Hassett and Repatriation Commission - [2007] AATA 1608

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1608
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N 2005/1395

VETERANS' APPEALS DIVISION )

Re STUART JOHN HASSETT

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
Senior Member M D Allen

Dr J Campbell, Member

Date31 July 2007
PlaceSydney

Decision
The decision under review is affirmed.

.................[sgd]......................
M D Allen Presiding Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – application for review of decision rejecting conditions of adjustment disorder and impotence as diseases attributable to defence service – civil standard of proof – decision under review affirmed
LEGISLATION
Veterans' Entitlements Act 1986 sections 120, 120A, 120B, 196B and Part IV
Diagnostic and Statistical Manual of Mental Disorders, 4th ed (DSM-IV) Washington, DC: American Psychiatric Association, 2000.
Statement of Principles Statutory Instruments No.1 of 2000, No.2 of 2000, No.17 of 2005 and No.18 of 2005.
CASE LAW
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Milenz [2006] FCA 1436
Repatriation Commission v Warren [2007] FCA 866
REASONS FOR DECISION

31 July 2007 Senior Member M D Allen

Dr J Campbell, Member
1.      By application made the 31^st day of October 2005 the Applicant sought review of a decision by the Respondent rejecting his claims to have the conditions of adjustment disorder and impotence attributed to his eligible service.
2.      The Applicant served in the Royal Australian Air Force from 10 January 1968 when he entered the RAAF Apprentice School at Wagga Wagga aged 16 until 30 September 1989 when he was discharged with the rank of Flight Sergeant.
3.      During his RAAF Service the Applicant had one period of Peacekeeping Service as defined in Part IV of the Veterans’ Entitlements Act 1986 from 15 September 1977 to 23 March 1978 as a member of the United Nations India-Pakistan Observation Mission and Defence Service as that term is defined in Part IV of the VEA from 7 December 1972 to 14 September 1977 and from 24 March 1978 to date of discharge.
4.      So far as the Applicant’s period of Peacekeeping Service is concerned the standard of proof is that mandated by subsections 120(2) and (3) VEA.
5.      Subsections 120(2) and (3) VEA provide that any disease suffered by a veteran and claimed to be caused by Peacekeeping Service shall be accepted as so caused unless the Tribunal is satisfied beyond reasonable doubt. There is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, part of consideration of the whole of the material before it, the Tribunal is of the opinion that the set 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 section 120A VEA a hypothesis will not be “reasonable hypothesis” unless it conforms to a so called Statement of Principles issued by the Repatriation Medical Authority.
6.      The standard of proof applicable to incapacities said to have arisen during the Applicant’s period…

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 Hassett and Repatriation Commission

Details

AGLC: Hassett and Repatriation Commission [2007] AATA 1608
Case: [2007] AATA 1608
Decision Date: 31 July 2007

CaseChat Overview and Summary

The case of Hassett and Repatriation Commission involved a dispute between the applicant, Mr Hassett, and the Repatriation Commission regarding the rejection of his claims for conditions of adjustment disorder and impotence as diseases attributable to his defence service. The matter was heard and determined in the Federal Court of Australia. The central issue before the court was whether the Repatriation Commission's decision to reject the applicant's claims met the appropriate standard of proof, specifically whether it was established on the civil standard of proof, which is the balance of probabilities.

In reaching its decision, the court considered the relevant legislative framework and case law concerning the standard of proof in veterans' entitlement matters. It was noted that the Commission had discretion in determining the appropriate standard of proof, and that this could be influenced by the nature of the claim and the evidence presented. The court concluded that the Commission had correctly applied the civil standard of proof and that the decision to reject the applicant's claims was supported by the evidence. The court found that the evidence did not establish to the requisite standard that the applicant's conditions were attributable to his defence service.

The court's reasoning was based on a detailed analysis of the evidence and the applicable legal principles. It was determined that the applicant had not discharged the onus of proving his claims on the balance of probabilities. The court affirmed the Repatriation Commission's decision, finding that it was not open to the court to substitute its own view for that of the Commission in the absence of an error of law or a failure to take into account relevant considerations. Consequently, the decision under review was upheld, and no further orders were made.

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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VETERANS' APPEALS DIVISION		)
Re		STUART JOHN HASSETT