DWYER and REPATRIATION COMMISSION - [2010] AATA 646

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 646
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2422

VETERANS' APPEALS DIVISION )

Re ROBERT KENNEDY DWYER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
Brigadier C Ermert (Retd), Member

Dr R Blakley, Member

Date27 August 2010
PlaceMelbourne

Decision

The Tribunal varies the decision under review to the extent that Mr Dwyer does not suffer from obsessive compulsive personality disorder. The Tribunal affirms the decision in all other respects.

(sgd) C Ermert
Member

VETERANS’ AFFAIRS – operational service in Butterworth, Malaysia, and Ubon, Thailand – whether psychiatric and other conditions war-caused - diagnoses of conditions - four stages of Deledio reasoning ‑ hypotheses connecting conditions with operational service ‑ Statements of Principles ‑ hypothesis does not fit Statements of Principles – decision varied that veteran does not suffer OCPD – decision affirmed in all other respects.
Veterans’ Entitlements Act 1986 ss 9, 120(1), 120(3), 120A, 120A(3), 196A, 196B(2), 196B(14)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
REASONS FOR DECISION

27 August 2010
Brigadier C Ermert, Member

Dr R Blakley, Member

1.      Mr Robert Kennedy Dwyer, the veteran, was born in 1931 and served in the Royal Australian Air Force (RAAF) from 1948 to 1973. During the period from May 1964 to July 1966 Mr Dwyer served in Butterworth, Malaya, and Ubon, Thailand. This service has been accepted as comprising operational service in accordance with the provisions of the Veterans’ Entitlement Act 1986 (the Act).
2.      Mr Dwyer contends that during his operational service he encountered a number of incidents which caused him considerable stress. He was tasked with the recovery of an engine from a crashed Australian Sabre aircraft, but was unable to do so, attracting criticism from his peers. On one occasion it was suspected that insurgents sabotaged a homing beacon on the airfield. There was a period of three to four days on which an amber security alert was declared and troops were required to carry weapons, lay sandbags and prepare for evacuation. Mr Dwyer’s living quarters were only 300-400 yards from the airstrip and planes took off and landed every 15 minutes over a four week period. Also, Mr Dwyer was concerned by reports that insurgents were in the vicinity of Penang Island near the married quarters in which his wife and family were living.
3.      On 8 August 2008 Mr Dwyer submitted a claim to the Repatriation Commission for a pension on the basis that his heart problems and anxiety problems were war caused. On 2 October 2008 the Repatriation Commission refused his claim for war causation of ischaemic heart disease (IHD), hypertension and obsessive compulsive disorder. My Dwyer applied for a review of the decision. On 20 April 2009 the Veterans’ Review Board (VRB) varied the psychiatric diagnosis to obsessive compulsive personality…

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 DWYER and REPATRIATION COMMISSION

Details

AGLC: DWYER and REPATRIATION COMMISSION [2010] AATA 646
Case: [2010] AATA 646
Decision Date: 27 August 2010

CaseChat Overview and Summary

The case of Dwyer and Repatriation Commission involved Mr Dwyer, who sought to have his claim for a psychiatric injury recognised by the Repatriation Commission. The dispute centred around whether Mr Dwyer had a psychiatric injury and, if so, whether it was related to his service in the Australian Defence Force. The case was heard by the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether Mr Dwyer had a psychiatric injury and, if so, whether it was related to his service in the Defence Force. The Tribunal also had to determine if Mr Dwyer suffered from obsessive compulsive personality disorder. The Repatriation Commission argued that Mr Dwyer did not suffer from a psychiatric injury and that any personality disorder he had was not related to his service.

In its decision, the Tribunal found that Mr Dwyer did suffer from a psychiatric injury, but it was not related to his service in the Defence Force. The Tribunal found that Mr Dwyer did not suffer from obsessive compulsive personality disorder but rather had a personality disorder that was not service-related. The Tribunal held that the Repatriation Commission's decision to deny Mr Dwyer's claim for a psychiatric injury was incorrect, and it varied the decision to the extent that Mr Dwyer does not suffer from obsessive compulsive personality disorder. The Tribunal affirmed the decision in all other respects.

Orders

Orders of the court

The Tribunal varies the decision under review to the extent that Mr Dwyer does not suffer from obsessive compulsive personality disorder. The Tribunal affirms the decision in all other respects.

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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VETERANS' APPEALS DIVISION		)
Re		ROBERT KENNEDY DWYER