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Daines and Repatriation Commission

Daines and Repatriation Commission

Case [2006] AATA 716 18 August 2006

Veterans' Entitlement

Disability Pension

Reasonable Hypothesis

Statements of Principles

Diagnosis

Veterans' Affairs

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Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 716
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/693

VETERANS' APPEALS DIVISION )

Re RALPH HERBERT DAINES

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member
Dr M E C Thorpe, Member
Date18 August 2006
PlaceSydney
DecisionThe decision under review is affirmed.

..................[sgd]...........................
Ms G Ettinger,
Presiding Member

CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlement – Disability Pension - Operational Service – Reasonable hypothesis - Statements of Principles – Generalised Anxiety Disorder and Alcohol Abuse claimed - Diagnosis – Decision affirmed on the basis of the diagnosis.
Veterans’ Entitlements Act 1986 ss 9, 120, 120A 120(1) 120(3)
Statement of Principles concerning Alcohol Dependence or Alcohol Abuse - Instrument No. 76 of 1998
Statement of Principles concerning Anxiety Disorder Instrument No.1 of 2000
Repatriation Commission v Cooke (1998) 52 ALD 1
Budworth v Repatriation Commission [2001] FCA 317
Benjamin v Repatriation Commission [2001] FCA 1879, (2001) 70 ALD 622
Repatriation Commission v Keeley (2000) 60 ALD 401
Gorton v Repatriation Commission (2001) 63 ALD 723
Repatriation Commission v Deledio (1998) 83 FCR 82
Constable v Repatriation Commission [2005] FCA 928
White v Repatriation Commission [2004] FCA 633
Lees v Repatriation Commission [2002] FACFC 398
Stoddart v Repatriation Commission (2003) 77 ALD 67
Repatriation Commission v Budworth (2001) 66 ALD 285
Repatriation Commission v Gosewinckel [1999] FCA 1273
REASONS FOR DECISION

18 August 2006
Ms G Ettinger, Senior Member

  Dr M E C Thorpe, Member

BACKGROUND
1.      Mr Daines is a musician who plays the clarinet and saxophone. He joined the Royal Australian Navy aged 15, on 14 January 1961 and remained there until 13 January 1971. He has also served two periods with the Royal Australian Air Force, from 1971 to 1973 and from 1982 to 1990. Mr Daines served on operational service in the Navy as a member of the crew of HMAS Melbourne from 31 May 1965 to 22 June 1965, and in the Navy Band from 26 May 1970 to 4 June 1970. Following that he was in the RAAF as solo clarinettist and head of the reed section from 1971 to 1973 until the Band was disbanded. He returned to civilian life, rejoining the RAAF in 1982. He remained there until 1990. It was during the period of operational service in 1970 when Mr Daines was in the Navy that he claims he suffered the severe stressors which have, he says, caused his anxiety condition and alcohol abuse.
2.      We noted that Mr Daines applied for post traumatic stress disorder to be accepted as war-caused in 2002, that the claim was not accepted. Then on 9 December 2003 he applied unsuccessfully to have anxiety accepted as war-caused. The Veterans Review Board affirmed the decision of the Repatriation Commission on 15 March 2005. It denied him his claim for anxiety on the ground that “no medical condition was present to answer the claim”. Mr Daines has applied to this Tribunal for 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 Daines and Repatriation Commission

Details

AGLC: Daines and Repatriation Commission [2006] AATA 716
Case: [2006] AATA 716
Decision Date: 18 August 2006

CaseChat Overview and Summary

The case of Daines and the Repatriation Commission involved an application for a Disability Pension under the Veterans’ Entitlements Act 1986. The applicant, Daines, claimed that he was entitled to the pension due to a generalised anxiety disorder and alcohol abuse resulting from his operational service. The dispute was heard in the Federal Court of Australia. The primary issue before the court was whether Daines had provided sufficient evidence to establish that his claimed conditions arose from his service, thereby qualifying for the pension.

The court considered the relevant legal principles, particularly the requirement for a reasonable hypothesis that the claimed conditions were caused by service. The court referenced previous cases and the Statements of Principles concerning Alcohol Dependence or Alcohol Abuse and Anxiety Disorder to determine the standard of proof needed. The applicant needed to demonstrate that it was more probable than not that his conditions were linked to his service, as per the reasoning in Repatriation Commission v Deledio. The court also noted the importance of medical diagnosis and evidence in substantiating the claims.

The court found that the applicant had not provided sufficient evidence to meet the threshold of a reasonable hypothesis. The diagnosis and evidence presented were insufficient to establish a causal link between the claimed conditions and the operational service. Consequently, the court affirmed the decision of the Repatriation Commission to deny the pension. The court emphasised that the applicant needed to present compelling evidence to establish the required connection between the service and the conditions, as outlined in the relevant legal precedents and statutory provisions.

Orders