Cannon and Repatriation Commission - [2008] AATA 662

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 662
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200700028

VETERANS' APPEALS DIVISION )

Re RONALD JOHN CANNON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)
Date31 July 2008
PlaceAdelaide

Decision
The Tribunal affirms the decision under review.

..............................................
J G SHORT
(Member)

CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – operational service – claim that alcohol dependence was war-caused – inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse – decision under review affirmed
Veterans’ Entitlements Act 1986 ss 5B, 6, 9, 13, 120(1), 120(3), 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Lees v Repatriation Commission (2002) 125 FCR 331
Statement of Principles Instrument No 76 of 1998
Statement of Principles Instrument No 17 of 2008
REASONS FOR DECISION

31 July 2008   Mr J G Short (Member)

1.      On 4 August 2005 Mr Ronald Cannon lodged an application for acceptance of “alcohol abuse/dependence” as war-caused. Mr Cannon served in the Royal Australian Navy (the Navy) from 23 August 1969 until 12 July 1972. His only period of eligible service, which was also operational service, was from 16 March 1970 until 9 October 1970 while serving on HMAS Hobart. Mr Cannon contended that his alcohol dependence was relevantly related to his eligible war service through an “inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse”. His claim was rejected by the respondent (the Commission) on 14 July 2006 and that decision was affirmed by the Veterans’ Review Board (the VRB) on 5 December 2006.
2.      A number of issues were agreed between the parties, including the current diagnosis of alcohol dependence and the existence of a relevant Statement of Principles (SoP) concerning alcohol dependence and alcohol abuse, being Instrument No 17 of 2008. Mr Cannon suggested that his circumstances satisfied factor 6(i):
“6.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service is:
…
(i)inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.”

3. Paragraph 7 of Instrument No 17 of 2008 directs that paragraph 6(i) will:
“… apply only to material contribution to, or aggravation of, alcohol dependence or alcohol abuse where the person’s alcohol dependence or alcohol abuse was suffered or contracted before or during (but not arising out of) the person’s relevant service.”

It was agreed between the parties that Mr Cannon’s alcohol dependence or abuse did not arise out of his operational service. This is consistent with a finding I made on 12 May 2005, after considering…

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 Cannon and Repatriation Commission

Details

AGLC: Cannon and Repatriation Commission [2008] AATA 662
Case: [2008] AATA 662
Decision Date: 31 July 2008

CaseChat Overview and Summary

The Repatriation Commission was the respondent in a case brought by a veteran, Mr Cannon, regarding his entitlements under the Veterans' Entitlements Act 1986. Mr Cannon sought compensation for an alcohol dependence he claimed was caused by his operational service during his military career. The matter was initially heard and decided against Mr Cannon by the Commission, and he appealed that decision to the Administrative Appeals Tribunal (AAT). The AAT was tasked with determining whether the Commission's decision was correct and, if not, what the appropriate remedy might be.

The legal issues before the AAT involved interpreting and applying the Veterans' Entitlements Act 1986, particularly in relation to the definition of "war-caused" conditions and the availability of entitlements for alcohol dependence. The AAT had to consider whether Mr Cannon's alcohol dependence could be classified as a condition caused by his operational service and whether he was eligible for compensation under the Act. Relevant case law and statutory instruments, such as Statement of Principles Instrument No 76 of 1998 and Statement of Principles Instrument No 17 of 2008, provided context and guidance for the decision.

After reviewing the evidence and applicable legal principles, the AAT found that the Commission's decision was well-reasoned and supported by the evidence. The Tribunal held that Mr Cannon's alcohol dependence did not meet the criteria for being considered a war-caused condition under the Act. Consequently, the AAT affirmed the original decision of the Commission, dismissing Mr Cannon's appeal. This decision was based on the lack of sufficient evidence linking his alcohol dependence directly to his operational service and the absence of appropriate clinical management for the condition.

The final orders of the AAT were that the decision of the Repatriation Commission, denying Mr Cannon's claim for compensation for his alcohol dependence, be affirmed. The appeal was dismissed, and no further compensation or entitlements were granted to Mr Cannon.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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