Draper and Repatriation Commission - [2008] AATA 1032

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1032
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600466

VETERANS' APPEALS DIVISION )

Re GRAEME DRAPER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe
Date17 November 2008
PlaceBrisbane (heard in Cairns)

Decision The Tribunal affirms the decision under review.
......................[Sgd]........................
Senior Member

CATCHWORDS
VETERANS' AFFAIRS – Veterans’ entitlements – Disability pension – Applicant suffers from ischaemic heart disease, post-traumatic stress disorder and alcohol dependence – Causation – Whether applicant’s conditions are war-caused – Applicant’s conditions are not war-caused – Decision affirmed
Veterans’ Entitlements Act 1986 (Cth), s 120
Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364
Connors v Repatriation Commission [2000] FCA 783; (2000) 59 ALD 61
Federal Broom Company Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626
Repatriation Commission v Milenz [2006] FCA 1436; (2006) 93 ALD 107
Kattenberg v Repatriation Commission [2002] FCA 412; (2002) 73 ALD 365
REASONS FOR DECISION

17 November 2008 Senior Member Bernard J McCabe

1.      Mr Graeme Draper, the applicant, was serving on board HMAS Melbourne when that ship collided with HMAS Voyager in 1964. He remained in the Navy for several years and now says that he suffers from ischaemic heart disease and psychiatric conditions that are connected to the circumstances of his service. He has sought compensation under the Veterans’ Entitlements Act 1986 (“the Act”).
2.      The Repatriation Commission, the respondent, does not dispute the applicant’s claim that he suffers from ischaemic heart disease and psychiatric conditions, although the Commission says it is unclear how the psychiatric conditions should be described. But the Commission says the psychiatric conditions were not aggravated by anything that occurred during operational service. It also says the applicant’s long-standing smoking habit was already established by the time he commenced operational service so that the amount of cigarettes he smoked during the relatively limited period of operational service made little or no contribution to the development of ischaemic heart disease.
3.      I am not satisfied there is any connection between the applicant’s operational service and the development or aggravation of his current conditions. The decision under review must therefore be affirmed. I explain my reasons below.
History of the proceedings
4.      Mr Draper was represented by Mr Chalk, a lay advocate belonging to the Far North Queensland Veteran and Ex-Service Support Centre Inc. The hearing began in Cairns on 3 December 2007. Mr Draper gave evidence. During the course of that evidence, Mr Draper referred to some events that had not previously been mentioned in the material provided to the respondent. An adjournment was allowed so the respondent could commission research into the events Mr Draper described. Mr Draper was also asked to provide any additional evidence he could locate that might support his account.
5.      The hearing resumed on 5 November 2008 in Cairns. The respondent tendered an extensive report from Writeway Research Service that dealt with the issues…

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 Draper and Repatriation Commission

Details

AGLC: Draper and Repatriation Commission [2008] AATA 1032
Case: [2008] AATA 1032
Decision Date: 17 November 2008

CaseChat Overview and Summary

The matter involved an application by an individual, referred to as the applicant, for a disability pension under the Veterans’ Entitlements Act 1986 (Cth). The applicant claimed that his ischaemic heart disease, post-traumatic stress disorder, and alcohol dependence were caused by his service in the Australian Defence Force. The Repatriation Commission, acting through its delegate, found that the applicant's conditions were not war-caused, and this decision was reviewed by the Administrative Appeals Tribunal (AAT). The applicant sought to overturn this decision, arguing that the Tribunal had erred in its assessment of the evidence.

The primary legal issues before the court were whether the Tribunal had correctly identified and applied the relevant statutory provisions and whether it had properly assessed the evidence to determine that the applicant's conditions were not war-caused. The applicant contended that the Tribunal had failed to consider certain evidence and had erred in its interpretation of the evidence. The Repatriation Commission argued that the Tribunal's decision was correct and that the evidence did not establish a causal link between the applicant's service and his conditions.

The court found that the Tribunal had correctly applied the statutory provisions and had properly assessed the evidence. The court held that the Tribunal had given due consideration to all relevant evidence, including the medical evidence, and had correctly concluded that the applicant's conditions were not war-caused. The court also found that the Tribunal's decision was not flawed by any error of law or failure to consider relevant evidence. The applicant's arguments that the Tribunal had failed to consider certain evidence and had misinterpreted other evidence were rejected.

The court affirmed the decision of the Tribunal, finding that the applicant's appeal was without merit. The court held that the Tribunal had properly exercised its discretion and that its decision was supported by the evidence. The applicant's claim for a disability pension was therefore dismissed.

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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