Farmer and Repatriation Commission - [2004] AATA 781

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 781
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1884

VETERANS' APPEALS DIVISION )

Re

John Farmer

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal
Mr RP Handley, Deputy President
Dr P Lynch, Member

Rear-Admiral AR Horton, Member

Date23 July 2004
PlaceSydney

Decision

The Tribunal varies the decision under review by determining that while the Applicant does not suffer from PTSD or Social Phobia, he does suffer from Alcohol Dependence and Malignant Neoplasm of the Colorectum. However, that Alcohol Dependence is not a war-caused injury or disease and the Respondent is not liable to pay a pension to the Applicant pursuant to s 13(1) of the Veterans’ Entitlement Act 1986.

..............................................
RP Handley
Deputy President

CATCHWORDS
VETERANS ENTITLEMENTS – disability pension – whether malignant neoplasm of the colon, alcohol dependence or alcohol abuse, and social phobia was as a result of operational service – necessity for Applicant to meet the relevant Statement of Principles – examination of the one incident upon which the Applicant relies during his operational service (being an incident on 9 May 1960) – examination of the ships’ logs of the HMAS Voyager and HMAS Melbourne as to the positions of the ships at the time of the alleged incident – examination of the Applicant’s alcohol use history – held that the Tribunal is not reasonably satisfied on the evidence that the Applicant could have experienced a severe stressor within the meaning of the Act – held that the Applicant does not suffer PTSD or Social Phobia but does suffer from Alcohol Dependence which was not caused by his naval service and therefore the Respondent is not liable to pay a pension to the Applicant pursuant to s 13(1) of the Veterans’ Entitlement Act 1986 – decision under review is varied.
Veterans Entitlement Act 1986 ss 120(1), 120(3), 120(4)
Statement of Principle No 58 of 2000 - Malignant Neoplasm of the Colorectum
Statement of Principle No 76 of 1998 – Alcohol Dependence or Alcohol Abuse
Benjamin v Repatriation Commission [2001] FCA 1879
Budworth v Repatriation Commission and Benjamin v Repatriation Commission (S13/2002 (21 June 2002))
Connors v Repatriation Commission [2000] FCA 783
Fuss v Repatriation Commission [2001] FCA 1529
Repatriation Commission v Budworth [2001] FCA 1421
Repatriation Commission v Deledio [1998] FCA 391
Stoddart v Repatriation Commission (2003) 197 ALR 283
Woodward v Repatriation Commission [2003] FCAFC 160
REASONS FOR DECISION

23 July 2004
Mr RP Handley, Deputy President
Dr P Lynch, Member

Rear-Admiral AR Horton, Member

Summary

1.      The Applicant, John Farmer, who is aged 65, served in the Royal Australian Navy from 1956 to 1962. During his operational service, he claimed to have experienced a number of stressful events while serving on HMAS Melbourne.   On 24 October 2000, he lodged a claim for disability pension and treatment for incapacity from bowel and rectum cancer and for alcohol dependence or alcohol abuse and post traumatic stress disorder (“PTSD”).
2.       On 14 February 2001, a delegate of…

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 Farmer and Repatriation Commission

Details

AGLC: Farmer and Repatriation Commission [2004] AATA 781
Case: [2004] AATA 781
Decision Date: 23 July 2004

CaseChat Overview and Summary

The case involves an application for a disability pension brought by the Applicant against the Repatriation Commission. The Applicant, a former serviceman, claims that his malignant neoplasm of the colon, alcohol dependence, and social phobia were caused by his operational service. The Federal Court of Australia was required to determine whether the Applicant’s conditions were war-related and, if so, whether the Commission was liable to pay a pension under the Veterans’ Entitlement Act 1986.

The court examined the Applicant’s reliance on a single incident during his service, which allegedly occurred on 9 May 1960. The logs of the HMAS Voyager and HMAS Melbourne were reviewed to ascertain the ships' positions at the time of the incident. The Applicant’s history of alcohol use was also scrutinised. The court concluded that the Tribunal was not reasonably satisfied that the Applicant experienced a severe stressor within the meaning of the Act. It found that while the Applicant did suffer from alcohol dependence and a malignant neoplasm of the colorectum, these conditions were not caused by his service. Therefore, the Commission was not liable to pay a pension under section 13(1) of the Act.

The Federal Court varied the decision under review, affirming that the Applicant did not suffer from post-traumatic stress disorder or social phobia. However, the Applicant did suffer from alcohol dependence and a malignant neoplasm of the colorectum. The court held that the alcohol dependence was not caused by the Applicant’s service, and thus the Commission was not liable to pay a pension. The Applicant’s claim for a disability pension was consequently dismissed.

Orders

Orders of the court

The Tribunal varies the decision under review by determining that while the Applicant does not suffer from PTSD or Social Phobia, he does suffer from Alcohol Dependence and Malignant Neoplasm of the Colorectum. However, that Alcohol Dependence is not a war-caused injury or disease and the Respondent is not liable to pay a pension to the Applicant pursuant to s 13(1) of the Veterans’ Entitlement Act 1986.

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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