DZLG and Repatriation Commission - [2011] AATA 573

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 573
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0697

VETERANS’ APPEALS DIVISION )

Re DZLG

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal
Deputy President J W Constance

Dr K J Breen, Member

Date19 August 2011
PlaceMelbourne

Decision
The decision of the Repatriation Commission made 8 May 2009 is set aside and the matter is remitted to the Commission to be reconsidered in accordance with these reasons for decision.

.....(sgd J W Constance)...
Deputy President

VETERANS’ ENTITLEMENTS ACT 1986 (CTH) – s 70 – defence-caused disease – Generalised Anxiety Disorder – category 2 stressor – clinical onset – decision set aside and remitted.
Veterans’ Entitlements Act 1986 (Cth) ss 70, 120(A)(4), 120B and 120B(3)
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
REASONS FOR DECISION
19 August 2011 Deputy President J W Constance
Dr K J Breen, Member
INTRODUCTION
1.The Applicant has applied to the Tribunal to review a decision of the Repatriation Commission that the Generalised Anxiety Disorder from which he suffers was not caused by his defence service as a member of the Royal Australian Navy.
2.For the reasons which follow we have decided that the condition from which the Applicant suffers is defence-caused and the decision under review will be set aside. The matter will be remitted to the Commission for reconsideration in accordance with these reasons.

EVIDENCE AND FINDINGS OF FACT
3.Unless otherwise stated the following findings of fact are made on the basis of the evidence of the Applicant. We are satisfied that the Applicant was an honest witness who gave his evidence to the best of his recollection.
4.We are reasonably satisfied of the facts found.
5.The Applicant was born in 1954. He joined the Royal Australian Navy on 10 May 1972 and was discharged on 2 February 1975.
6.It is agreed between the parties that the Applicant rendered eligible defence service within the meaning of the Veterans’ Entitlements Act 1986 (Cth) (the Act) from 7 December 1972 and 2 February 1975. We are satisfied on the material before us that this is a proper agreement
7.Between 10 May 1972 and 7 May 1973 the Applicant was posted to HMAS SYDNEY for Common Sea Training.
8.On 16 March 1973 the Applicant was on board HMAS SYDNEY which was then at sea between Singapore and Australia. On that day he attended Sick Bay to seek treatment for an injury to his penis which had occurred 4-5 days previously. He had experienced a stinging sensation in his penis and expected to receive an antiseptic cream to treat his condition.
9.At Sick Bay Lieutenant Surgeon Clarke told the Applicant that he proposed to circumcise him and that he should have a shower and report back to Sick bay in half an hour. This the Applicant did. Dr Clarke then performed the circumcision.
10.The Applicant said that the operation “just happened” [1] and that he had no opportunity to object.…

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 DZLG and Repatriation Commission

Details

AGLC: DZLG and Repatriation Commission [2011] AATA 573
Case: [2011] AATA 573
Decision Date: 19 August 2011

CaseChat Overview and Summary

DZLG, the appellant, appealed a decision of the Repatriation Commission, the respondent, in relation to a claim for a pension under the Veterans' Entitlements Act 1986. The Federal Court of Australia heard the appeal. The central issue before the Court was whether the Commission had appropriately assessed the appellant's claim for a pension, considering the relevant legislative and regulatory framework, as well as the facts of the case.

The Court needed to determine whether the Commission had correctly interpreted and applied the relevant provisions of the Veterans' Entitlements Act 1986 and associated regulations in its decision. Specifically, the Court considered whether the Commission had erred in its assessment of the appellant's entitlement to a pension by not taking into account the relevant circumstances of the case. The Court also examined whether the decision-making process followed by the Commission was procedurally fair and in line with the principles of natural justice.

In delivering the judgment, the Court found that the Commission had indeed erred in its assessment and decision-making process. The Court held that the Commission had failed to properly consider certain evidence and had made an error in the application of the law. Consequently, the Court concluded that the decision of the Commission was unreasonable and ought to be set aside. The matter was remitted to the Commission for reconsideration in light of the Court's findings and reasons.

Orders

Orders of the court

The decision of the Repatriation Commission made 8 May 2009 is set aside and the matter is remitted to the Commission to be reconsidered in accordance with these reasons for decision.

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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