Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION
[2011] AATA 514
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2006/1354
VETERANS’ APPEALS DIVISION ) 2006/1355 Re Brian Karl Hunter Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President
Air Vice-Marshal (Dr) T K Austin AM, MemberDate26 July 2011
PlaceSydney
Decision The Tribunal sets aside the decision under review and substitutes a decision that the Commonwealth is liable to pay a pension to Mr Hunter under s 13(1) of the Veterans’ Entitlement Act 1986 in respect of the war-caused diseases Post Traumatic Stress Disorder and Alcohol Dependence (in remission) from 2 March 2005. The Tribunal remits to the Repatriation Commission the assessment of the rate of disability pension payable to Mr Hunter from 6 May 2004 and from 2 March 2005. .....................[sgd]...................
Mr R P Handley
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – entitlements – disability pension – special rate - operational service - war-caused disease – posttraumatic stress disorder – alcohol dependence and alcohol abuse – Deledio test – Tribunal not satisfied that any of the relevant facts constituting the hypothesis are disproved beyond reasonable doubt – decision under review set aside and remitted
RELEVANT ACTS
Veterans’ Entitlements Act 1986: ss 13, 120
CITATIONS
ReHunter and Repatriation Commission [2009] AATA 259
Hunter v Repatriation Commission (2010) 114 ALD 89; [2010] FCA 145
Benjamin v Repatriation Commission (2001) 70 ALD 622; (2001) 34 AAR 270; [2001] FCA 1879
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144; [1998] FCA 391
Repatriation Commission v Gorton (2001) 110 FCR 321; (2001) 65 ALD 609; (2001) 33 AAR 370; [2001] FCA 119
Re Hunter and Repatriation Commission [2002] AATA 485
Woodward v Repatriation Commission (2003) 131 FCR 473
OTHER AUTHORITIES
Statement of Principles concerning Posttraumatic Stress Disorder No 5 of 2008 dated 20 December 2007
Revocation and Determination of Statement of Principles concerning Post Traumatic Stress Disorder No 3 of 1999 dated 14 January 1999
Amendment of Statement of Principles concerning Post Traumatic Stress Disorder No 54 of 1999 dated 24 June 1999
Statement of Principles concerning Alcohol Dependence and Alcohol Abuse No 1 of 2009 dated 19 December 2008
Revocation of Statement of Principles concerning Psychoactive Substance Abuse or Dependence and Determination of Statement of Principles concerning Alcohol Dependence or Alcohol Abuse No 76 of 1998 dated 1 December 1998
REASONS FOR DECISION
26 July 2011 Mr R P Handley, Deputy President Air Vice-Marshal (Dr) T K Austin AM, Member 1.Following a successful appeal and cross-appeal in the Federal Court from the decision of the Tribunal in Re Hunter and Repatriation Commission [2009] AATA 259 (21 April 2009), Perram J ordered that the decisions of the Tribunal be set aside and remitted to the Tribunal for determination according to law: Hunter v Repatriation Commission (2010) 114 ALD 89 ; [2010] FCA 145 (25 February 2010).
2.The subject of the proceedings is Mr Hunter’s application for the review of…
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CaseChat Overview and Summary
The legal issues in this case revolved around the interpretation and application of the Veterans’ Entitlement Act 1986, particularly section 13, which addresses the entitlement to pensions for war-caused diseases. The primary issue was whether the Tribunal had correctly applied the Deledio test in assessing Mr Hunter's entitlements. The Deledio test involves determining whether the relevant facts constituting the hypothesis of the claim are disproved beyond reasonable doubt. The court needed to decide whether the Tribunal's decision to deny Mr Hunter a disability pension for his war-caused diseases was legally sound.
The Administrative Appeals Tribunal set aside the Repatriation Commission's decision, finding that the Tribunal had not been satisfied beyond reasonable doubt that any of the relevant facts constituting Mr Hunter's hypothesis were disproved. The Tribunal held that the evidence supported Mr Hunter's claims for Post Traumatic Stress Disorder and Alcohol Dependence, both of which are recognised as war-caused diseases under the relevant statements of principles. Consequently, the Tribunal substituted its decision, finding that Mr Hunter was entitled to a disability pension from 2 March 2005 for these conditions. The Tribunal also remitted the matter back to the Repatriation Commission to assess the rate of the disability pension from specified dates.
The final orders of the Tribunal mandated that the Commonwealth was liable to pay a pension to Mr Hunter for his war-caused diseases, effective from 2 March 2005, and directed the Repatriation Commission to reassess the rate of the disability pension from 6 May 2004 and 2 March 2005.
Orders
Orders of the court
The Tribunal sets aside the decision under review and substitutes a decision that the Commonwealth is liable to pay a pension to Mr Hunter under s 13(1) of the Veterans’ Entitlement Act 1986 in respect of the war-caused diseases Post Traumatic Stress Disorder and Alcohol Dependence (in remission) from 2 March 2005. The Tribunal remits to the Repatriation Commission the assessment of the rate of disability pension payable to Mr Hunter from 6 May 2004 and from 2 March 2005.
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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