Hunter and Repatriation Commission

Case [2011] AATA 514


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, Member

Date26 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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AGLC
Hunter and Repatriation Commission [2011] AATA 514
Case
[2011] AATA 514
Decision Date

CaseChat Overview and Summary

The case involved Mr Hunter, a veteran, and the Repatriation Commission, with the dispute centering on Mr Hunter's entitlements under the Veterans' Entitlement Act 1986, specifically in relation to his eligibility for a disability pension for war-caused diseases, including Post Traumatic Stress Disorder and Alcohol Dependence (in remission). The case was initially heard in the Administrative Appeals Tribunal and later in the Federal Court of Australia.

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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