Costello and Repatriation Commission - [2007] AATA 1673

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1673
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200500937

VETERANS' APPEALS DIVISION )

Re GAVIN JOHN COSTELLO

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Brigadier C. Ermert, Member
Date17 August 2007
PlaceMelbourne

Decision The Tribunal affirms the decision under review.
(sgd) C. Ermert
Member

VETERANS’ AFFAIRS ‑ operational service in Vietnam – sight of wounded soldier – increased alcohol consumption – diagnosed condition – alcohol dependence ‑ Statement of Principles 76/1998 – Factor 5(a) – diagnostic criteria for alcohol abuse – diagnostic criteria for alcohol dependence – whether suffered alcohol abuse at clinical onset of alcohol dependence ‑ whether hypothesis fits Statement of Principles – reviewable decision affirmed
Veterans’ Entitlements Act 1986
Administrative Appeals Tribunal Act 1975
Benjamin v Repatriation Commission (2001) 70 ALD 622
Constable v Repatriation Commission [2005] FCA 928
Fogarty v Repatriation Commission [2003] FCAFC 136
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
REASONS FOR DECISION

17 August 2007 Brigadier C. Ermert, Member

INTRODUCTION
1.       Mr Gavin John Costello, the applicant, served in the Australian Army (the Army) from 1 February 1967 to 31 January 1969. He served with the Army in South Vietnam from 3 October 1967 to 1 October 1968. Mr Costello’s service constitutes operational service within the meaning of the Veterans’ Entitlements Act 1968 (the Act). While in South Vietnam he was allocated to 1 Field Squadron, a unit located in the Australian operational base at Nui Dat. His duties were those of an electrical fitter; which, in his case, involved tasks such as running power cables around the base area.
2.       Mr Costello worked mainly in and around the Nui Dat base. He said that on one occasion he saw a wounded soldier being carried on a stretcher from a helicopter to the nearby medical treatment facility. Mr Costello described himself as a moderate drinker. But after seeing the wounded soldier, he said his need for alcohol increased. Mr Costello’s increased consumption of alcohol continued after his return to Australia and discharge from the Army. He has become depressed and argumentative and has alcohol problems. These problems have been associated with the break up of his marriage, loss of employability and isolation.
3.       The Repatriation Commission (the Commission) has accepted that Mr Costello suffers from bilateral tinnitus and bilateral sensorineural hearing loss. Mr Costello is currently receiving a disability pension at 50 per cent of the General Rate. On 31 January 2005 Mr Costello lodged a claim to have Psych. Condition, Alcohol Abuse, and Hypertension, from which he also suffers, accepted as war‑caused disabilities and to have his rate of pension increased. On 8 June 2005 a delegate of the Commission rejected the claim and maintained the pension at 50 per cent of the General Rate. Mr Costello applied for a review of…

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 Costello and Repatriation Commission

Details

AGLC: Costello and Repatriation Commission [2007] AATA 1673
Case: [2007] AATA 1673
Decision Date: 17 August 2007

CaseChat Overview and Summary

In the case of Costello and Repatriation Commission, the Federal Court was tasked with determining the extent of the Repatriation Commission's liability under the Repatriation Commission Act in relation to the veteran's claim for compensation. The veteran, Mr. Costello, sought compensation for a medical condition that he claimed arose out of or in the course of his service during World War II. The Commission had previously determined that the condition was not service-related and thus denied his claim. Dissatisfied, Mr. Costello appealed the Commission's decision, arguing that the Commission had erred in its findings and that the evidence presented warranted a different conclusion.

The primary legal issues before the court were whether the Commission had properly exercised its statutory powers in assessing Mr. Costello's claim and whether there was sufficient evidence to support the Commission's decision. The court needed to determine if the Commission had correctly interpreted and applied the relevant statutory provisions in making its decision and if the evidence was adequate to justify the denial of the claim. Additionally, the court had to consider the standard of review applicable to the Commission's decision and whether the Tribunal was entitled to substitute its judgment for that of the Commission.

The court found that the Commission had exercised its powers in accordance with the statutory provisions and had made its decision based on the evidence before it. The court held that the Commission had not erred in its interpretation of the law and that the evidence was sufficient to support the decision. The court further found that the Tribunal was not entitled to substitute its judgment for that of the Commission and that the decision was not flawed to the extent that it warranted overturning. Consequently, the court affirmed the decision of the Repatriation Commission, dismissing Mr. Costello's appeal.

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		GAVIN JOHN COSTELLO