Fanna and Repatriation Commission - [2007] AATA 1665

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1665
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q200600191

VETERANS’ APPEALS DIVISION )

Re FRANKLIN DOUGLAS FANNA

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal M J Carstairs, Senior Member
Date13 August 2007
PlaceBrisbane (heard in Townsville)

Decision

The Tribunal sets aside the decision under review; substitutes the decision that alcohol abuse and anxiety disorder are war caused; and remits to the respondent the assessment of the rate of pension payable for these medical conditions. The Tribunal allows 7 days for the parties to make submissions on the date of effect of this decision.

.................[Sgd]............
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS - service in Australian Army – disability service pension – post traumatic stress disorder – alcohol dependence/abuse – generalised anxiety disorder – unarmed guard duty – decision set aside.
Veterans’ Entitlements Act 1986 (Cth) ss 7, 9, 120(1), 120A, 176(4), 196B
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Cornelius [2002] FCA 750
Fenner v Repatriation Commission [2007] FCA 406
REASONS FOR DECISION

13 August 2007
  M J Carstairs, Senior Member

1.      In this application Franklin Douglas Fanna seeks review of a decision rejecting his claim for post traumatic stress disorder and alcohol abuse. He claims that these conditions are related to his service in the Australian Army, in particular the six months he served in Thailand, between December 1965 and May 1966, when he was on operational service.
ISSUES
2.       The issues before me are:
(a)the correct diagnoses of Mr Fanna’s psychiatric conditions; and
(b)whether these conditions are war-caused.

The conditions will be war caused if they resulted from an occurrence during service in Thailand, or if they arose out of or were attributable to that service.[1]
[1] As provided for in s 9 of the Veterans’ Entitlements Act 1986.
BACKGROUND
3. Mr Fanna enlisted in the Australian Army at the age of 17. He trained as a field engineer and was posted (via Malaya) in December 1965 to Ban Kok Talat, 66 miles north of Ubon, Thailand, as a driver/plant operator with 2 Field Troop Royal Australian Engineers. In Thailand the Australian troops joined with troops from the British Commonwealth Far Eastern Strategic Reserve in “Operation Crown,” engaged in re-building an airport runway as part of a SEATO defence commitment.
4. Mr Fanna had enlisted in the Australian Army for a period of 6 years but served for only 3 years. The service records revealed little about why his period was truncated. It appears there were disciplinary issues. The official record reads that he was discharged at his own request, but Mr Fanna said that he was offered a choice between resigning or dishonourable discharge. The only documented incident in the service records was a $10 fine for drunkenness that Mr Fanna incurred in February 1966. A warning was entered in his records in March 1966 that his discharge would be recommended unless…

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 Fanna and Repatriation Commission

Details

AGLC: Fanna and Repatriation Commission [2007] AATA 1665
Case: [2007] AATA 1665
Decision Date: 13 August 2007

CaseChat Overview and Summary

In the matter of Fanna and the Repatriation Commission, the Federal Circuit and Family Court of Australia was tasked with reviewing a decision regarding a disability service pension under the Veterans’ Entitlements Act 1986 (Cth). The appellant, Mr. Fanna, sought to have his post-traumatic stress disorder, alcohol dependence, and generalised anxiety disorder recognised as war-caused conditions to enhance his pension entitlements. The Commission had previously determined that these conditions were not war-caused, a decision which Mr. Fanna sought to challenge.

The central legal issues revolved around the interpretation of the Veterans’ Entitlements Act and the application of relevant case law. The court needed to determine whether Mr. Fanna's conditions were war-caused under the statutory framework and if the Commission's decision was legally sound. This involved an examination of the evidence presented and the applicable legal standards as elucidated in cases such as Benjamin v Repatriation Commission, Repatriation Commission v Deledio, and Fenner v Repatriation Commission.

The court found that the Repatriation Commission had erred in its application of the law. It determined that Mr. Fanna's conditions were indeed war-caused, as supported by the evidence. The court was influenced by the precedent in Benjamin v Repatriation Commission, which emphasised the need for a causal link between the service and the medical conditions. The decision was set aside, and the matter was remitted to the Commission for reassessment of the pension rate. The court allowed seven days for the parties to submit on the effective date of the decision.

The orders made by the court were clear and precise. The decision of the Repatriation Commission was set aside, and it was substituted with a determination that Mr. Fanna's alcohol abuse and anxiety disorder were war-caused. The case was remitted back to the Commission to reassess and determine the appropriate rate of pension payable for these conditions. The court provided a timeframe of seven days for the parties to make submissions on the effective date of this decision.

Orders

Orders of the court

The Tribunal sets aside the decision under review; substitutes the decision that alcohol abuse and anxiety disorder are war caused; and remits to the respondent the assessment of the rate of pension payable for these medical conditions. The Tribunal allows 7 days for the parties to make submissions on the date of effect 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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VETERANS’ APPEALS DIVISION		)
Re		FRANKLIN DOUGLAS FANNA