Hogno and Repatriation Commission

Case [2010] AATA 306


Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL                 )

)No: 2008/3808

Veterans' Appeals Division  )

Re: Dennis Hogno
Applicant

And: Repatriation Commission
Respondent

Order to amend written decision

TRIBUNAL:             Senior Member Jill Toohey

DATE:                      23 July 2010

PLACE:                   Sydney

1.On 29 April 2010, the Tribunal published a decision and written reasons in this proceeding.

2.The Tribunal is satisfied that that there is an obvious error in the text of the decision and the written statement of reasons and directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision from:

The Tribunal affirms the decision under review.

so that it now reads:

The Tribunal varies the decision under review by deciding that the veteran's anxiety disorder is war-caused and otherwise affirms the decision under review.

3.Paragraph 69 of the written statement of reasons is also amended to reflect the above wording. 

.......................[sgd]............................

J Toohey

Senior Member

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 306

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3808

Veterans' APPEALS DIVISION )
Re Dennis Hogno

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal Senior Member Jill Toohey
Dr Maxwell Thorpe, Member

Date29 April 2010

PlaceSydney

Decision

The Tribunal affirms the decision under review.

..................[sgd]................................

Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENT - special rate pension – alcohol dependence – anxiety disorder – cardiomyopathy – whether veteran suffered from alcohol dependence – whether alcohol dependence and anxiety war-caused – Tribunal satisfied that reasonable hypothesis raised in relation to anxiety disorder – Tribunal satisfied that anxiety disorder war-caused - reasonable hypothesis raised in connection with alcohol dependence but Tribunal satisfied beyond reasonable doubt that condition was not war-caused - not satisfied that veteran suffered from cardiomyopathy -  not satisfied that veteran ceased employment for reasons related to war-caused condition alone – decision under review affirmed

Veterans Entitlements Act 1986 – s.120, s.24

Benjamin v Repatriation Commission (2001) 70 ALD 622

Cavell v Repatriation Commission (1988) 9AAR 534

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hendy (2002) 76 ALD 47

REASONS FOR DECISION

19 April 2010 Senior Member Jill Toohey
Dr Maxwell Thorpe, Member        

Background

1.      Dennis Hogno served in the Australian Army from May 1958, when he was sixteen years old, until May 1966.  He served at Butterworth in Malaya from 14 January to 20 October 1965, which period is operational service for the purposes of the Veterans Entitlements Act 1986 (the Act).

2.      Mr Hogno receives a disability pension at 100 per cent of the general rate for accepted conditions of atrial fibrillation, sensorineural hearing loss with tinnitus, ischaemic heart disease, impotence, tinea and chronic bronchitis.

3.      Mr Hogno claims that events which occurred while he was in Malaya led to an increase in his drinking and to an anxiety disorder.  He claims a special rate pension on the ground that war-caused alcohol dependence and anxiety disorder render him incapable of remunerative work.  He claims also to have war-caused cardiomyopathy. 

4.…

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Hogno and Repatriation Commission [2010] AATA 306
Case
[2010] AATA 306
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CaseChat Overview and Summary

In the case of Hogno and Repatriation Commission, the dispute centred on the eligibility of the veteran for a special rate pension under the Veterans’ Entitlements Act 1986. The central issues revolved around the veteran's claims regarding alcohol dependence, anxiety disorder, and cardiomyopathy, and whether these conditions were war-caused and thus warranted the pension. The matter was heard in the Federal Court of Australia.

The court was required to determine whether the veteran had suffered from alcohol dependence, and if this condition was war-caused. Additionally, the court needed to assess whether the veteran's anxiety disorder and cardiomyopathy were war-caused and if these conditions warranted the special rate pension. The court also had to consider whether the veteran ceased employment due to the war-caused conditions alone.

In its decision, the court found that the Tribunal was satisfied that a reasonable hypothesis had been raised in relation to the anxiety disorder, and that this condition was war-caused. However, the court determined that although a reasonable hypothesis was raised in connection with the alcohol dependence, it was satisfied beyond reasonable doubt that this condition was not war-caused. The Tribunal was also not satisfied that the veteran suffered from cardiomyopathy, nor was it satisfied that the veteran ceased employment for reasons related to the war-caused conditions alone. Consequently, the court affirmed the decision under review.

The final orders of the court were to affirm the decision of the Tribunal, meaning that the veteran's claims for the special rate pension were not 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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