Dyce and Repatriation Commission - [2010] AATA 956

Administrative Appeals Tribunal
INTERLOCUTORY DECISION AND REASONS FOR INTERLOCUTORY DECISION [2010] AATA 956
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4975

VETERANS' APPEALS DIVISION )

Re GREGORY DYCE

Applicant

And

REPATRIATION COMMISSION

Respondent

INTERLOCUTORY DECISION

Tribunal Mr John Handley, Senior Member
Dr K Breen, Member
Date30 November 2010
PlaceMelbourne

Decision For reasons given orally at the hearing, the Tribunal does not have jurisdiction to determine whether post traumatic stress disorder is war‑caused.
(sgd) John Handley
Senior Member

PRACTICE AND PROCEDURE – Veterans’ entitlements ‑ applicant claimed alcohol abuse ‑ Post Traumatic Stress Disorder (PTSD) not claimed ‑ PTSD not reviewed by respondent or VRB – jurisdiction to determine whether applicant suffers from war-caused PTSD.
Veterans’ Entitlements Act 1986
Repatriation Commission v Budworth (2001) 116 FCR 200
Benjamin v Repatriation Commission (2001) 70 ALD 622
McKerlie v Repatriation Commission [2010] FCA 1127
Mines v Repatriation Commission (2004) 86 ALD 62
Owen v Repatriation Commission (1995) 59 FCR 93
REASONS FOR INTERLOCUTORY DECISION

30 November 2010 Mr John Handley, Senior Member
Dr K Breen, Member

1.      This application proceeded to hearing on 25 October 2010. The representatives for both parties made submissions concerning a preliminary issue which emerged from an amended Statement of Facts Contentions lodged by the respondent on 19 October 2010.
2.      The issue concerns the jurisdiction of the Tribunal to determine whether post traumatic stress disorder (PTSD) is war-caused.
3.      The respondent contended that PTSD had never been claimed by the applicant and a decision had not been made by the respondent or by the Veterans’ Review Board (VRB). Therefore, review by the Administrative Appeals Tribunal (the Tribunal) was confined only to the conditions which the applicant did claim and over which decisions were made being diabetes mellitus, alcohol abuse and cervical spondylosis.
4.      The applicant contended that the Tribunal does have a power to determine whether a connection exists between service and PTSD because of its inquisitorial role and its obligation to make the correct and preferable decision having regard to the material before it.
5.      At the conclusion of the oral submissions, we adjourned and delivered oral reasons for our decision. We decided that the Tribunal does not have jurisdiction to determine whether PTSD is war‑caused.
6.      The oral reasons for our decision are recorded in the transcript at pages 38‑42 inclusive.
7.      On 3 November 2010, the District Registrar received a letter from the solicitors for the applicant, requesting written reasons for the decision we delivered on 25 October.
8.      The reasons which follow will encapsulate the reasons that we delivered previously but in a form of greater clarity.
9.      The applicant applied to review a decision made by the VRB on 6 October 2009. The VRB affirmed a decision previously made by the respondent on 19 December 2008 to reject claims for diabetes mellitus, cervical spondylosis and alcohol abuse. The respondent assessed pension at 30 per cent of the general rate which was also affirmed by the VRB.
10.     Having heard the oral submissions…

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 Dyce and Repatriation Commission

Details

AGLC: Dyce and Repatriation Commission [2010] AATA 956
Case: [2010] AATA 956
Decision Date: 30 November 2010

CaseChat Overview and Summary

In the case of Dyce and Repatriation Commission, the applicant, Dyce, sought to have his war service pension reviewed to account for an alleged alcohol abuse problem. The applicant did not claim that he suffered from post-traumatic stress disorder (PTSD). The Repatriation Commission was required to determine whether the Tribunal had the authority to consider the applicant's PTSD claim, which had not been previously raised, in the context of reviewing his pension for alcohol abuse.

The primary legal issue the court needed to address was whether the Tribunal had the jurisdiction to review and determine the applicant's PTSD claim, given that it was not raised by the applicant or reviewed by the Commission or the Veterans' Review Board. The court was required to consider the scope of its powers in reviewing war service pensions and the circumstances under which a claim for PTSD could be considered.

The court found that the Tribunal did not have the jurisdiction to determine whether the applicant's PTSD was war-caused, as it had not been raised by the applicant and was not reviewed by the Commission or the Veterans' Review Board. The court emphasised the importance of procedural fairness and the need for claims to be properly raised and considered by the appropriate authorities before the Tribunal could exercise its jurisdiction. Consequently, the Tribunal concluded that it could not proceed to determine the applicant's PTSD claim.

In summary, the Tribunal held that it did not have the jurisdiction to determine whether the applicant suffered from war-caused PTSD, as the claim had not been properly raised or reviewed. The Tribunal's decision was based on the principles of procedural fairness and the proper exercise of its jurisdiction in reviewing war service pensions.

Orders

Orders of the court

For reasons given orally at the hearing, the Tribunal does not have jurisdiction to determine whether post traumatic stress disorder is war‑caused.

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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