Dowling and Repatriation Commission - [2011] AATA 200

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 200
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2783

VETERANS' APPEALS DIVISION )

Re JENNIFER ANNE DOWLING

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member K Bean
Mr S J Ellis AM (Member)
Date28 March 2011
PlaceAdelaide

Decision
The decision under review is affirmed.

..............................................
K BEAN
(Senior Member)

CATCHWORDS
VETERANS' AFFAIRS – Veterans' entitlements – Operational service – Claims for major depressive disorder and osteoarthritis – Deledio steps – Reasonable hypotheses raised – Application of SoPs – Nothing “pointing to” existence of relevant factors in each SoP – Conditions not “war-caused” – Decision under review affirmed.
Veterans’ Entitlements Act 1986 ss 6, 9, 13(1), 119, 120, 120A, 196A
Statement of Principles Instrument No 13 of 2010
Statement of Principles Instrument No 31 of 2005
Statement of Principles Instrument No 27 of 2008
Statement of Principles Instrument No 58 of 1998
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) 175 CLR 408
Gorton v Repatriation Commission (2001) 63 ALD 723
Lees v Repatriation Commission (2002) 125 FCR 331
REASONS FOR DECISION

28 March 2011   Senior Member K Bean
  Mr S J Ellis AM (Member)

introduction
1.      The applicant, Ms Dowling, joined the Royal Australian Air Force (RAAF) in 1984 as a nursing officer. She was initially a reservist, but enlisted as a permanent member of the RAAF in March 1999. In July 2000 she was the senior nursing officer at RAAF Base Tindal in the Northern Territory when she was notified of a deployment to East Timor, commencing on 17 August 2000.
2.      Whilst Ms Dowling was in East Timor, she appears to have been subjected to significant harassment by the Army personnel who made up the majority of personnel at the facility at which she was working, and appears not to have been treated with the respect or consideration due to her rank. From a physical perspective, she also suffered discomfort at the base of her right thumb which she associated with being required to disassemble, clean and reassemble a rifle regularly throughout her deployment. She had previously suffered similar problems with the base of her left thumb.
3.      Following her return from Timor in February 2001, Ms Dowling unfortunately experienced a very difficult period in her life, being diagnosed with breast cancer in June 2001. She was also suffering from other difficulties at the same time, including knee pain, her son having schizophrenia and concern over her husband’s health. In 2004, she was diagnosed as suffering from major depression and on 20 June 2005, she lodged a claim for payment of disability pension in respect of a number of conditions including a depressive disorder and osteoarthritis/osteoarthrosis of the base of both thumbs.
4.      On 28 July 2006, the Repatriation Commission (the Commission) determined that osteoarthrosis of Ms Dowling’s left and right hands was not related to her operational service[1]. The Commission also determined…

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 Dowling and Repatriation Commission

Details

AGLC: Dowling and Repatriation Commission [2011] AATA 200
Case: [2011] AATA 200
Decision Date: 28 March 2011

CaseChat Overview and Summary

In the case of Dowling v Repatriation Commission, the applicant sought compensation for major depressive disorder and osteoarthritis, which he claimed were caused by his service in the armed forces. The matter was heard in the Administrative Appeals Tribunal (AAT) and subsequently appealed to the Federal Court of Australia. The core legal issue before the court was whether the applicant's conditions were caused by his service, as required under the Veterans' Entitlements Act 1986 (Cth). The court was required to determine if the applicant's claims met the criteria established by the Deledio steps, which assess the link between the service and the claimed conditions.

The court considered the evidence and the application of the Statements of Principles (SoPs) to the applicant's case. It was determined that the applicant had raised reasonable hypotheses regarding the causation of his conditions, but ultimately, the court found that there was insufficient evidence to conclude that the conditions were "war-caused" as per the Deledio steps. The court examined each SoP and found that nothing in the applicant's circumstances pointed to the existence of the relevant factors that would establish a causal link. Consequently, the court found that the applicant's conditions did not meet the statutory criteria for compensation.

The court upheld the AAT's decision, affirming the review decision. The court held that the applicant's claims did not satisfy the legislative requirements for a war-caused condition under the Veterans' Entitlements Act. Therefore, the decision of the AAT was correct and should stand. The applicant's appeal was dismissed, and the decision under review was affirmed.

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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VETERANS' APPEALS DIVISION		)
Re		JENNIFER ANNE DOWLING