Dadge and Repatriation Commission - [2008] AATA 473

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 473
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1826

VETERANS' APPEALS DIVISION )

Re KEVIN DADGE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date6 June 2008
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..............Signed...............
Deputy President

CATCHWORDS
VETERANS’ AFFAIRS – entitlement to compensation – operational service – question of what medical conditions applicant suffers from – whether medical conditions are war-caused – condition of post-traumatic stress disorder not accepted as there is no sufficiently traumatic event – condition of generalised anxiety disorder not accepted as the hypothesis put forward is not reasonable – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth) – ss 13, 120, 120A, 196B
Bull v Repatriation Commission (2001) 66 ALD 271
Drew v Repatriation Commission [2008] FCA 537
East v Repatriation Commission (1987) 16 FCR 517
Mines v Repatriation Commission (2004) 86 ALD 62
Repatriation Commission v Cornelius [2002] FCA 750
Robertson and Repatriation Commission (1998) 50 ALD 668
REASONS FOR DECISION

6 June 2008 Deputy President P E Hack SC

Introduction
1.The applicant, Mr Kevin Dadge, served in the Royal Australian Air Force between January 1966 and May 1988. During that time he performed “operational service”, (as that term is used in the Veterans’ Entitlements Act 1986 (Cth) (the VEA)) in Vietnam between November 1970 and June 1971.
2.Mr Dadge says that he suffers from medical conditions that were caused by his operational service and that, accordingly, the Commonwealth is liable to pay him a pension. His claim was rejected by the respondent, the Repatriation Commission, in August 2005. That refusal was affirmed by the Veterans’ Review Board on 16 April 2007.
3.Mr Dadge now seeks a review in this Tribunal.
4.There are, speaking broadly, two issues to be decided:
(a)      what medical conditions does Mr Dadge suffer from?
(b)      are those conditions war-caused by reference to the provisions   of the VEA?

The Statutory Scheme
5.By operation of s 13(1)(b) of the VEA, the Commonwealth is liable to pay a pension by way of compensation to a veteran who is incapacitated from a war-caused injury or disease.
6.Because the claim here made is in respect of incapacity from injury or disease that is said to relate to the operational service of Mr Dadge, the Commission, and the Tribunal in its stead, is bound to determine that the injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination[1]. Despite that, in making other determinations or decisions arising under the VEA, the Commission (and the Tribunal) is to decide those matters to its reasonable satisfaction[2]. The determination that must be made in the present case on that standard is the determination of diagnosis, that is, what condition Mr Dadge suffers from.
[1] See s 120(1) of the VEA.
[2] See s 120(4) of the VEA.
7.Once matters of diagnosis are determined it is then necessary to consider…

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 Dadge and Repatriation Commission

Details

AGLC: Dadge and Repatriation Commission [2008] AATA 473
Case: [2008] AATA 473
Decision Date: 6 June 2008

CaseChat Overview and Summary

The case of Dadge and Repatriation Commission involved an application by Dadge for compensation under the Veterans' Entitlements Act 1986. Dadge sought compensation for various medical conditions he claimed were caused by his operational service. The primary dispute was over whether Dadge's conditions were indeed war-caused and thus entitled him to compensation. The matter was heard and determined by the Administrative Appeals Tribunal (AAT).

The legal issues that the AAT needed to address included the identification and classification of Dadge's medical conditions, the determination of whether these conditions were caused by his service, and the application of relevant statutory provisions to these facts. Specifically, the AAT had to examine whether the evidence supported Dadge's claims of post-traumatic stress disorder (PTSD) and generalised anxiety disorder (GAD) and whether these conditions could be traced to his operational service.

The AAT concluded that Dadge did not suffer from PTSD as there was insufficient evidence of a sufficiently traumatic event during his service. Additionally, the AAT found that the hypothesis proposed regarding Dadge's GAD was not reasonable. Therefore, the AAT determined that the decision under review, which denied Dadge's claim, was correct and affirmed it. The Tribunal relied on previous cases such as Bull v Repatriation Commission, Drew v Repatriation Commission, and others to support its findings.

The final order of the Tribunal was to affirm the decision of the Repatriation Commission, denying Dadge's claim for compensation. This outcome hinged on the AAT's interpretation of the evidence and the application of statutory criteria to Dadge's medical conditions.

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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