Ducat and Repatriation Commission - [2002] AATA 314

DECISION AND REASONS FOR DECISION [2002] AATA 314

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/970

VETERANS' APPEALS DIVISION          )
           Re      AUTHUR JOHN DUCAT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr K L Beddoe, Senior Member

Date7 May 2002
PlaceBrisbane

Decision      The Tribunal decides: (a)    the decisions under review are set aside and substitutes therefore a decision that the applicant's conditions of: (i)        Alcohol Abuse or Dependence; (ii)           Generalised Anxiety Disorder; and (iii)    Depressive Disorder are war-caused.   (b)       The matter is remitted to the respondent for assessment of the degree of incapacity caused by the accepted disabilities.
  (Sgd) K L Beddoe
  Senior Member
Decision No 314/2002
CATCHWORDS
VETERANS' AFFAIRS – disability pension - war caused disabilities – Alcohol Abuse, Generalised Anxiety Disorder, Depressive Disorder
Veterans' Entitlements Act 1986 s 7A(1A), 7A(1)(a)(iii)

Gorton v Repatriation Commission [2001] FCA 1194
Repatriation Commission v Binding [1999] FCA 974
Repatriation Commission v Keeley (2000) 98 FCR 108

REASONS FOR DECISION

7 May 2002 Mr K L Beddoe, Senior Member

A delegate of the respondent, by decision dated 26 November 1999, refused the applicant's claim for disability pension and medical treatment for anxiety, depression, stress (later diagnosed as anxiety disorder, major depressive disorder and alcohol abuse) and gastro-oesophageal reflux disease. The applicant's claim for alcohol abuse, major depressive disorder and anxiety disorder were refused on the ground that the conditions were neither war nor defence caused, and the claim for gastro-oesophageal reflux disease was refused on the ground that the condition was not present in the applicant.
The applicant sought a review under Veterans' Entitlements Act 1986 ("the Act") by letter which was received by the respondent on 20 December 1999.
At the hearing by the Board, the claim with regard to gastro-oesophageal reflux disease was withdrawn. By a decision dated 25 August 2000, the Veterans' Review Board consented to the withdrawal of gastro-oesophageal reflux disease from its consideration and affirmed the decision under review in relation to anxiety disorder, major depressive disorder and alcohol dependence or alcohol abuse. The applicant lodged an application for review in this Tribunal dated 9 October 2000 and received in the Tribunal on 16 October 2000. The matter was heard by me at Townsville on 18 September 2001.
Mr Honchin represented the applicant and Mr Stoner represented the respondent. Dr Likely, Consultant Psychiatrist; Dr Richards, Psychiatrist; and the applicant gave evidence at the hearing. The documentary evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T" Documents), and a number of exhibits tendered as follows:

Exhibit A – Statement by Authur John Ducat dated 1 February 2001
Exhibit B – Report by Dr Michael Likely, Consultant Psychiatrist, dated 9 May 2001
Exhibit C - DSM-IV – Diagnostic an Statistical Manual of Mental Disorders Fourth Edition
Exhibit 1 – Report by Dr Wilfred Richards, Psychiatrist, dated 8 March 2001

The applicant served in the Australian Army from 3 July 1967 to 2 July 1989. His eligible war…

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 Ducat and Repatriation Commission

Details

AGLC: Ducat and Repatriation Commission [2002] AATA 314
Case: [2002] AATA 314
Decision Date: 7 May 2002

CaseChat Overview and Summary

Ducat sought a review of a decision of the Administrative Appeals Tribunal (AAT) that had dismissed an appeal against a decision of the Repatriation Commission to refuse to award a disability pension for three conditions: Alcohol Abuse, Generalised Anxiety Disorder, and Depressive Disorder. The Full Federal Court heard the appeal from the AAT. The primary issue for determination was which Statement of Principles (SoP) should apply in assessing the applicant's claim for a disability pension. The applicant argued that the SoP applicable to his claim should be the earlier SoP as it was more favourable to him. The Repatriation Commission contended that the later SoP should apply.

The Court held that it was not necessary to rely on the reasoning that led the Court to lean towards applying the earlier SoP in certain circumstances, particularly where the later SoP is more beneficial. The Court found that the AAT was obliged to consider the applicant's claim in the context of the later SoP, unless the earlier SoP was more favourable. In this case, the later SoP was not more favourable, and therefore the AAT was obliged to consider the applicant's claim in the context of the later SoP. The Court also found that the applicant's credit was not in issue as the first history he gave to Dr Likely differed from later histories. The Court accepted Dr Likely's explanation of the reason for the applicant's volunteering for service in East Timor, finding it plausible and understandable in the context of the applicant's history of preferring the company of service personnel or no company at all.

The Court remitted the matter to the AAT for reconsideration in light of the Court's findings.

Orders

Orders of the court

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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

It was contended that the applicant's credit was in issue as the first history he gave to Dr Likely differed from later histories.Consideration Both parties have provided arguments regarding which SoP, if any should apply to the three conditions claimed by the applicant. Both parties have agreed that the relevant SoP for the agreed condition "Alcohol Dependence or Alcohol Abuse" is Instrument No 76 of 1998. There has been no further SoP published with regard to this condition. In Gordon v Repatriation Commission [2001] FCA 286, Stone J stated at paragraphs 23 and 24:"In my opinion, it is not necessary where the later statement of principles is more beneficial, to rely on the reasoning that led the Court in Keeley to lean towards applying the earlier (and more beneficial) Statement of Principles. In particular, the decision in Keeley was based, in part, on the view that, with beneficial legislation such as the Act, a construction of substantive provisions least likely to cause unfairness is to be preferred. The decision in Keeley is not authority for the principle that, when choosing among current or revoked statements, the revoked statement is the one that applies. The Act provides in s 196B(7) and (8) for the continual updating of Statements of Principle so that current statements embody sound medical-scientific evidence against which claims are assessed. In providing for the Board to review decisions of the Repatriation Commission on the merits taking into account not only material considered by the Commission but also additional evidence, the Act evinces an intention for the claim to be assessed in the light of all available evidence, including medico-legal evidence as embodied in the most recent Statement of Principles; ss 138 and 139. The AAT also has the duty to review decisions of the Board on the merits and conduct a complete rehearing of the claim. As Bowen CJ and Deane J commented in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 in relation to appeals to the AAT,"The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal."24 The decision of the Court in Keeley can thus be seen as an exception to this position, dictated by the beneficial nature of the legislation to which the Court referred. The exception applies to preserve the benefit of an existing entitlement to be assessed in the context of a more favourable Statement of Principles. In my opinion, the AAT is obliged to consider the applicant's claim in the context of the Statement of Principles No 25 of 1999 unless Instrument 83 is more favourable. If the latter position is the case, then the applicant's claim must be considered in the context of Instrument 83. " I accept Dr Likely's explanation of the reason for applicant's volunteering for service in East Timor. The explanation is plausible and understandable in a person who has evidenced even during his married life, the preference or need (I am not in a position to state which) for the exclusive company of service personnel or in the alternative, preferred no company at all as provided by Dr Richard's report.