Constable and Repatriation Commission - [2004] AATA 1151

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1151
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/778

VETERANS’ APPEALS DIVISION
)

Re ROBERT PATRICK CONSTABLE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms M J Carstairs, Member
Date4 November 2004
PlaceTownsville

Decision The Tribunal affirms the decision under review.
[Sgd] Member

CATCHWORDS
VETERANS’ AFFAIRS – entitlement – whether alcohol abuse or dependence related to service – meaning of severe stressor – reasonable hypothesis
Veterans’ Entitlements Act 1986 ss 9, 120, 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
White v Repatriation Commission [2004] FCA 633
Stoddart v Repatriation Commission [2003] FCA 334
Repatriation Commission v Stoddart [2003] FCAFC 300
Re Stonehouse and Repatriation Commission [2004] AATA 707
Repatriation Commission v Hill [2002] FCAFC 192
REASONS FOR DECISION

4 November 2004
  Ms MJ Carstairs, Member

1.      This is an application by Robert Patrick Constable (the applicant) for review of a decision of the Repatriation Commission (the respondent) dated 27 March 2003 which determined that alcohol abuse was not related to service. This decision was affirmed by the Veterans’ Review Board (the VRB) on 22 July 2003.
2.      At the hearing in Townsville on 3 November 2004 Mr D Honchin of counsel, instructed by Purcell Taylor Lawyers represented the applicant. The respondent was represented by Mr J Stoner, a departmental advocate.
3. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 numbered T1-T6 as well as exhibits marked A1-A6 for the applicant and R1-R5 for the respondent.
BACKGROUND
4.      The applicant was born on 1 August 1941. He enlisted in the Australian Army on 4 November 1958 and was discharged on 4 November 1979 having reached the rank of Sergeant. After his service he obtained employment firstly as a driver security guard with Armaguard, a job that he subsequently lost after a drink driving offence. He then obtained security and cleaning work for a period of years, then garden maintenance, ceasing employment towards the end of 1999. He has not worked since.
5.      The applicant’s service in the Army included a period serving in Vietnam between 23 July 1969 and 23 July 1970. This period is operational service under the Veterans’ Entitlements Act 1986 (the Act). His other relevant service is the period from 7 December 1972 to 4 November 1979 which is eligible defence service under the Act. The applicant claimed in relation to alcohol abuse or dependence on 17 February 2003. When his claim was rejected by the VRB he lodged his appeal with the Tribunal on 11 September 2003. The applicant has a number of disabilities accepted as being related to his war service, including depressive disorder.
6.      The issue for the Tribunal in this application is whether his alcohol abuse or dependence, a diagnosis on which medical practitioners are in agreement, is attributable to his service.
EVIDENCE
7.       In his written claim dated 17 February 2003 the applicant claimed for alcohol abuse as a result…

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 Constable and Repatriation Commission

Details

AGLC: Constable and Repatriation Commission [2004] AATA 1151
Case: [2004] AATA 1151
Decision Date: 4 November 2004

CaseChat Overview and Summary

The case of Repatriation Commission v Deledio involves a dispute between the Repatriation Commission and the applicant, concerning the entitlement of the latter to certain benefits under the Veterans’ Entitlements Act 1986. The central issue before the court was whether the applicant's alcohol abuse or dependence was related to their military service and if it could be attributed to a severe stressor as defined by the Act. This determination hinges on the interpretation of the statutory provisions and the relevant case law that sets out the criteria for such entitlements.

The legal issues the court had to address were the interpretation of the term "severe stressor" and the connection between the applicant's service and his alcohol abuse or dependence. The court had to determine if the applicant’s condition could be reasonably hypothesised to have arisen from a severe stressor related to their military service, which would entitle them to benefits under the Act. This required a careful analysis of the legislative language and an examination of previous judicial decisions on the matter, including cases such as White v Repatriation Commission and Stoddart v Repatriation Commission.

The court's reasoning centred on the interpretation of the relevant sections of the Veterans’ Entitlements Act 1986 and the applicable case law. The court considered the legislative intent and the context in which the term "severe stressor" was used. It also assessed the applicant’s evidence and the medical reports to determine if there was a reasonable hypothesis that the applicant's condition was related to their service. Ultimately, the court concluded that the applicant's alcohol abuse or dependence did not arise from a severe stressor related to his service, and therefore, he was not entitled to the benefits he sought.

The Tribunal affirms the decision under review, upholding the Repatriation Commission’s decision that the applicant is not entitled to the benefits he claimed. This decision aligns with the court's findings that there was no reasonable hypothesis linking the applicant's alcohol abuse or dependence to a severe stressor related to his military service.

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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VETERANS’ APPEALS DIVISION		)
Re		ROBERT PATRICK CONSTABLE