DENNIS LEE and REPATRIATION COMMISSION - [2009] AATA 991

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 991
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1671

VETERANS APPEALS DIVISION )

Re DENNIS LEE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr J D Campbell, Member
Date24 December 2009
PlaceSydney

Decision The decision under review is affirmed.
.................[sgd]...........................
Dr J D Campbell
Member

CATCHWORDS
VETERANS’ AFFAIRS – entitlement claim – diagnosis of psychiatric condition – clinical onset – relationship to service – decision under review is affirmed
Veterans’ Entitlements Act 1986 – s 120, 120A
Benjamin v Repatriation Commission (2001) 64 ALD 411
East v Repatriation Commission (1987) 16 FCR 517
Lees v Repatriation Commission (2002) 125 FCR 331
Meehan v Repatriation Commission (2002) 35 AAR 353
Re Hardman and Repatriation Commission (2004) 82 ALD 381
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Hill (2002) 69 ALD 581
REASONS FOR DECISION

24 December 2009 Dr J D Campbell, Member

1. Mr Dennis Lee lodged an application with the Repatriation Commission on 12 June 2002. Mr Lee claimed the following new disabilities as being war or defence caused:
·Emotional disorder – “I have never felt right since my operational service. People tell me I have emotional problems.”
·Bronchitis – “Constant breathing problems and chest infections. I have used puffers and now developing a wheeze.”
·Impotence – “I have had this problem for the last 5 years.”

2. On 5 May 2003 the Repatriation Commission determined that:
·The claim for chronic airways limitation was accepted.
·The appropriate medical diagnosis for the claimed emotional disorder condition was dysthymic disorder, and adjustment disorder with mixed anxiety and depressed mood.
·The adjustment disorder with mixed anxiety and depressed mood, dysthymic disorder and impotence were not related to service.
·Disability pension was increased to 70 per cent of the General Rate with effect from 12 March 2002.

3. Mr Lee served in the Navy from 26 August 1957 until his free discharge dated 1 October 1977. Mr Lee had the following periods of service which are periods of operational service and eligible service pursuant to the Veterans’ Entitlements Act 1986:
·Operational service with the Far East Strategic Reserve
25 March 1959 to 28 April 1959
12 May 1959 to 9 June 1959
18 June 1959 to 30 July 1959
31 August 1959 to 9 September 1959
18 September 1959 to 10 October 1959
16 November 1959 to 5 December 1959
·Defence service (eligible service)
7 December 1972 to 1 October 1977

4. Mr Lee has the following conditions accepted as service related:
·Recurrent low back strain
·Lumbar spondylosis
·Chronic airways limitation

5. On 16 August 2006 the Veterans’ Review Board affirmed the earlier decision dated 5 May 2003 of the Repatriation Commission that Mr Lee’s adjustment disorder with mixed anxiety and depressed mood, dysthymic disorder and impotence was not related to his service.
ISSUES
6. The relevant issues in this matter are:
(a)Does Mr Lee suffer from a psychiatric condition, and if so what is the diagnosis 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 DENNIS LEE and REPATRIATION COMMISSION

Details

AGLC: DENNIS LEE and REPATRIATION COMMISSION [2009] AATA 991
Case: [2009] AATA 991
Decision Date: 24 December 2009

CaseChat Overview and Summary

Dennis Lee filed a claim for benefits under the Veterans’ Entitlements Act 1986, seeking compensation for a psychiatric condition he argued arose from his service. The Repatriation Commission dismissed his claim, prompting an appeal to the Federal Court of Australia. The court had to determine whether Lee's psychiatric condition met the statutory criteria for compensation, specifically if it was linked to his service and whether it had a clinical onset after his service ended.

The primary legal issue was whether Lee's psychiatric condition was related to his service and if it had a clinical onset post-service. The court examined the evidence presented regarding the onset of the condition and its connection to the service. It also considered previous cases such as Repatriation Commission v Deledio and Repatriation Commission v Hill, which set precedents for clinical onset and the connection between service and the psychiatric condition. The court applied these precedents to assess whether Lee's claim met the necessary legal standards.

The court found that Lee's psychiatric condition did not meet the criteria for compensation under the Act. The evidence did not sufficiently establish that the condition had a clinical onset after the service or was directly related to it. The court relied on the reasoning in cases such as Benjamin v Repatriation Commission and East v Repatriation Commission, which emphasised the need for a clear link between the condition and the service. The Federal Court upheld the Commission's decision, affirming that Lee's claim did not satisfy the statutory requirements.

The final orders of the court were to affirm the decision of the Repatriation Commission. Lee's appeal was dismissed, and the original decision denying his claim for benefits was upheld.

Orders

Orders of the court

The decision under review is affirmed.

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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