Guy and Repatriation Commission - [2003] AATA 867

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 867
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/417

VETERANS' APPEALS DIVISION )

Re COLIN MacKENZIE GUY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member K L Beddoe
Dr J B Morley, Member
Major-General J N Stein, Member
Date5 September 2003
PlaceBrisbane

Decision
The Tribunal affirms the decisions under review.

(Sgd) KL Beddoe
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – disability pension – alcohol abuse or dependence – psychoactive substance (alcohol) abuse – diagnosis - whether applicant experienced a stressful event or suffered from a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence
Veterans’ Entitlements Act 1986 ss 5, 6
Re Guy and Repatriation Commission [2001] AATA 685
Guy v Repatriation Commission [2002] FCA 525
REASONS FOR DECISION

5 September 2003
Senior Member K L Beddoe
Dr J B Morley, Member

Major-General J N Stein, Member

1.      The respondent decided, inter alia, to refuse the applicant’s disability pension claim in respect of alcohol dependence or alcohol abuse. The Veterans’ Review Board varied the decision to include the diagnosis of psychoactive substance (alcohol) abuse but affirmed the decision as varied, that is the claim was refused. The applicant also made a claim (which was refused) in relation to gastro-oesophageal reflux disease. The respondent concedes this matter if the applicant is successful in relation to psychoactive substance (alcohol) abuse.
2.      The applicant sought review in this Tribunal. The matter was heard on 22 June 2001 by a Full Tribunal (Senior Member Muller, Dr Kennedy and Mr Way, Members) (Re Guy and Repatriation Commission [2001] AATA 685). We will describe this Tribunal as “the first Tribunal”. That Tribunal’s decision was the subject of an appeal to the Federal Court (Guy v Repatriation Commission [2002] FCA 525). The Federal Court:
(a)set aside the decision of the Tribunal;
(b)remitted the matter back to a differently constituted Tribunal; and
(c)made an order for costs, if any.

3.      At the hearing the applicant conducted his own case and Miss Ford appeared for the respondent. The following documents were tendered and put into evidence before the Tribunal.
§Exhibit A      Report of Dr Holm, dated 13 April 2003
§Exhibit B      Statement of Mr Daley, dated 15 February 2003
§Exhibit C      Statement of Mr Clancy, dated 16 September 2003
§Exhibit D      Statement of Mr Howard
§Exhibit 1      Copy of Appeal Book
§Exhibit 2      Copy of Transcript, dated 22 June 2001
§Exhibit 3      Report and attachments of Commodore Mulcare, 4 September 2002
§Exhibit 4      Medical Examination Record – Australian Police
§Exhibit 5      Report of Senior Constable Miles 4183, dated 3 June 1957
§Exhibit 6      Report of Queensland Police Inspectors’ Office, dated June 1957
§Exhibit 7      Report of Queensland Police Inspectors’ Office, dated 1 August 1958
§Exhibit 8      Report by Government Medical Officer, dated 5 February 1975
§Exhibit 9      Report by G H Furseman, dated 16 March 1979
§Exhibit 10     Letter from Commissioner of Police to applicant, 3…

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 Guy and Repatriation Commission

Details

AGLC: Guy and Repatriation Commission [2003] AATA 867
Case: [2003] AATA 867
Decision Date: 5 September 2003

CaseChat Overview and Summary

Guy, an Australian veteran, appealed against decisions by the Repatriation Commission to deny him a disability pension on the grounds that his incapacity was attributable to alcohol abuse or dependence, rather than a psychiatric condition or a stressful event. The matter was initially determined by the Administrative Appeals Tribunal, and subsequently appealed to the Federal Court of Australia. The legal issues in this case centred around the interpretation of sections 5 and 6 of the Veterans' Entitlements Act 1986, and whether Guy's incapacity was attributable to a psychiatric condition or stressful event that occurred prior to the onset of alcohol abuse or dependence.

The court examined the evidence and found that Guy did not experience a stressful event or suffer from a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence. The court concluded that the Tribunal's findings on this matter were open to it, and that there was no error in law or procedure that would warrant the Court setting them aside. The court also held that there was no basis for interfering with the Tribunal's findings of fact, as they were open to it, and there was no error in law or procedure that would justify overturning them.

Based on its findings, the court upheld the Tribunal's decision to deny Guy a disability pension. The court found that the Tribunal's decision was not flawed in any way, and that there was no reason to interfere with it. As a result, the Tribunal's decisions under review were affirmed, and Guy's appeal was dismissed. The court's decision highlights the importance of providing clear and accurate evidence to support claims for disability pensions under the Veterans' Entitlements Act 1986, and the need for applicants to demonstrate that their incapacity is attributable to a psychiatric condition or stressful event that occurred prior to the onset of alcohol abuse or dependence.

Orders

Orders of the court

The Tribunal affirms the decisions 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		COLIN MacKENZIE GUY