Gallagher and Repatriation Commission - [2009] AATA 294

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 294
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2651

GENERAL ADMINISTRATIVE DIVISION )

Re PHILIP NEILL GALLAGHER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen
Dr I Alexander, Member
Date29 April 2009
PlaceSydney

Decision The decision under review is AFFIRMED
....................[sgd]..........................
M D Allen
Presiding Member

CATCHWORDS
VETERANS ENTITLEMENTS: Claim for Post Traumatic Stress Disorder - satisfied on balance of probabilities that Appplicant did not suffer from Post Traumatic Stress Disorder - decision under review affirmed.
LEGISLATION
Veteran’s Entitlements Act 1986: Ss 120(1), (3), (4), (6); s 120A
CASE LAW
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Gosewinkle (2000) 59 ALD 690
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Smith (1986-7) 15 FCR 327
REASONS FOR DECISION

Senior Member M D Allen
Dr I Alexander, Member

1.      By application made the 22^nd day of June 2007, the Applicant sought review of a decision by the Veterans Review Board (“VRB”) that affirmed a prior determination of the Respondent that denied his claim for pension for a Post Traumatic Stress Disorder (“PTSD”) on the basis that the Applicant did not suffer from the said disease.
2.      As the relevant incidences giving rise to the Applicant’s claim were alleged to have occurred whilst the Applicant was on operational service, as that term is defined in section 6C of the Veteran’s Entitlements Act 1986 (“VEA”), the standard of proof in this matter is that mandated by Ss 120(1) and (3) VEA.
3.      Subsections 120(1) and (3) VEA provide that any disease suffered by a veteran and claimed to be war-caused shall be accepted as being so caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after a consideration of all of the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the disease suffered by the Applicant with the circumstances of the service rendered by him. Pursuant to s 120A VEA, a hypothesis will not be a “reasonable hypothesis” unless it conforms to a so called Statement of Principles (“SoP”) issued by the Repatriation Medical Authority.
4.      Subsection 120(6) VEA provides that neither party to this review bears any onus of proof.
5.      The manner in which the Tribunal must approach its task where an SoP exists was set forth by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The so called ‘Deledio Principles’ are now so well known as not to require recapitulation here.
6.      In this matter, two considerations were before the Tribunal. The first, namely, whether any illness suffered by the Applicant was war-caused is, as stated above, to be determined pursuant to Ss 120(1) and (3) of the VEA. The primary question here, however is, from…

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 Gallagher and Repatriation Commission

Details

AGLC: Gallagher and Repatriation Commission [2009] AATA 294
Case: [2009] AATA 294
Decision Date: 29 April 2009

CaseChat Overview and Summary

The matter before the court involved Gallagher, the applicant, and the Repatriation Commission, the respondent. The dispute centred around Gallagher's claim for post-traumatic stress disorder (PTSD) benefits. The case was heard and decided in the Federal Court of Australia.

The central legal issues before the court were whether Gallagher had established, on the balance of probabilities, that he suffered from PTSD due to his service in the Australian Defence Force. The court had to consider the evidence presented by both parties and determine if the Commission's decision to deny the claim was correct. This required the court to assess the credibility and weight of the evidence, particularly medical evidence, and whether the Commission had acted within its powers in making its decision.

In its decision, the court found that the evidence did not support the conclusion that Gallagher suffered from PTSD. The court found that the Commission's decision to deny the claim was supported by the evidence and did not contain any errors of law. The court was satisfied that the Commission had considered all relevant material and had acted in accordance with the applicable legislative framework. Consequently, the court affirmed the decision under review, upholding the Commission's determination that Gallagher was not entitled to the claimed benefits.

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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GENERAL ADMINISTRATIVE DIVISION		)
Re		PHILIP NEILL GALLAGHER