Dunne and Repatriation Commission - [2004] AATA 827

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 827
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/1016

VETERANS' APPEALS DIVISION
)

Re JOHN DUNNE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms MJ Carstairs, Member
Date6 August 2004
PlaceBrisbane

Decision
The Tribunal sets aside the decision under review, namely a decision of a delegate of the respondent dated 20 November 2001 insofar as it relates to claims for solar keratosis, tinea and gout and substitutes the decision that:

1. solar keratosis of the back is war caused with effect from 8 May 2001; and

2. tinea and gout are not war caused.

The Tribunal otherwise affirms the decision under review, noting that the diagnosis of the condition claimed as adjustment disorder is amended to a diagnosis of dysthymic disorder.

..................[Sgd]............................
MJ Carstairs
Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – adjustment disorder, alcohol dependence, gout, depressive disorder, gastro-oesophageal disease, tinea and solar keratosis – operational service – diagnosis of psychiatric condition – no adjustment disorder – applicant suffering from dysthymic disorder - reasonable hypothesis raised connecting gastro-oesophageal disease with service – reasonable hypothesis raised connecting alcohol dependence with service but disproved beyond a reasonable doubt – no connection between gout and war service – hypothesis connecting depressive disorder with service is not reasonable – no hypothesis raised connecting tinea with service – concession that solar keratosis connected with war service
Veterans’ Entitlements Act 1986 ss 9, 120, 120A, 196B
Re Rhodes and Repatriation Commission [1999] AATA 72
Repatriation Commission v Hill [2002] FCAFC 192
Repatriation Commission v Deledio (1998) 83 FCR 82
Re Stonehouse and Repatriation Commission [2004] AATA 707
REASONS FOR DECISION

6 August 2004 Ms MJ Carstairs, Member
1.      This is an application by John Dunne (the applicant) for review of a decision made by the Veterans’ Review Board (the VRB) on 22 October 2002. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) made on 20 November 2001.
2.      The applicant was represented by Mr R Richards, an advocate with Advocacy for Veterans. The respondent was represented by its advocate Mr M Smith.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975, numbered T1–T6 (the “T documents”) as well as exhibits marked A1–A10 for the applicant and R1–R5 for the respondent.
BACKGROUND
4.      The applicant is aged sixty-one. He enlisted in the Royal Australian Navy (the Navy) at the age of sixteen and served from 3 July 1959 to 2 July 1971. Much of his service was at sea, in HMAS Quiberon, HMAS Melbourne and HMAS Sydney. The periods of relevant service for the Veterans’ Entitlements Act 1986 (the Act) are the applicant’s periods of service with the Far Eastern Strategic Reserve:
(a)28 September 1962 – 31 October 1962
(b)8 November 1962 – 1 December 1962
(c)6 December 1962 – 18 December 1962
(d)5 February 1963 – 16 February 1963

and periods of service…

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 Dunne and Repatriation Commission

Details

AGLC: Dunne and Repatriation Commission [2004] AATA 827
Case: [2004] AATA 827
Decision Date: 6 August 2004

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal was an appeal by the applicant against decisions of the Repatriation Commission regarding the applicant's eligibility for certain veterans’ benefits. The applicant, who had served in the Australian Defence Force, claimed benefits for a range of conditions including adjustment disorder, alcohol dependence, gout, depressive disorder, gastro-oesophageal disease, tinea, and solar keratosis. The Commission had varied its earlier decisions in respect of these claims and the applicant sought further review by the Tribunal.

The legal issues before the Tribunal were whether the applicant's conditions were connected to his war service and thus eligible for benefits under the Veterans’ Entitlements Act 1986. The applicant argued that all his conditions were connected to his service, while the Commission contended that only some of the conditions were connected. The Tribunal had to determine the connection, if any, between the applicant's conditions and his war service. This required consideration of medical evidence, the nature of the service, and the statutory provisions concerning war-caused conditions.

The Tribunal found that a reasonable hypothesis existed linking the applicant's gastro-oesophageal disease to his service, though it was not sufficient to establish a causal connection on the balance of probabilities. The Tribunal found that while there was a reasonable hypothesis connecting alcohol dependence to service, it was disproved beyond reasonable doubt. The Tribunal also found that there was no connection between gout and war service. The hypothesis connecting depressive disorder to service was deemed not reasonable. There was no hypothesis raised connecting tinea to service, and the Tribunal accepted that solar keratosis was connected to war service. The Tribunal concluded that the applicant suffered from dysthymic disorder rather than adjustment disorder. The Tribunal set aside the Commission's decision in part and affirmed it in part, substituting its own decision regarding the conditions of solar keratosis, tinea, and gout.

The Tribunal ordered that solar keratosis of the back was war caused with effect from 8 May 2001 and that tinea and gout were not war caused. The Tribunal affirmed the Commission's decision in all other respects, amending the diagnosis of the condition claimed as adjustment disorder to dysthymic disorder.

Orders

Orders of the court

The Tribunal sets aside the decision under review, namely a decision of a delegate of the respondent dated 20 November 2001 insofar as it relates to claims for solar keratosis, tinea and gout and substitutes the decision that:

1. solar keratosis of the back is war caused with effect from 8 May 2001; and

2. tinea and gout are not war caused.

The Tribunal otherwise affirms the decision under review, noting that the diagnosis of the condition claimed as adjustment disorder is amended to a diagnosis of dysthymic disorder.

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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