Freemantle and Repatriation Commission - [2003] AATA 1076

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 1076
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2001/326

VETERANS' APPEALS DIVISION )

Re KEITH ROBERT FREEMANTLE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member
Date28 October 2003
PlaceCanberra

Decision The decision under review is set aside and the tribunal substitutes its own decision that the applicant qualifies for a Disability Pension with effect from 6 May 1999 at a rate to be determined by the Repatriation Commission.
...............................................
Senior Member

CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension – post-traumatic stress disorder – depressive disorder – alcohol abuse – alcohol dependence – hypertension - impotence – whether applicant qualifies for Disability Pension
Veterans’ Entitlements Act 1986 ss 20(1), 68(1)(“defence service”), 70(1)(b), (d), 119, 120(1), (3), (4), 196B.
Statement of Principles 3/99 as amended by 54/99 concerning post-traumatic stress disorder
Statement of Principles 59/98 concerning depressive disorder
Statement of Principles 76/98 concerning alcohol dependence or alcohol abuse
Statement of Principles 35/2003 concerning hypertension
Statement of Principles 97/96 as amended by SoP 16/2002 concerning impotence
Statement of Principles 98/96 concerning impotence
Benjamin v Repatriation Commission (2001) 34 AAR 270
Bull v Repatriation Commission (2001) 66 ALD 271
Cornelius v Repatriation Commission [2002] FCA 750
Deledio, Repatriation Commission v (1998) 49 ALD 193
Gorton, Repatriation Commission v (2001) 33 AAR 370
Lees v Repatriation Commission [2002] FCAFC 398
Slattery v Repatriation Commission, Re (1998) 52 ALD 90
Smith, Repatriation Commission v (1987) 74 ALR 537
Williams, Repatriation Commission v [2001] FCA 1195
Woodward v Repatriation Commission [2003] FCAFC 160
REASONS FOR DECISION

28 October 2003 Mr M J Sassella, Senior Member

APPLICATION
1. Keith Robert Freemantle (“the applicant”, “the veteran”), born 5 July 1945 (TD1/T1), applied to the Administrative Appeals Tribunal (“the tribunal”) for review of a decision of the Repatriation Commission (“the respondent”) dated 27 October 1999 (TD1/T10) rejecting the applicant’s claim for a Disability Pension in respect of conditions of hypertension, impotence and stress, having re-defined the claimed disabilities as hypertension, impotence, post-traumatic stress disorder and major depressive disorder. The Veterans’ Review Board (“the VRB”) affirmed the primary decision on 6 June 2001 (TD1/T15). The applicant is not in receipt of a Disability Pension at all.
HEARING
2. The tribunal convened a hearing in this matter in Canberra on 31 October 2002. Mr Paul Crabb, a solicitor, represented Mr Freemantle. Mr Jim Marsh of the Department of Veterans’ Affairs (“DVA”) represented the Repatriation Commission. The hearing did not conclude on that day and the representatives elected to provide written final submissions to finalise the proceeding. The applicant’s submissions were received by the tribunal on 3 February 2003. The respondent provided its submissions on 4 April 2003 and the applicant advised on the same day that it would be providing no response to the respondent. The tribunal heard oral evidence from the veteran, Dr B White (psychiatrist), Dr R Haik (psychiatrist) and Retired Captain H A Josephs (researcher). The tribunal had access to the following documentary evidence:

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 Freemantle and Repatriation Commission

Details

AGLC: Freemantle and Repatriation Commission [2003] AATA 1076
Case: [2003] AATA 1076
Decision Date: 28 October 2003

CaseChat Overview and Summary

Freemantle sought a review of a decision by the Repatriation Commission that he did not qualify for a disability pension under the Veterans’ Entitlements Act 1986. The dispute hinged on whether Freemantle’s various medical conditions, including post-traumatic stress disorder, depressive disorder, alcohol abuse, alcohol dependence, hypertension, and impotence, were attributable to his service in the defence force and whether they warranted a disability pension. The matter was heard in the Federal Court of Australia.

The primary legal issues the court had to resolve were whether Freemantle’s conditions were indeed related to his defence service, and if so, whether they met the threshold for a disability pension under the Act. The court examined the Statements of Principles relevant to each condition and assessed whether the medical evidence supported a causal link between Freemantle's conditions and his service. Additionally, the court considered whether Freemantle’s conditions were severe enough to meet the statutory criteria for a disability pension.

The Federal Court found that Freemantle’s conditions were sufficiently linked to his service to qualify for a disability pension. The evidence showed a direct causal relationship between his service and the onset of his conditions. The court was persuaded by the medical reports and Statements of Principles, which indicated that Freemantle’s conditions were severe and persistent enough to meet the statutory requirements. The court held that the tribunal had erred in its decision and substituted its own decision in favour of Freemantle.

The court set aside the original decision of the Repatriation Commission and ruled that Freemantle qualified for a Disability Pension with effect from 6 May 1999, with the rate to be determined by the Repatriation Commission.

Orders

Orders of the court

The decision under review is set aside and the tribunal substitutes its own decision that the applicant qualifies for a Disability Pension with effect from 6 May 1999 at a rate to be determined by the Repatriation Commission.

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		KEITH ROBERT FREEMANTLE