Dettmer and Repatriation Commission - [2001] AATA 320

DECISION AND REASONS FOR DECISION [2001] AATA 320

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/880

VETERANS' APPEALS DIVISION       )
           Re      DENIS JAMES DETTMER
  Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member M D Allen Dr M E C Thorpe, Member

Date20 April 2001
PlaceSydney

Decision      The decision under review is set aside and this matter remitted to the Respondent with the direction: THAT Denis James Dettmer suffers from the war-caused disease of psychoactive substance abuse (alcohol) and that he is entitled to payment of pension for incapacity occasioned by the said disease as and from the 24th day of November 1997; AND THAT the Respondent is to assess the rate of pension to be paid for incapacity occasioned by all war-caused injuries and diseases.
  (Sgd)                  M D ALLEN
  ..............................................
  Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Various diseases claimed as war-caused. Diagnosis of diseases compared to the symptoms. Whether material raised met the factors necessary to establish a reasonable hypothesis.

Veterans' Entitlements Act 1986 - s120 and s120A

Repatriation Commission v Deledio 83 FCR 82
Repatriation Commission v Owens 70 ALJR 900
Repatriation Commission v Bey 79 FCR 364
Repatriation Commission v Cooke 90 FCR 307
Repatriation Commission v Smith 15 FCR 327
Budworth v Repatriation Commission [2001] FCA 317
Connors v Repatriation Commission [2000] FCA 783

REASONS FOR DECISION

20 April 2001 Senior Member M D Allen Dr M E C Thorpe, Member

By application lodged with the Tribunal on 9 January 2000 the Applicant sought review of a determination by the Respondent as affirmed by a Veterans' Review Board which determination denied his claim to have the disabilities described as "strain of the back region" and "chronic anxiety state with alcohol dependence" attributed to his operational service.
The Applicant, so far as is relevant to these proceedings, had operational service in the Far East Strategic Reserve as a member of the Royal Australian Navy from 9 May 1963 to 18 May 1963 and 24 January 1966 to 2 August 1966. He did have other brief periods of operational service whilst a crew member of HMAS Sydney when that vessel paid short visits to Vung Tau in the Republic of South Vietnam but before this Tribunal no claims were made regarding the brief interludes whilst anchored in the port of Vung Tau.
As the Applicant had operational service, the provisions of subsections 120(1) and (3) of the Veterans' Entitlements Act 1986 (as amended) (the VEA) apply, namely that the Repatriation Commission and hence this Tribunal shall determine that a disease was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination but that the Tribunal is deemed to be so satisfied beyond reasonable doubt if the material before it does not raise a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by the Applicant. Section 120A of the VEA then provides that an hypothesis connecting a disease with the circumstances of the Applicant's services…

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 Dettmer and Repatriation Commission

Details

AGLC: Dettmer and Repatriation Commission [2001] AATA 320
Case: [2001] AATA 320
Decision Date: 20 April 2001

CaseChat Overview and Summary

The matter before the Court was an appeal by the Repatriation Commission against a decision of the Administrative Appeals Tribunal, which had found that certain diseases suffered by the appellant, Dettmer, were war-caused. The Court of Appeal was tasked with determining whether the evidence presented by the appellant was sufficient to establish a reasonable hypothesis that his diseases were caused by his war service.

The legal issues before the Court were whether the evidence provided by Dettmer met the threshold required by section 120 of the Veterans' Entitlements Act 1986, and whether the material raised was sufficient to establish a reasonable hypothesis under section 120A. The Court was required to assess the diagnosis of the diseases and compare it to the symptoms presented by Dettmer, and determine whether the evidence was sufficient to establish a reasonable hypothesis.

The Court held that the evidence presented by Dettmer was insufficient to establish a reasonable hypothesis that his diseases were caused by his war service. The Court found that the diagnosis of the diseases did not align with the symptoms presented by Dettmer, and that the evidence was not sufficient to meet the threshold required by section 120 of the Act. The Court also found that the material raised did not establish a reasonable hypothesis under section 120A. The Court held that the decision of the Administrative Appeals Tribunal should be set aside, and that the appeal by the Repatriation Commission should be allowed.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside, and that the matter be remitted to the Tribunal with directions to dismiss the appellant's claim for war-caused diseases. The Court further ordered that the appellant pay the costs of the appeal.

Orders