Fenner and Repatriation Commission - [2006] AATA 766

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 766
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2005/7

VETERANS' APPEALS DIVISION )

Re JUERGEN KLAUS FENNER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Ms M J Carstairs, Member
Date8 September 2006
PlaceBrisbane (heard in Darwin)

Decision
The decision under review is affirmed.

................Signed..............
Deputy President

CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – disability pension – claim that post traumatic stress disorder and alcohol abuse were war-caused – satisfied to reasonable satisfaction that applicant does not suffer post traumatic stress disorder – consideration of Statement of Principles – scare charges – full steam ahead incident – satisfied beyond reasonable doubt that events relied upon were not severe stressors – satisfied beyond reasonable doubt that alcohol abuse was not war-caused - Tribunal affirms the decision under review
Veterans’ Entitlement Act 1986 ss 120(4), 196B(2)
Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622
Mines v Repatriation Commission [2004] FCA 1331; (2004) 86 ALD 62
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Constable [2006] FCAFC 102
Fox v Percy (2003) 214 CLR 118
REASONS FOR DECISION

8 September 2006 Deputy President P E Hack SC
Ms M J Carstairs, Member

Introduction

1.Mr Juergen (Joe) Fenner enlisted in the Royal Australian Navy on 13 October 1965 at the age of 15½ years. He was discharged on 11 November 1969.
2.Between April 1967 and June 1968 Mr Fenner made seven trips to South Vietnam as a stoker on HMAS Sydney. Mr Fenner says that as a consequence of this service he developed post traumatic stress disorder and alcohol abuse.
3.The issues that we must decide are whether Mr Fenner suffers from post traumatic stress disorder and/or alcohol abuse and, if he does suffer from either or both of these conditions, whether they are war-caused.
4.Mr Fenner first made his claim for a disability pension under the Veterans’ Entitlement Act 1986 in April 2001. The claim was refused by the Repatriation Commission in August 2001. That decision was affirmed by the Veterans’ Review Board in September 2002 and by this Tribunal (differently constituted) in April 2004.[1] Mr Fenner succeeded in an appeal from that decision to the Federal Court[2] and, on 2 February 2005, that Court set aside the Tribunal’s decision and remitted the matter for rehearing.
[1] See [2004] AATA 368
[2] See [2005] FCA 27; (2005) 218 ALR 122

The Proper Diagnosis
5.The first issue is that of the proper diagnosis. In considering this issue we are to apply the standard of proof prescribed by s 120(4) of the Act, that is, to our reasonable satisfaction.[3] There is controversy, to which we shall return, regarding the diagnosis of post traumatic stress disorder and alcohol abuse/dependence. But each of the psychiatrists that have seen Mr Fenner – Dr Parker, Dr Kenny and Professor Goldney – are agreed that Mr Fenner suffers from the condition known as antisocial…

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 Fenner and Repatriation Commission

Details

AGLC: Fenner and Repatriation Commission [2006] AATA 766
Case: [2006] AATA 766
Decision Date: 8 September 2006

CaseChat Overview and Summary

The applicant, Fenner, sought a disability pension on the grounds that his post-traumatic stress disorder (PTSD) and alcohol abuse were war-caused. The Repatriation Commission reviewed and dismissed the application. Fenner appealed to the Administrative Appeals Tribunal (AAT), which affirmed the Commission's decision. Fenner subsequently appealed to the Federal Court of Australia.

The primary legal issue was whether Fenner's PTSD and alcohol abuse were caused by his service in the armed forces. The court had to consider the evidence in light of the relevant legislative provisions and case law. It needed to decide if the Commission's findings were reasonable and supported by evidence. The court also had to assess if the events Fenner relied on constituted severe stressors, and whether his alcohol abuse was war-caused.

The court considered the evidence and found that Fenner did not suffer from PTSD. It relied on the absence of symptoms that would satisfy the applicable Statement of Principles. The court held that the Commission's decision was reasonable and supported by evidence. It also found that the events Fenner relied on, including the 'full steam ahead' incident, did not constitute severe stressors. The court was satisfied beyond reasonable doubt that Fenner's alcohol abuse was not war-caused.

The Federal Court affirmed the decision of the AAT, upholding the Commission's dismissal of Fenner's application for a disability pension.

Orders

Orders of the court

The decision under review is affirmed.

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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8 September 2006	Deputy President P E Hack SC Ms M J Carstairs, Member
Introduction