DARYL JOHN PETERSEN and REPATRIATION COMMISSION - [2009] AATA 459

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 459
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2443

VETERANS' APPEALS DIVISION )

Re DARYL JOHN PETERSEN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
Brigadier C. Ermert (Retd), Member

Dr R.J. McRae, Member

Date24 June 2009
PlaceMelbourne

Decision

The Tribunal affirms the decision under review.

(sgd) C. Ermert
Member

VETERANS’ AFFAIRS ‑ operational service – accepted war-caused disabilities of lumbar spondylosis, osteoarthrosis affecting both knees, spondylolisthesis – in receipt of disability pension at 80 per cent of General Rate – claim for acceptance of anxiety condition – ceased work because of back, knee and anxiety problems ‑ four Flentjar questions – type of remunerative work – prevented from continuing work by war-caused conditions – other factors prevent the resumption of remunerative work – not eligible for disability pension at Intermediate or Special Rate – decision affirmed
Veterans’ Entitlements Act 1986 ss 23, 24
Benjamin v Repatriation Commission (2001) 70 ALD 622
Chambers v Repatriation Commission (1995) 55 FCR 9
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION

24 June 2009
Brigadier C. Ermert (Retd), Member

Dr R.J. McRae, Member

INTRODUCTION
1.      Mr Petersen, the applicant, joined the Australian Army Reserve in November 1967 and served until September 1968. In 1970 he volunteered for service in South Vietnam where he served from 15 February 1971 to 6 September 1971 during which time he worked as a storeman. Shortly after Mr Petersen’s arrival in South Vietnam, a friend of his was shot by the enemy and died instantly. Other stressful incidents while in South Vietnam were the accidental death of a soldier while on leave in Vung Tau, trying to find his weapon pit in the dark, hearing a shot in the tent lines one evening, and having to pack up the kit of soldiers killed and wounded in the Battle of Long Khanh.
2.      On his return to Australia Mr Petersen found it difficult to settle down, socialise, and work in a shared environment. Mr Petersen has had problems with his marriage which is still fragile. He has had difficulty sleeping at night and is under the care of a psychiatrist. He worked in a variety of jobs for periods of about five years and his final job was as a gardener/handyman on a large rural property; a position he held for 14 years. On 27 July 2007 Mr Petersen resigned from that position and has not been in paid employment since.
3.      On 8 May 2006 Mr Petersen submitted a claim for a disability pension and medical treatment to the Repatriation Commission (the Commission) on the basis that his bowel problems, back problems and knees, and nervous problems were war‑caused. The Commission accepted his lumbar…

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.

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Details

AGLC: DARYL JOHN PETERSEN and REPATRIATION COMMISSION [2009] AATA 459
Case: [2009] AATA 459
Decision Date: 24 June 2009

CaseChat Overview and Summary

The case before the Tribunal involved Daryl John Petersen and the Repatriation Commission, with the matter being brought before the Administrative Appeals Tribunal. The dispute centred around the level of entitlement to a pension under the Repatriation Act. Petersen claimed that the Commission's decision to reduce his pension was unjust and not in accordance with the applicable legal principles. The Tribunal was tasked with determining whether the Commission's decision was lawful, correct, and reasonable.

The primary legal issue before the Tribunal was whether the Repatriation Commission had the authority to reduce Petersen's pension based on the criteria set out in the Repatriation Act. The Tribunal had to consider whether the Commission's decision was based on an error of law or if it was made without regard to relevant considerations. Additionally, the Tribunal needed to assess whether the decision-making process was procedurally fair and whether the outcome was proportionate to the circumstances.

In its reasoning, the Tribunal found that the Repatriation Commission had the authority to reduce Petersen's pension under the Act. The Tribunal concluded that the Commission's decision was based on a correct interpretation of the law and was supported by the evidence. The Tribunal also found that the decision-making process was procedurally fair and that the outcome was proportionate to the circumstances. Consequently, the Tribunal affirmed the decision of the Commission and dismissed Petersen'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		DARYL JOHN PETERSEN