Falzun and Repatriation Commission - [2007] AATA 1743

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1743
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200300467

VETERANS' APPEALS DIVISION )

Re PAUL FALZUN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President S D Hotop
Brigadier A G Warner, Member

Dr D Weerasooriya, Member
Date7 September 2007
PlacePerth

Decision
The Tribunal sets aside the decision of the Veterans’ Review Board dated 20 August 2003 and, in substitution therefor, decides that:

· the applicant suffers from post traumatic stress disorder, alcohol dependence, and functional dyspepsia;

· none of those conditions is a war-caused disease, within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”);

· each of those conditions is a defence-caused disease, within the meaning of s 70(5) of the VE Act, with effect from 28 September 2001.

The matter is remitted to the respondent for assessment of the rate of disability pension payable to the applicant on the basis of this decision.

...........[Sgd S D Hotop]...........
Deputy President

CATCHWORDS
VETERANS' AFFAIRS - veterans' entitlements - disability pension - applicant served in Royal Australian Navy from 1969 to 1981 - applicant rendered operational service in Vietnam from 22 February to 1 March 1971 - applicant rendered eligible defence service from 7 December 1972 to 6 April 1981 - applicant suffers from post traumatic stress disorder (PTSD), alcohol dependence, and functional dyspepsia - Statements of Principles - reasonable hypothesis that applicant's conditions connected with operational service - Tribunal satisfied beyond reasonable doubt that applicant's conditions not connected with operational service - applicant's conditions not war-caused - Tribunal reasonably satisfied that applicant's conditions connected with defence service - applicant's conditions are defence-caused - decision under review set aside
Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 6C, s 7(1), s 9(1), s 68(1), s 70(5), s 120, s 120A and s 120B
Statement of Principles Concerning Post Traumatic Stress Disorder (Instrument No 3 of 1999, as amended by Instrument No 54 of 1999)
Statement of Principles concerning Post Traumatic Stress Disorder (Instrument No 4 of 1999, as amended by Instrument No 55 of 1999)
Statement of Principles concerning Alcohol Dependence or Alcohol Abuse (Instrument No 76 of 1998)
Statement of Principles concerning Alcohol Dependence or Alcohol Abuse (Instrument No 77 of 1998)
Bull v Repatriation Commission (2001) 188 ALR 756
Byrne v Repatriation Commission [2007] FCAFC 126
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Administrative Appeals Tribunal [2007] FCAFC 111
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Smith (1987) 15 FCR 327
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION

7 September 2007
  Deputy President S D Hotop

  Brigadier A G Warner, Member

  Dr D Weerasooriya, Member

Introduction
1.       Paul Falzun (“the applicant”) served in the Royal Australian Navy (“RAN”) from 1969 to 1981. He claims that he suffers from post traumatic stress disorder (“PTSD”), alcohol dependence, and functional dyspepsia, and that each of those conditions is either “war-caused” or “defence-caused”,…

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 Falzun and Repatriation Commission

Details

AGLC: Falzun and Repatriation Commission [2007] AATA 1743
Case: [2007] AATA 1743
Decision Date: 7 September 2007

CaseChat Overview and Summary

The matter before the Court was an appeal against a decision of the Veterans’ Review Board, which had reviewed an application for a disability pension by the applicant, who had served in the Royal Australian Navy between 1969 and 1981 and had rendered operational service in Vietnam from 22 February to 1 March 1971. The applicant suffered from post-traumatic stress disorder (PTSD), alcohol dependence, and functional dyspepsia, and the Tribunal was required to determine whether these conditions were connected with the applicant's operational service or defence service, as these connections would determine whether the conditions were war-caused or defence-caused, respectively.

The legal issues before the Court were whether the Tribunal had correctly interpreted the relevant provisions of the Veterans’ Entitlements Act 1986 (Cth) and the Statements of Principles concerning PTSD and alcohol dependence or abuse. The Court had to consider whether the Tribunal's decision that the applicant's conditions were not war-caused but were defence-caused was correct and whether the Tribunal had properly applied the relevant principles in making its decision.

The Court found that the Tribunal had correctly interpreted the relevant provisions of the Act and the Statements of Principles. The Court held that the Tribunal had properly applied the principles in determining that the applicant's conditions were defence-caused, even though they were not war-caused. The Court found that the Tribunal's decision that the applicant's conditions were not war-caused was open to it on the evidence before it, and that the Tribunal had correctly concluded that the applicant's conditions were defence-caused. The Court noted that the applicant's PTSD and alcohol dependence were closely connected with his operational service, but that the Tribunal was entitled to conclude that they were not war-caused because they did not meet the criteria set out in the relevant Statement of Principles. The Court also found that the Tribunal's decision that the applicant's functional dyspepsia was defence-caused was open to it on the evidence before it.

The Court set aside the decision of the Veterans’ Review Board and, in substitution therefor, decided that the applicant's conditions were defence-caused, with effect from 28 September 2001. The matter was remitted to the respondent for assessment of the rate of disability pension payable to the applicant on the basis of this decision.

Orders

Orders of the court

The Tribunal sets aside the decision of the Veterans’ Review Board dated 20 August 2003 and, in substitution therefor, decides that:

· the applicant suffers from post traumatic stress disorder, alcohol dependence, and functional dyspepsia;

· none of those conditions is a war-caused disease, within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”);

· each of those conditions is a defence-caused disease, within the meaning of s 70(5) of the VE Act, with effect from 28 September 2001.

The matter is remitted to the respondent for assessment of the rate of disability pension payable to the applicant on the basis of this 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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Tribunal	Deputy President S D Hotop Brigadier A G Warner, Member
Dr D Weerasooriya, Member