Byrne and Repatriation Commission

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1169

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/53

VETERANS' APPEALS DIVISION		)
Re		PETER BYRNE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date28 November 2005

PlaceBrisbane

Decision The Tribunal affirms the decisions under review.

..........[Sgd].........

RG Kenny
  Member

Issues and Service

5.      Ms Carter-Nicoll advised that no evidence would be offered in respect of the condition of gastro oesophageal reflux or in relation to the assessment of pension.  She conceded that the decisions in respect of those matters should be affirmed.  I am satisfied that those concessions have been properly made. 

6.      Details of Mr Byrne’s service in the RAAF are not in dispute.  I am satisfied that his overall service was from 15 January 1963 until 30 January 1974 and that this included a period of defence service, as referred to in sections 69 and 70 of the Act, after 7 December 1972.  However, it was agreed by the parties and I am satisfied that neither of Mr Byrne’s claimed psychiatric conditions is related to that period of defence service.  I am also satisfied that the period in which he served in South Vietnam, from 4 June 1969 until 15 May 1970, constitutes operational service and eligible war service as those terms are defined in sections 7 and 6C, respectively, of the Act. 

7.      Ms Carter-Nicoll submitted that there was evidence sufficient to enter diagnoses of post traumatic stress disorder and dysthymic disorder in response to Mr Byrne’s initial claim.  This was conceded by Mr Stoner and I am satisfied that there is evidence for the diagnosis of those conditions in the reports of psychiatrists, Dr Robert Athey and Dr Peter Mulholland.  I have also noted the report of Dr Jennifer Barry.  This leaves for determination the issues of whether Mr Byrne’s post traumatic stress disorder and/or dysthymic disorder are related to his operational service.

Respondent’s case

8.      Despite his concession that Mr Byrne had operational service in South Vietnam, Mr Stoner contended that, on 9 November 1969 when particular events involving Mr Byrne occurred, he was not rendering operational service at that time.  He submitted that it was not sufficient that a relevant event occurred during a nominal period of operational service and that the matter for determination was whether the relevant activity out of which a condition arose was a requirement of service or was sufficiently proximate to such a requirement.  In a written submission provided after the hearing, he referred to Re Winship and Repatriation Commission (1990) 20 ALD 101 to support the proposition that simply being on war service was not sufficient to establish a requisite connection to service. He submitted that one could not ignore the distinction between the cause of events and the setting in which they occurred. He also referred to Repatriation Commission v Law (1980) 31 ALR 140, Wedderspoon v Minister of Pensions [1947] 1 KB 562 at 564 and Holthouse v Repatriation…