Coulter and Repatriation Commission - [2008] AATA 1085

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1085
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200601094

VETERANS' APPEALS DIVISION )

Re BRIAN JOHN COULTER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr John Handley, Senior Member
Date4 December 2008
PlaceMelbourne

Decision The decision under review is set aside and in substitution IT IS DECIDED a reasonable hypothesis exists between the applicant's service in Vietnam and the illness of Posttraumatic Stress Disorder. The application is remitted to the respondent for assessment of pension.
(Sgd) John Handley
Senior Member

VETERANS' ENTITLEMENTS ‑ Vietnam service – applicant exposed to a number of events – whether life threatening (refer PTSD Statement of Principle No 5 of 2008 Factor 6 (a)) – being shot at and exposed to shooting – involvement in an aircraft accident as a passenger and potential detonation of a land mine are all life threatening events – few records of these events – observations of role of Writeway consultants and reports – decision set aside
Veterans’ Entitlements Act 1986 (Cth) s 120(1)
Mines v Repatriation Commission [2004] FCA 1331
Re Giger and Repatriation Commission [2007] AATA 2000
Re Sanderson and Repatriation Commission [2008] AATA 891
refer Hardman v Repatriation Commission [2005] FCAFC 83
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Hill [2002] FCAFC 192
Statement of Principles No 5 of 2008 Factor 6 (a)
REASONS FOR DECISION

4 December 2008   Mr John Handley, Senior Member

1.      Mr Coulter, the applicant in these proceedings, applies to review a decision made by the Veterans' Review Board (VRB) on 1 September 2006. The VRB then affirmed a decision previously made by the respondent refusing his application for acceptance of the condition of posttraumatic stress disorder (PTSD).
2.      The applicant is 71 years of age and has been receiving 100 percent of the general rate of pension since November 2004. He claimed PTSD / anxiety on 30 September 2002 (T5) when he was then in receipt of pension at 30 percent of the general rate. By this application he seeks to recover pension, at the general rate, greater than 30 percent beyond 30 September 2002 until 3 November 2004. He does not claim extreme disablement adjustment nor will he claim special rate pension.
3.      The applicant was engaged by the Australian Army (the Army) during two periods of service namely from 27 May 1964 until 26 May 1970 and from 27 May 1973 until 14 March 1984. The events in service which he alleges gave rise to PTSD occurred during a tour of Vietnam between 17 February 1968 and 18 February 1969. When the applicant arrived in Vietnam he held the rank of Captain and was first posted as the Second In Command of the 102 Field Workshop in Vung Tau. He was later transferred and became Commanding Officer of C Squadron in the 1^st Armament Regiment Workshop and later held a staff position at the No 1 Australian Logistical Support Headquarters.
4.      Prior to…

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 Coulter and Repatriation Commission

Details

AGLC: Coulter and Repatriation Commission [2008] AATA 1085
Case: [2008] AATA 1085
Decision Date: 4 December 2008

CaseChat Overview and Summary

In the matter of Coulter and Repatriation Commission, the applicant, Coulter, sought a review of a decision by the Repatriation Commission to deny a pension for Posttraumatic Stress Disorder (PTSD). The Federal Court was tasked with examining the merits of this decision. The central issue before the Court was whether a reasonable hypothesis existed between the applicant's military service in Vietnam and the development of PTSD. This required the Court to assess the evidence provided and determine if the Repatriation Commission's decision was legally sound.

The Court held that the Repatriation Commission had erred in its assessment of the evidence concerning the applicant's service and subsequent illness. The Commission had not adequately considered the evidence provided by the applicant and had not sufficiently weighed the likelihood of a causal connection between the service and the PTSD. The Court found that the evidence, when viewed as a whole, supported the existence of a reasonable hypothesis linking the applicant's service to the PTSD. As such, the Court concluded that the Commission's decision was not supported by the evidence and was therefore unreasonable.

Consequently, the Court set aside the decision under review and substituted its own decision that a reasonable hypothesis did exist between the applicant's service and the illness. The application was remitted back to the Repatriation Commission for reassessment of the pension application, ensuring that the evidence is properly considered and evaluated in light of the Court's findings. This outcome ensures that the applicant's claim is assessed fairly and in accordance with the relevant legal standards.

Orders

Orders of the court

The decision under review is set aside and in substitution IT IS DECIDED a reasonable hypothesis exists between the applicant's service in Vietnam and the illness of Posttraumatic Stress Disorder. The application is remitted to the respondent for assessment of pension.

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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