Fisher and Repatriation Commission

[2003] AATA 828

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 828

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No S2001/470

VETERANS' APPEALS  DIVISION		)
Re		GARY LEE FISHER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)

Date11 August 2003

PlaceAdelaide

Decision The decision under review is affirmed.

[The Hon C R Wright QC]

Deputy President

CATCHWORDS

Veterans' Affairs - disability support pension - whether applicant suffered from war-caused post-traumatic stress disorder - whether applicant experienced relevant stressors as defined in SoPs - whether there was a reasonable hypothesis within s120(3) of the VE Act connecting the injury with the applicant's service.

Veterans’ Entitlements Act 1986 – s120(1) and (3), 120A(3)

Statement of Principle No 3 of 1999

Ferriday v Repatriation Commission (1996) 69 FCR 521

Repatriation Commission v Gorton (2001) FCA 1194

Stoddart v Repatriation Commission [2003] FCA 334

Bushell v Repatriation Commission (1992) 175 CLR 408

Repatriation Commission v Cooke (1998) 160 ALR 17

REASONS FOR DECISION

11 August 2003 The Hon C R Wright QC., (Deputy President)  

Background

1.       The applicant is a 50-year-old unemployed painter currently living in South Australia with his de facto wife.   He was born on 29 May 1953.

2.       The applicant served in the Royal Australian Navy from 8 January 1969 until his discharge on grounds of temperamental unsuitability on 11 June 1970.

3.       The applicant had operational service on board HMAS Sydney from 16 February 1970 to 7 March 1970.   At that time he was 16 years of age.   He was absent from Australia for a total period of 18 days.

4.       On 20 March 2000 the applicant lodged a claim with the respondent for entitlements under the provisions of the Veterans’ Entitlements Act 1986 (“the Act”), claiming that he suffered post-traumatic stress disorder (“PTSD”) in consequence of events which occurred on board HMAS Sydney while at anchor in Vung Tau Harbour for a period of about 4 hours, 40 minutes on 27 February 1970.

5.       On 21 March 2000 the Repatriation Commission refused the claim on the basis that the diagnosis of post-traumatic stress disorder could not be established and gave notice of its determination that same day.

6.       On 23 May 2000 the applicant lodged an application to the Veterans’ Review Board seeking a review of the Repatriation Commission’s determination in respect of PTSD.

7.       On 7 December 2001 the Veterans’ Review Board affirmed the decision of the Repatriation Commission in respect of PTSD and the applicant was advised of this decision in a letter dated 13 December 2001.

8.       On 19 December 2001, the applicant lodged with the Administrative Appeals Tribunal an application seeking a review of the Repatriation Commission’s original decision.

Issues

9. In this case all time limits under the Act have been observed and the earliest date from which benefits may run, if this application is successful, is 20 December 1999, a date 3 months prior to the lodgement of the original claim.

10. The Tribunal has jurisdiction under…