Hodges and Repatriation Commission - [2004] AATA 1348

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1348
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/188 and VETERANS' APPEALS DIVISION ) S2004/147

Re RONALD CHARLES HODGES

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President D G Jarvis
Date16 December 2004
PlaceAdelaide

Decision The Tribunal sets aside the decision under review, and in place of that decision, determines that Mr Hodges’ conditions of depressive disorder, ischaemic heart disease and alcoholic liver damage resulting from alcohol dependence are war-caused.
D G Jarvis
(Signed)
Deputy President

CATCHWORDS
VETERANS' ENTITLEMENTS – operational service – whether claimed conditions are war-caused – application of Deledio – depressive disorder – ischaemic heart disease – alcoholic liver damage resulting from alcohol dependence – applicant on HMAS Sydney in confined area below waterline during air-raid alert – meaning of “event” – decision under review set aside.
Veterans' Entitlements Act 1986 (Cth) ss 9, 120(1), 120(3), 120A(3), 120A(4) and 196
Repatriation Commission v Deledio (1998) 83 FCR 82
Lees v Repatriation Commission (2002) 125 FCR 331
Re Binding and Repatriation Commission (AAT 12886, 15 May 1998)
Repatriation Commission v Binding [1998] FCA 974
Repatriation Commission v Law (1980) 31 ALR 140
Re Hillier and Repatriation Commission [2004] AATA 897
Repatriation Commission v Stoddart (2003) 77 ALD 67
REASONS FOR DECISION

16 December 2004
  Deputy President D G Jarvis

1.      Ronald Charles Hodges was engaged in operational service in Vietnam on board HMAS Sydney from 27 May 1965 until 26 June 1965. On 13 March 2002, he lodged a claim for pension in respect of emotional disorder, and this was subsequently diagnosed as depressive disorder. His claim was rejected by the Repatriation Commission, and he subsequently sought a review from the Veterans’ Review Board (“VRB”). The VRB confirmed the rejection of his claim. Mr Hodges has applied to this Tribunal to review the decision of the Commission as affirmed by the VRB.
2.      On 13 August 2003, Mr Hodges lodged a further claim for pension in respect of heart disease and liver problems. These conditions were subsequently diagnosed by the Commission as ischaemic heart disease and alcoholic liver damage. The Commission also rejected the claim for these conditions, and Mr Hodges applied to the VRB for a review of the Commission’s determination. The VRB affirmed the Commission’s decision. Mr Hodges has also applied to this Tribunal for review of the rejection of his claim in respect of these further conditions.
3. The two applications to this Tribunal for review were heard together. The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) in respect of both applications were admitted in evidence, and the parties also tendered a number of other documents. I will refer to those documents as necessary in the reasons for this decision. I have carefully considered all of the evidence before me, including the documentary material.
Issues Before the Tribunal
4.      The issues before the Tribunal are whether Mr Hodges’ claimed conditions are war-caused for the purposes of…

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 Hodges and Repatriation Commission

Details

AGLC: Hodges and Repatriation Commission [2004] AATA 1348
Case: [2004] AATA 1348
Decision Date: 16 December 2004

CaseChat Overview and Summary

The case before the court involved Mr. Hodges and the Repatriation Commission. Mr. Hodges sought to have his conditions of depressive disorder, ischaemic heart disease, and alcoholic liver damage resulting from alcohol dependence recognised as war-caused under the Veterans' Entitlements Act 1986. This appeal was brought to the court following a decision by the Administrative Appeals Tribunal which had not upheld Mr. Hodges’ claims.

The central legal issues before the court were whether Mr. Hodges' claimed conditions were war-caused, and if so, whether they were connected to a relevant event. The court had to consider the statutory definition of "war-caused" and whether Mr. Hodges' service met the criteria outlined in the Veterans' Entitlements Act 1986. The court also needed to interpret the term "event" as it applied to Mr. Hodges' experience on HMAS Sydney during an air-raid alert.

The court examined the relevant statutory provisions and case law, including the Deledio decision, to determine if Mr. Hodges' service constituted an event that was a contributing factor to his claimed conditions. The court found that the conditions were indeed war-caused, as they were significantly attributable to Mr. Hodges' service. It concluded that the Tribunal had not properly applied the statutory criteria and therefore set aside the decision under review. The court found that the conditions were war-caused and substituted its own decision in place of the Tribunal's.

The court's final order was to set aside the decision of the Tribunal and to determine that Mr. Hodges' conditions of depressive disorder, ischaemic heart disease, and alcoholic liver damage resulting from alcohol dependence were war-caused. This decision recognises the impact of Mr. Hodges' service on his health and provides him with the benefits and support to which he is entitled under the Veterans' Entitlements Act 1986.

Orders

Orders of the court

The Tribunal sets aside the decision under review, and in place of that decision, determines that Mr Hodges’ conditions of depressive disorder, ischaemic heart disease and alcoholic liver damage resulting from alcohol dependence are war-caused.

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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