers is war-caused in that it was caused by or contributed to or aggravated by the operational service he rendered whilst serving in the Royal Australian Navy.
3.      The Repatriation Commission rejected his claim on the 30 November 2007. On the 26 March 2009 the Veterans' Review Board ("VRB") affirmed the Commission's decision. Mr Button now asks this Tribunal to review the VRB decision.
4.      It is not in dispute between the parties, and I so find, that Mr Button rendered "operational service" on HMAS Sydney when that ship was undertaking voyages to and from Vietnam or when it was in Vung Tau Harbour in Vietnam in the following periods:
20 December 1967 to 3 January 1968  17 January 1968 to 16 February 1968  27 March 1968 to 26 April 1968  21 May 1968 to 13 June 1968  13 November 1968 to 28 November 1968  8 February 1969 to 25 February 1969

"Operational service" is deemed to be eligible war service. (See section 7(1)(a) of the Act).
If a veteran suffers a disease and it is caused by his operational service or is contributed to in a material degree or aggravated by that service it is deemed by the Act to be a war-caused disease. (See section 9(1)(a) and (e) of the Act).
background facts
5. The applicant was born on 1 January 1950. He is therefore now 60 years of age.
6. Mr Button's early life was spent on the North-West Coast of Tasmania. He believes his childhood was "reasonably happy"…

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 BUTTON AND REPATRIATION COMMISSION

Details

AGLC: BUTTON AND REPATRIATION COMMISSION [2010] AATA 860
Case: [2010] AATA 860
Decision Date: 3 November 2010

CaseChat Overview and Summary

The matter before the Federal Court involved a dispute between the Repatriation Commission and a former serviceman, concerning the eligibility of a disability pension. The applicant, a veteran of the Royal Australian Navy, claimed that his alcohol dependence was caused, contributed to or aggravated by his operational service. The Commission, however, found that the applicant's condition was not attributable to his service, and subsequently denied his claim for a disability pension. The applicant appealed this decision to the Federal Court.

The central legal issue before the court was whether the applicant's alcohol dependence was connected to his service in the Navy. Specifically, the court had to determine if the applicant's condition was caused, contributed to or aggravated by his operational service, as required by the Veterans' Entitlements Act 1986. The applicant argued that the stressors of service, coupled with his inability to obtain appropriate management for his condition, led to his alcohol dependence. The Commission, on the other hand, maintained that the applicant's condition was not war-caused.

The court examined the relevant statutory provisions and considered the Statements of Principle concerning Alcohol Dependence and Alcohol Abuse. It held that the applicant's condition did not arise out of his service, nor was it caused, contributed to or aggravated by his service. The court reasoned that the applicant's alcohol dependence was not connected to the service-related stressors, as there was no evidence to suggest that these stressors were a significant factor in the development of his condition. Additionally, the court found that the applicant's inability to obtain appropriate management for his alcohol dependence did not establish a causal link to his service. Accordingly, the court affirmed the decision of the Repatriation Commission, dismissing the applicant's appeal.

No further orders were made by the court.

Orders

Orders of the court

The decision under review is affirmed.

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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