Gibbs and Repatriation Commission - [2005] AATA 516

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 516
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2003/892

GENERAL ADMINISTRATIVE DIVISION )

Re ROBERT OWEN GIBBS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr. John Handley, Senior Member
Date3 June 2005
PlaceMelbourne

Decision The decision under review is set aside and in substitution IT IS DECIDED the applicant suffers from war-caused Post-Traumatic Stress Disorder and Alcohol Dependence and Abuse. The application is remitted to the respondent for assessment of pension in accordance with these reasons.
(Sgd) John Handley
Senior Member

VETERANS’ ENTITLEMENTS – service in Malaya in 1956 and 1957 – applicant fired upon in an ambush near Port Sweetenham and exposed to civil unrest at Penang – incidents not reported in Record of Proceedings – witnesses supported the applicant’s evidence of civil unrest in Penang and also being ambushed – differences in opinions of doctors of diagnosis – decision set aside
Veterans’ Entitlements Act 1986 (Cth) s120(1), s120(3) and s120A
Repatriation Commission v Deledio (1998) 49 ALD 193
REASONS FOR DECISION

3 June 2005 Mr John Handley, Senior Member

1.       The applicant applies to review a decision made by the Veterans’ Review Board (“VRB”) on 9 May 2003. The VRB then reviewed a decision made by the Repatriation Commission (“respondent”) on 18 July 2000 which refused a claim then made for acceptance of the conditions depressive disorder and alcohol dependence or alcohol abuse.
2.       The VRB decided to vary the decision of the respondent by “removing” the diagnosis of alcohol dependence or alcohol abuse and found another diagnosis of post-traumatic stress disorder (“PSTD”).
3.       The VRB concluded that the decision under review as varied in relation to PSTD and depressive disorder should be affirmed. The VRB findings, at paragraph 29 of its reasons indicate that the word “removing” was referrable to its finding that the applicant did not suffer from alcohol dependence or abuse.
4.       At the hearing of the application, Mr Gibbs was represented by Mr Larkin and the respondent was represented by Mr Purcell, both of counsel.
5.       The T‑documents comprised 476 pages and the exhibits exceeded 500 in number. There was extensive reference to these documents throughout the hearing together with a number of medical reports. All of these documents will be referred to in these reasons.
6.       Mr Gibbs was born on 19 April 1937 and he is presently 68 years of age. He was engaged in operational service with the Royal Australian Navy (“the Navy”) and relied principally on three events in service in support of his claim.
7.       Mr Larkin submitted at the outset that there would be a significant issue emerging as to diagnosis. He submitted that all of the psychiatric witnesses agreed that the applicant had a psychiatric disorder of some type but there was diverging opinion as to diagnosis. The divergence in opinion ranged between either PTSD, major depressive disorder, dysthymic disorder or depressive disorder.
8.       It was submitted that in the event that there was a finding…

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 Gibbs and Repatriation Commission

Details

AGLC: Gibbs and Repatriation Commission [2005] AATA 516
Case: [2005] AATA 516
Decision Date: 3 June 2005

CaseChat Overview and Summary

The matter before the court involved the applicant, who was seeking a review of a decision made by the Repatriation Commission concerning their eligibility for war pension benefits. The applicant, who had served in the armed forces, claimed that they suffered from Post-Traumatic Stress Disorder (PTSD) and alcohol dependence and abuse, which they asserted were caused by their military service. The Repatriation Commission had previously determined that the applicant was not entitled to war pension benefits, prompting the applicant to seek judicial review of this decision.

The primary legal issue that the court had to address was whether the applicant was entitled to war pension benefits for the conditions of PTSD and alcohol dependence and abuse. This required the court to consider the definition of "war-caused" conditions under the relevant legislation, and to assess whether the applicant's conditions met this definition. The court also had to consider the evidence presented by the applicant and the Repatriation Commission, and to determine whether the Commission had made any errors in its assessment of the applicant's claims.

In its decision, the court found that the applicant did indeed suffer from war-caused PTSD and alcohol dependence and abuse. The court held that the Repatriation Commission had erred in its assessment of the applicant's claims, and had failed to properly consider the evidence that was presented. The court also found that the applicant's conditions were directly related to their military service, and therefore met the definition of "war-caused" conditions under the legislation. As a result, the court set aside the decision of the Repatriation Commission and substituted its own decision, finding that the applicant was entitled to war pension benefits for their conditions. The matter was remitted to the Repatriation Commission for reassessment of the applicant's pension entitlements in accordance with the court's decision.

Orders

Orders of the court

The decision under review is set aside and in substitution IT IS DECIDED the applicant suffers from war-caused Post-Traumatic Stress Disorder and Alcohol Dependence and Abuse. The application is remitted to the respondent for assessment of pension in accordance with these reasons.

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		ROBERT OWEN GIBBS