Gawley and Repatriation Commission - [2009] AATA 284

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 284
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1450

VETERANS' APPEALS DIVISION )

Re RONALD ALEXANDER GAWLEY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr B H Pascoe, Senior Member
Date27 April 2009
PlaceMelbourne

Decision
The Tribunal affirms the decision under review.

(sgd) B H Pascoe
Senior Member

VETERANS’ – war-caused conditions – anxiety disorder – alcohol abuse – post traumatic stress disorder – whether experienced stressors – factors in relevant Statements of Principles not met – date of clinical onset
Veterans’ Entitlements Act 1986
Repatriation Commission v Deledio (1998) 49 ALD 193
REASONS FOR DECISION

27 April 2009 Mr B H Pascoe, Senior Member

1.      This is an application to review a decision of the respondent dated 29 June 2007 that the veteran’s claimed conditions of anxiety disorder, alcohol abuse and post traumatic stress disorder (PTSD) were not war caused. This decision was affirmed by the Veterans’ Review Board (VRB) on 28 February 2008.
2.      At the hearing the applicant, Mr R A Gawley was represented by Ms J. Bornstein of counsel and the respondent by Mr K Rudge, an advocate with the Department of Veterans’ Affairs. Evidence was given by Mr Gawley.
3.      On 8 December 2006, Mr Gawley advised of his intention to make a formal claim for anxiety disorder and alcohol abuse and dependence. The formal claim was lodged on 14 February 2007. The claim for anxiety disorder stated that this was Due to my being posted to SVN. I was always in fear of my life and afraid that I would never see my wife and recently born daughter again. The claim for alcohol abuse and dependence was said to be due to the horror, fear and helplessness during my period in SVN. Drove me to self medication, to try and forget.
4.      Mr Gawley was born on 22 October 1946. He served in the Royal Australian Army (army) from 7 February 1968 to 6 February 1970 and had operational service in Vietnam from 4January 1969 to 23 December 1969. Mr Gawley had commenced work as a printer prior to conscription which was deferred until he completed his trade training. After three months basic training, he had corp training in ordinances before being transferred to Broadmeadows on store duties. After further training at Kanungra he was transferred to Nui Dat in Vietnam as a storeman attached to 106 Field Workshops. His duties were primarily within the base at Nui Dat.
5.      In his evidence at the hearing, Mr Gawley referred to five stressful events which occurred during his service in Vietnam. The first of these was requirement to be on perimeter guard duty in a bunker at night on about two occasions per month. On two or three occasions he heard gunfire from nearby and he was in fear of his life. The second was soon after July 1969, mortars were fired into the area at night. He awoke to the noise and was…

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 Gawley and Repatriation Commission

Details

AGLC: Gawley and Repatriation Commission [2009] AATA 284
Case: [2009] AATA 284
Decision Date: 27 April 2009

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal was an appeal by Gawley against a decision of the Repatriation Commission, which had refused to accept liability for his medical condition. The dispute arose under the Veterans' Entitlements Act 1986, specifically regarding the classification and compensation for Gawley's medical condition. Gawley contended that the Commission had erred in law by not recognising his medical condition as service-related, while the Commission maintained its decision based on the evidence provided.

The primary legal issue before the Tribunal was whether the Commission had correctly applied the relevant provisions of the Veterans' Entitlements Act in assessing Gawley's claim. This involved examining the statutory criteria for determining the service-related nature of a medical condition, the interpretation of those criteria, and the application of those criteria to the facts of the case. The Tribunal needed to determine if the Commission's decision was supported by substantial evidence and whether there had been any error in the application of the law.

In its decision, the Tribunal held that the Commission had not erred in law and had properly applied the statutory criteria to the facts. The Tribunal found that the evidence presented did not meet the threshold for establishing a service-related condition under the Act. The Tribunal concluded that the Commission's decision was rational and supported by the evidence, and therefore, the appeal was dismissed. The Tribunal affirmed the decision of the Repatriation Commission, maintaining that it was not persuaded that any error of law had occurred.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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		RONALD ALEXANDER GAWLEY