Hausler and Repatriation Commission - [2011] AATA 684

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/3210

Veterans' Appeals Division )
Re: Russell Hausler
Applicant

And: Repatriation Commission
Respondent
CORRIGENDUM
TRIBUNAL:             Dr K S Levy RFD, Senior Member
DATE:                      6 October 2011
PLACE:                   Brisbane

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

Replace the words “with effect from” in paragraphs (2)(a) and (b) with the words “with an effective date of clinical onset of”.

Insert new paragraph (2)(c): “c. In accordance with s 177(2)(a) of the Veterans’ Entitlements Act 1986, the date of effect for payment of pension for posttraumatic stress disorder and alcohol dependence is 6 February 2008.”

...................................................................
Senior Member

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 684
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3210

VETERANS' APPEALS DIVISION )

Re RUSSELL HAUSLER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr K S Levy RFD, Senior Member
Date30 September 2011
PlaceBrisbane

Decision
The Tribunal:

1.    affirms the decision under review with respect to the incidents on 12 February 1983 and 11 June 1983; and

2.    sets aside the decision under review with respect to the fire on HMAS Vampire on 8 February 1984 and substitutes the decision that:

a.   the applicant’s posttraumatic stress disorder is defence-caused with effect from 8 February 1984; and

b.   the applicant’s alcohol dependence, related to posttraumatic stress disorder, is defence-caused with effect from 1 July 2000.

...................[Sgd].........................
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – Pensions, benefits and entitlements – Disability pension – Defence service with Royal Australian Navy – Diagnoses of posttraumatic stress disorder and alcohol dependence – Statement of Principles for first two incidents not satisfied – Statement of Principles for third incident satisfied – Posttraumatic stress disorder and alcohol dependence defence-caused – Decision under review affirmed in part and set aside in part
Veterans’ Entitlements Act 1986 (Cth) s 70, s 120, 120B
Boys v Repatriation Commission [2011] AATA 389
Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281
Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Milenz (2006) 93 ALD 107; [2006] FCA 1436
The Commonwealth v Wright [1956] 96 CLR 536
Woodward v Repatriation Commission [2006] AATA 1099
REASONS FOR DECISION

30 September 2011 Dr K S Levy RFD, Senior Member

INTRODUCTION
1. The applicant, Russell Hausler, served in the Royal Australian Navy (RAN) from 8 February 1982 to 7 February 1988. Mr Hausler undertook defence service during the whole of that period and was not posted to any position on operational service for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (the Act). He has applied for recognition of two medical conditions: posttraumatic stress disorder (PTSD) and alcohol abuse (AA)/alcohol dependence (AD). Those applications were rejected by the Repatriation Commission on 27 June 2008. He sought further review by the Veterans’ Review…

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 Hausler and Repatriation Commission

Details

AGLC: Hausler and Repatriation Commission [2011] AATA 684
Case: [2011] AATA 684
Decision Date: 30 September 2011

CaseChat Overview and Summary

The applicant in this case sought a review of a decision by the Repatriation Commission regarding his eligibility for a disability pension. The applicant served in the Royal Australian Navy and was diagnosed with posttraumatic stress disorder (PTSD) and alcohol dependence. The dispute centered on whether these conditions were caused by his service, specifically in relation to three incidents: two in 1983 and one in 1984. The Administrative Appeals Tribunal was tasked with determining whether the applicant's conditions were defence-caused and thus eligible for pension benefits.

The Tribunal had to decide if the applicant's PTSD and alcohol dependence were caused by his service in the Navy. This involved examining the Statement of Principles concerning the incidents and whether they were satisfied. For the first two incidents, the Tribunal found that the Statement of Principles was not met, and thus those incidents did not qualify for pension benefits. However, for the fire on HMAS Vampire on 8 February 1984, the Tribunal found that the Statement of Principles was satisfied, and the applicant's PTSD and alcohol dependence were indeed defence-caused.

The Tribunal's decision hinged on the specific criteria outlined in the Veterans’ Entitlements Act 1986 and relevant case law. The Tribunal noted that for the first two incidents, the applicant did not meet the necessary criteria to establish a causal link between his service and the conditions. However, for the incident on 8 February 1984, the Tribunal found that the evidence presented did establish the required causal link. This was based on the severity of the incident and its impact on the applicant's mental health. The Tribunal also considered the applicant's subsequent alcohol dependence as related to his PTSD, which was found to be defence-caused.

The Tribunal affirmed the decision regarding the first two incidents but set aside the decision concerning the fire on HMAS Vampire. It ruled that the applicant's PTSD was defence-caused from 8 February 1984 and his alcohol dependence, related to PTSD, was defence-caused from 1 July 2000. This decision meant that the applicant was eligible for pension benefits for these conditions.

Orders

Orders of the court

The Tribunal:

1. affirms the decision under review with respect to the incidents on 12 February 1983 and 11 June 1983; and

2. sets aside the decision under review with respect to the fire on HMAS Vampire on 8 February 1984 and substitutes the decision that:

a. the applicant’s posttraumatic stress disorder is defence-caused with effect from 8 February 1984; and

b. the applicant’s alcohol dependence, related to posttraumatic stress disorder, is defence-caused with effect from 1 July 2000.

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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