Drew v Repatriation Commission

[2008] FCA 537

FEDERAL COURT OF AUSTRALIA

Drew v Repatriation Commission [2008] FCA 537

VETERAN’S AFFAIRS – appeal from a decision of the Administrative Appeals Tribunal – disability pension – claim for pension for post-traumatic stress disorder – whether Tribunal considered relevant evidence of claimant

Veterans’ Entitlements Act 1986 (Cth), ss 9(1), 13, 120

Administrative Appeals Tribunal Act 1975 (Cth), ss 43(2B), 44

Fogarty v Repatriation Commission (2003) 37 AAR 363 applied

Repatriation Commission v Deledio (1998) 63 FCR 82 cited
Gerzina v Repatriation Commission [2004] FCAFC 96 cited
Willcocks v Comcare (2001) 66 ALD 119 applied

BERNARD PATRICK DREW v REPATRIATION COMMISSION

QUD 6 OF 2008

LOGAN J

15 APRIL 2008

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 6 OF 2008

BETWEEN:	BERNARD PATRICK DREW Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	15 APRIL 2008
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The Applicant is to pay the Respondent’s costs of the appeal, including reserved costs, if any.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 6 OF 2008

BETWEEN:	BERNARD PATRICK DREW Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	LOGAN J
DATE:	15 APRIL 2008
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. Having had the benefit of comprehensive written submissions which were, in turn, the subject of precise and helpful oral submissions from Counsel for both the Applicant and the Respondent, I have reached a clear view as to the disposition of this appeal.

2. The Applicant has recently turned 60.  Given the view that I have reached, it seems to me that it is preferable that I deliver judgment forthwith, rather than subject an ageing veteran to the anxiety of wondering as to the disposition of his appeal. 

3. The background to the case in terms of claims history and disposition before the administrative forums of the Commonwealth is as follows:

   1.On 18 July 2005 the Applicant made a claim to the Repatriation Commission (“Commission”) via the Department of Veterans’ Affairs for the acceptance of post-traumatic stress disorder as a war-caused injury or disease. 

   2.On 8 September 2005 the Commission, by a decision made by a delegate, rejected that claim.

   3.The Veterans’ Entitlements Act 1986 (Cth) (“Veterans’ Entitlements Act”) provides for two successive forms of external merits review of such a decision.  The Applicant took advantage of each of these review rights. 

   4.On 11 November 2005 he sought a review of the Commission’s rejection of his claim by the Veterans’ Review Board.

   5.On 2 March 2006 that board affirmed the decision of the Commission. 

   6.In turn, on 27 July 2006, the Applicant sought a review of the decision, as so affirmed, by the Administrative Appeals Tribunal (“the Tribunal”). 

   7.A hearing of that review application was held before the Tribunal in Townsville on 14 November 2007. 

   8.On 11 December 2007, for reasons that it then published, the Tribunal, constituted by Mr Kenny, Member,…