Cooke and Repatriation Commission - [2003] AATA 100

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 100
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/999

VETERANS’ AFFAIRS DIVISION )

Re Graham Robert Cooke

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal P.J. Lindsay, Senior Member, Dr P. Lynch, Member
Date4 February 2003
PlaceSydney

Decision The Tribunal affirms the decision under review refusing the claim for post traumatic stress disorder as a war-caused disease.

(sgd) P. J. Lindsay
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service –– diagnosis of psychiatric symptoms – whether post traumatic stress disorder properly diagnosed – whether dysthymic disorder war-caused – decision affirmed.
Veterans’ Entitlement Act 1986, ss. 9, 120, 120A, 196B
Repatriation Medical Authority Statements of Principles:
-     Instrument No. 15 of 1994 concerning Post Traumatic Stress Disorder as amended by     Instrument No. 225 of 1995
-     Instrument No. 3 of 1999 concerning Post Traumatic Stress Disorder as amended by Instrument No. 54 of 1999.
-     Instrument No. 58 of 1998 concerning Depressive Disorder.
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Hill [2002] FCAFC 192
Fogarty v Repatriation Commission [2002] FCA 1541
Repatriation Commission v Budworth (2001) 66 ALD 285
Benjamin v Repatriation Commission (2001) 34 AAR 270
Re Howe and Repatriation Commission [1999] AATA 1006
O’Neil v Repatriation Commission (2001) 34 AAR 290
Re Freeman and Repatriation Commission [2000] AATA 727
Re Budworth and Repatriation Commission [2000] AATA 127
Re Powell and Repatriation Commission[2000] AATA 385
Repatriation Commission v Gorton (2001) 65 ALD 609
REASONS FOR DECISION

P.J. Lindsay, Senior Member, Dr P. Lynch, Member.

1.      This is an application under the Veterans Entitlements Act 1986 (the Act) for review of a decision by the Repatriation Commission (the Commission) which refused Mr Cooke’s claim for acceptance of post traumatic stress disorder (PTSD) as a war-caused disease under the Act. The decision was affirmed by the Veterans’ Review Board (the Board).
2. Ms J. Buchanan, solicitor, appeared for Mr Cooke. The Commission was represented by Mr J. Marsh from the Department of Veterans’ Affairs (the Department). Mr Cooke was the only witness to give evidence at the hearing. The Tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) and the exhibits tendered at the hearing.
Background
3.      Mr Cooke, who was born on 11 July 1940, served in the Royal Australian Navy from 28 April 1958 to 27 April 1967 and from 13 September 1967 to 20 April 1979. Mr Cooke has periods of operational service in the Far-East Strategic Reserve in HMAS Anzac as follows:
·     25 March 1959 – 28 April 1959: Malaya to Singapore
·     12 May 1959 – 9 June 1959: Malaya to Singapore
·     18 June 1959 – 17 August 1959: Malaya to Singapore
·     31 August 1959 – 9 September 1959: Malaya to Singapore
·     18 September 1959 to 10 October 1959: Malaya to Singapore
·     16 November 1959 – 5 December 1959: Malaya to Singapore
He also rendered…

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 Cooke and Repatriation Commission

Details

AGLC: Cooke and Repatriation Commission [2003] AATA 100
Case: [2003] AATA 100
Decision Date: 4 February 2003

CaseChat Overview and Summary

In this matter, the appellant, Cooke, sought to challenge the Repatriation Commission’s decision to deny his claim for a disability pension on the grounds that his psychiatric symptoms were not caused by his operational service. The case was heard by the Administrative Appeals Tribunal (AAT), and the central issue revolved around whether Cooke's symptoms were properly diagnosed as post traumatic stress disorder (PTSD) and whether his dysthymic disorder was war-caused. The AAT was tasked with examining the evidence presented and determining the validity of Cooke's claims under the Veterans’ Entitlement Act 1986 and the relevant Repatriation Medical Authority Statements of Principles.

The legal issues before the AAT included the interpretation and application of the Veterans’ Entitlement Act 1986 and the relevant medical authority instruments concerning PTSD and depressive disorder. The Tribunal had to consider the diagnostic criteria set out in the Statements of Principles and assess whether Cooke’s symptoms met the criteria for a war-caused condition. Furthermore, the Tribunal had to evaluate the medical evidence and expert opinions to determine the onset and progression of Cooke’s psychiatric conditions in relation to his service. The case also required consideration of relevant case law, such as Repatriation Commission v Deledio, which provided guidance on the interpretation of PTSD and its connection to service-related events.

The Tribunal found that Cooke's claims were not substantiated by the evidence provided. It determined that Cooke's symptoms did not meet the diagnostic criteria for PTSD as outlined in the Statements of Principles, and there was insufficient evidence to establish that his dysthymic disorder was caused by his operational service. The Tribunal affirmed the Commission's decision, holding that Cooke had not satisfied the burden of proof required to establish his claims. The AAT concluded that the decision to deny the disability pension was legally sound and based on a proper consideration of the evidence and applicable legal principles.

The Tribunal’s decision was upheld, and Cooke's appeal was dismissed. The Tribunal’s findings and reasoning were detailed in its written reasons, providing clarity on the application of the relevant legislative and medical criteria to Cooke's case.

Orders

Orders of the court

The Tribunal affirms the decision under review refusing the claim for post traumatic stress disorder as a war-caused disease.

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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