Drew and Repatriation Commission - [2007] AATA 2040

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2040
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600431

VETERANS' APPEALS DIVISION )

Re BERNARD DREW

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr R G Kenny, Member

Date 11 December 2007
Place Brisbane

Decision

The Tribunal affirms the decision under review.

..................[Sgd]............................
RG Kenny
Member

CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service with Royal Australian Navy – application of Statements of Principles – appropriate diagnosis of psychiatric conditions – criterion A for post traumatic stress disorder not met – effects of being confined below deck –post traumatic stress disorder not war-caused – decision affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 69, 120, 120A
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Smith (1987) 15 FCR 327
Budworth and Repatriation Commission [2000] AATA 127
Mines v Repatriation Commission (2004) 86 ALD 62
REASONS FOR DECISION

11 December 2007

Mr RG Kenny, Member

Background
1. Bernard Drew (the applicant) served in the Royal Australian Navy (RAN) between 1968 and 1988. On 18 July 2005, he lodged with the Repatriation Commission (the respondent), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (the Act), a claim for a disability pension for “PTSD” which he contended was related to his RAN service. On 8 September 2005, the respondent accepted that Mr Drew suffered from post traumatic stress disorder but determined that it was not related to his service. On 2 March 2006, the Veterans’ Review Board (the Board) affirmed the decision and Mr Drew now seeks further review by the Administrative Appeals Tribunal (the Tribunal).
Service and Standard of Proof
2. Mr Drew’s RAN service after 7 December 1972 comprised defence service as provided for in s 69 of the Act. However, no contentions have been raised in relation to that service and I am reasonably satisfied that it is not relevant to Mr Drew’s claim. From 14 May 1969 until 25 May 1969, he served on HMAS Vampire on voyages to and from South Vietnam and for some hours in Vung Tau Harbour. This constitutes eligible war service in the form of operational service as provided for in s 7 and s 6C of the Act respectively.
3. The standard of proof for determining diagnostic matters under the Act is provided for in subsection 120(4) thereof and this requires that such matters be determined to the Tribunal’s reasonable satisfaction: see Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373. That imports the civil standard of proof so that matters must be determined on the balance of probabilities: see Repatriation Commission v Smith (1987) 15 FCR 327 at 335. The standard of proof applicable to issues of causation for operational service is set out in s 120(1) of the Act which reads:
“Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates…

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 Drew and Repatriation Commission

Details

AGLC: Drew and Repatriation Commission [2007] AATA 2040
Case: [2007] AATA 2040
Decision Date: 11 December 2007

CaseChat Overview and Summary

Drew, a former member of the Royal Australian Navy, lodged an application for a disability pension under the Veterans’ Entitlements Act 1986. He sought compensation for alleged psychiatric conditions resulting from his service. The Repatriation Commission declined the application, prompting Drew to appeal to the Administrative Appeals Tribunal. The dispute centred on the appropriate diagnosis of Drew's psychiatric conditions and whether they met the criteria for a war-caused disability under the relevant legislative provisions.

The central legal issues before the Tribunal were whether Drew's psychiatric conditions were appropriately diagnosed and whether they met the threshold for a war-caused disability. Specifically, the Tribunal needed to determine if Drew's post-traumatic stress disorder (PTSD) met the criteria set out in the relevant Statements of Principles, particularly criterion A, which requires exposure to a warlike or operationally dangerous situation. The Tribunal also considered whether the effects of being confined below deck during his service qualified as a war-related event.

In reaching its decision, the Tribunal reviewed the evidence provided by Drew and assessed the applicable Statements of Principles. The Tribunal found that Drew's PTSD was not appropriately diagnosed as it did not meet criterion A for a war-related event. The Tribunal emphasised that the effects of being confined below deck did not constitute a warlike situation sufficient to trigger PTSD under the legislative criteria. The Tribunal concluded that the Commission's decision to deny the disability pension was correct and affirmed the decision.

In affirming the decision, the Tribunal upheld the Repatriation Commission's finding that Drew's psychiatric conditions did not qualify for a war-caused disability pension. The Tribunal found no basis to overturn the original decision, confirming that the application was appropriately declined under the legislative framework.

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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