Cruise and Repatriation Commission - [2007] AATA 1263

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1263
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2006/95

VETERANS' APPEALS DIVISION )

Re TERENCE WILLIAM CRUISE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-Time Member)
Date27 April 2007
PlaceHobart

Decision
1. The decision under review is set aside and in substitution thereof the Tribunal finds on the balance of probabilities the applicant's claimed disabilities of anxiety disorder and alcohol dependence are war-caused.

2. The matter is remitted to the Repatriation Commission for assessment of amended disability pension from 23 November 2004.

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Part-Time Member

CATCHWORDS
Veterans' Affairs - disability pension - claimed disabilities - anxiety disorder - alcohol dependence or alcohol abuse - hypertension - gastro-oesophageal reflux - whether war-caused - medical evidence - reasonable hypothesis - Statements of Principles (SOP) - Veterans' Review Board (VRB)
Veterans' Entitlements Act 1986 and Amendments, Sections 120(1) and 120(3), 120A and 120B
Note also Statements of Principles issued by the Repatriation Medical Authority
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Stoddard (2003) FCAFC 300
Woodward and Repatriation Commission (2003) 75 ALD 420
Repatriation Commssion v Constable (2006) FCAFC 102
Comino and Repatriation Commission (2007) AATA 1071
REASONS FOR DECISION

27 April 2007 Associate Professor B W Davis AM (Part-Time Member)

Decision Under Review:
1.      The decision under review is that part of the decision made by a delegate of the Repatriation Commission on 25 October 2005, subsequently affirmed by a decision of the Veterans’ Review Board on 3 April 2006, whereby the applicant’s claims to have anxiety disorder, alcohol dependence or alcohol abuse, hypertension and gastro-oesophageal reflux disease accepted as service-related were refused.
The Issue:
2.      The issue before the Tribunal is whether Mr Terence William Cruise’s claimed disabilities are war-caused ie whether they meet the criteria specified in subsections 120(1) and 120(3) of the Veterans’ Entitlements Act 1985 (the Act) and also Sections 120A and 120B.
Standard of Proof:
3.      The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal, as provided for in Section 120(4) of the Act,
Background:
4.      The applicant Terence William Cruise joined the Royal Australian Navy at age 16 years and served from 4 April 1965 to 3 April 1977. His eligible war service (which is also operational service) was from 27 May 1966 to 29 January 1967 in Malaysian waters on board HMAS Parramatta and from 3 September 1969 to 7 December 1970 in Vietnam on board HMAS Duchess.
5.      After leaving the navy in 1977 Mr Cruise joined his father in a mechanical business for about 20 years, then worked in other vocations prior to becoming a casual delivery driver about two years ago.
6.      Mr Cruise claims he first experienced symptoms of stress during naval service when HMAS Parramatta was headed towards hostile waters during the Malaysian confrontation. As a radio operator he was continually closed below and alarmed by noises and bangs, with…

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 Cruise and Repatriation Commission

Details

AGLC: Cruise and Repatriation Commission [2007] AATA 1263
Case: [2007] AATA 1263
Decision Date: 27 April 2007

CaseChat Overview and Summary

In the case before the court, the Repatriation Commission was asked to review a decision regarding the entitlement of an applicant to a disability pension based on several claimed disabilities. The applicant contended that his anxiety disorder, alcohol dependence, hypertension, and gastro-oesophageal reflux were war-caused and thus eligible for pension benefits under the Veterans' Entitlements Act 1986. The matter was heard in the Federal Court of Australia.

The court was tasked with determining whether the applicant's claimed disabilities were caused by his war service. Specifically, it had to assess whether the Repatriation Commission had erred in its application of the law and facts in concluding that the applicant's disabilities were not war-caused. The applicant argued that the Commission had failed to properly consider the medical evidence and had not applied the correct legal test as outlined in the Statements of Principles issued by the Repatriation Medical Authority.

The court found that the Repatriation Commission had indeed made an error in its application of the law. It had not considered whether there was a reasonable hypothesis that the applicant's disabilities were war-caused, as required by the relevant sections of the Veterans' Entitlements Act. The court also determined that the Commission had not properly assessed the medical evidence, particularly in relation to the applicant's anxiety disorder and alcohol dependence. The Commission's decision was therefore set aside and the matter was remitted back to the Commission for reassessment of the disability pension from the date of the applicant's claim.

The court ordered that the decision under review be set aside, and in its place, the Tribunal found on the balance of probabilities that the applicant's claimed disabilities of anxiety disorder and alcohol dependence were war-caused. The matter was remitted to the Repatriation Commission for reassessment of the amended disability pension from 23 November 2004.

Orders

Orders of the court

1. The decision under review is set aside and in substitution thereof the Tribunal finds on the balance of probabilities the applicant's claimed disabilities of anxiety disorder and alcohol dependence are war-caused.

2. The matter is remitted to the Repatriation Commission for assessment of amended disability pension from 23 November 2004.

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		TERENCE WILLIAM CRUISE