Gray and Repatriation Commission - [2004] AATA 61

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 61
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/1004

VETERANS' APPEALS DIVISION
)

Re PETER GRAY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr IR Way, Member
Date23 January 2004
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
...................(Sgd)......................
IR Way
Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – entitlement – depressive disorder – whether connection can be established between depressive disorder and war service – no reasonable hypothesis established – decision affirmed
Veterans’ Entitlements Act 1986, ss 9, 70, 120, 120A, 120B, 196A, 196B(2)
Repatriation Commission v Smith (1987) 7 AAR 17
Stoddart v Repatriation Commission [2003] FCA 334
Repatriation Commission v Stoddart [2003] FCAFC 300
Cooke v Repatriation Commission (1998) 160 ALR 17
Repatriation Commission v Deledio (1998) 83 FCA 82
REASONS FOR DECISION

23 January 2004 Mr IR Way, Member

1. This is an application by Peter Gray for review of a decision of the Repatriation Commission dated 21 May 2001, affirmed by the Veterans’ Review Board (“VRB”) on 7 August 2002, which rejected the applicant’s claim for depressive disorder pursuant to section 9 of the Veterans’ Entitlements Act 1986 (“the Act”) and section 70 of the Act.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T26) and other documentary evidence as follows:
Exhibit A1     Report of Dr TM Grotowski dated 24 June 2003
Exhibit A2     Alcohol questionnaire dated 23 July 2003
Exhibit A3     Statement of Peter Forbes Gray dated 18 February 2003
Exhibit A4Statement of applicant listing traumatic experiences dated 13 January 2003
Exhibit A5Letter from applicant/statement – reply to Historical Research dated 28 August 2003
Exhibit A6Statement of applicant dated 18 August 2003
Exhibit R1Writeway Research Report dated 15 August 2003 – JT Owens
Exhibit R2Applicant’s annual evaluation reports 1973 – 1975

3. The applicant was represented by Mr R Clutterbuck of Counsel and the respondent by Mr B Williams, Departmental Advocate. The applicant and the applicant’s wife, Joan Gray, gave oral evidence and Dr T Grotowski, Psychiatrist, gave evidence by telephone.
4. The applicant was born on 29 January 1934 and served in the Royal Australian Air Force (“RAAF”) from 29 January 1950 to 10 December 1965 and from 24 January 1967 to 1 July 1977. His service included operational service in Singapore from 3 January 1955 to 11 May 1955 and from 15 June 1955 to 21 October 1956. His service from 7 December 1972 until his discharge in 1977 constitutes defence service pursuant to section 70 of the Act.
5. The applicant’s accepted service-related disabilities are:
§Psoriasis
§Solar skin damage with malignant change
§Bilateral sensori-neural hearing loss

6. His non-service-related disability is depressive disorder, the subject of this review.
7. During his service in Singapore, the applicant served with 1 Squadron RAAF (Lincoln Bombers) at Royal Air Force Base Tengah, where his mustering was motor transport fitter, a trades stream in which he remained until…

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 Gray and Repatriation Commission

Details

AGLC: Gray and Repatriation Commission [2004] AATA 61
Case: [2004] AATA 61
Decision Date: 23 January 2004

CaseChat Overview and Summary

The applicant, Gray, applied for a war service pension under the Veterans’ Entitlements Act 1986. Gray claimed that his depressive disorder was caused by his service in the Australian Defence Force. The Repatriation Commission refused to pay the pension, leading Gray to appeal to the Administrative Appeals Tribunal. The Tribunal was required to decide whether Gray’s depressive disorder was connected to his war service, as required by the Act.

The primary legal issue was whether there was a sufficient causal link between Gray’s depressive disorder and his war service. The Tribunal considered the relevant statutory provisions and previous case law, including the principles established in Repatriation Commission v Smith and Cooke v Repatriation Commission. It was necessary to determine whether there was a reasonable hypothesis that the depressive disorder arose out of or in the course of Gray's war service.

The Tribunal reviewed the evidence and found that Gray had not established a reasonable hypothesis that his depressive disorder was connected to his war service. The Tribunal held that Gray’s claims were not supported by the medical evidence and the relevant case law. The Tribunal affirmed the decision of the Commission, finding that there was insufficient evidence to establish the required causal link. The Tribunal concluded that the Commission was correct in its decision to deny Gray’s application for a war service pension.

The Tribunal affirmed the decision of the Repatriation Commission. Gray’s application for review was dismissed, and the Commission’s decision was upheld.

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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