Hyland and Repatriation Commission - [2003] AATA 597

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 597
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/267
VETERANS' APPEALS DIVISION

Re: DENIS CHARLES HYLAND
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       M.J. Carstairs, Member
Date:             26 June 2003
Place:            Melbourne
Decision:The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s depressive disorder is war‑caused within the meaning of the Veterans' Entitlements Act 1986 with effect from 2 July 2000 and remits the matter to the respondent for assessment of the rate of pension.
(sgd) M.J. Carstairs
Member

VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ depressive disorder ‑ whether war‑caused ‑ whether severe psychosocial stressor ‑ whether clinical onset within two years of stressor
Veterans’ Entitlements Act 1986 s9, 120, 120A
O’Neil v Repatriation Commission (2001) 34 AAR 290
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill [2002] FCAFC 192
Byrnes v Repatriation Commission (1993) 177 CLR 564
REASONS FOR DECISION
26 June 2003  M.J. Carstairs, Member
1.      This is an application by Denis Charles Hyland (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 14 December 2001. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 8 December 2000 to refuse a claim for disability pension for depressive disorder because the condition was not war‑caused.
2.      At the hearing of this matter on 18 March 2003 and 2 June 2003 Ms J. Bornstein of counsel, instructed by Williams Winter Solicitors, represented the applicant and Mr G. Purcell of counsel, instructed by the Department of Veterans’ Affairs, represented the respondent.
3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T15), together with five exhibits (Exhibits A1-A5) lodged by the applicant and six exhibits (Exhibits R1-R6) lodged by the respondent.
BACKGROUND
4.      The applicant was born on 12 December 1948. After leaving school at the age of 17 years he went into the family business as an apprentice butcher. He served with the Australian Army from 22 April 1970 to 9 December 1971 as a national serviceman. The applicant served with the 25^th Supply Platoon, Royal Australian Army Service Corps in Vietnam from 28 April 1971 to 28 October 1971. In accordance with s9 of the Veterans’ Entitlements Act 1986 (the Act), this period was operational service.
5.      After his discharge the applicant returned to the family business for four years, then worked for a further two years in other butcher shops. He decided to operate a florist business, which he sold after seven years and returned to the meat trade for two years. He was first married in 1974 and the marriage lasted four years. In 1983 he re-married, before separating in 1998. After the second marriage ended his general practitioner prescribed anti-depressant medication and the applicant sought counselling for anxiety and anger.
6.      On 2 October 2000 the applicant lodged a claim for disability pension for hearing loss and tinnitus, solar skin…

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 Hyland and Repatriation Commission

Details

AGLC: Hyland and Repatriation Commission [2003] AATA 597
Case: [2003] AATA 597
Decision Date: 26 June 2003

CaseChat Overview and Summary

Denis Charles Hyland appealed against a decision by the Veterans' Review Board affirming a decision of a delegate of the Repatriation Commission that his claim for disability pension for depressive disorder was not war-caused. The Tribunal, presided over by Member M.J. Carstairs, considered whether the depressive disorder was war-caused within the meaning of the Veterans' Entitlements Act 1986. The Tribunal found that the applicant's depressive disorder was war-caused due to a severe psychosocial stressor during his service in Vietnam, specifically witnessing the severe injuries of Corporal Andy Anderson, his former recruit training instructor. The Tribunal accepted the applicant's evidence, the medical reports, and the photographic evidence as substantiation of the severe psychosocial stressor and its impact on the applicant. The Tribunal found that the hypothesis connecting the depressive disorder with the applicant's service met the criteria set out in the relevant Statement of Principles. The Tribunal was not satisfied beyond reasonable doubt that there was no sufficient ground for determining that the applicant's depressive condition was war-caused. Consequently, the Tribunal set aside the decision under review and substituted its decision that the applicant’s depressive disorder was war-caused with effect from 2 July 2000. The matter was remitted to the respondent for assessment of the rate of pension.

Orders