Jensen and Repatriation Commission - [2005] AATA 392

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 392
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2003/208

VETERANS' APPEALS DIVISION )

Re ROBERT JENSEN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr John Handley, Senior Member
Date4 May 2005
PlaceMelbourne

Decision The decision under review is set aside and in substitution it is decided that the conditions of PTSD and alcohol abuse or alcohol dependence are war-caused. The application is otherwise remitted to the respondent for assessment of pension in accordance with these reasons.
(Sgd) John Handley
Senior Member

VETERANS’ ENTITLEMENTS – Vietnam service – whether events in service as alleged occurred – perception by applicant of threat – subjective reaction – whether any clinical worsening of alcohol abuse by service – whether applicant suffered generalised anxiety disorder or PTSD – decision set aside
Veterans’ Entitlements Act 1986 (C’th) s24
Budworth v Repatriation Commission (2001) 63 ALD 422
Stoddart v Repatriation Commission [2003] FCA 334
Woodward v Repatriation Commission [2003] FCAFC 160
Benjamin v Repatriation Commission [2001] FCA 1879
Budworth v Repatriation Commission [2001] FCA 317
Gerzina v Repatriation Commission [2004] FCAFC 96
State of New South Wales v Seedsman [2000] NSWCA 119
Repatriation Commission v Deledio (1998) 83 FCR 82
Delahunty v Repatriation Commission [2004] FCA 309
REASONS FOR DECISION

4 May 2005 Mr John Handley, Senior Member

1.       The applicant applies to review a decision of the Veterans’ Review Board (“VRB”) made on 3 February 2003. The VRB then decided to affirm a decision made by the respondent on 23 February 2002 to refuse a claim for acceptance of the conditions of anxiety disorder and alcohol dependence or abuse.
2.       The applicant presently receives pension at 30 per cent of the general rate for the accepted condition of bilateral sensorineural hearing loss. The conditions post-traumatic stress disorder (“PTSD”), tinea, cirrhosis, pesplanus, anxiety disorder and alcohol dependence have been rejected.
3.       Mr Jensen is presently 53 years of age having been born on 14 April 1952. He was a member of the Australian Army between 13 August 1969 and 6 November 1972. He served in Vietnam between 26 August 1971 and 7 March 1972.
4.       By this review Mr Jensen seeks acceptance of the conditions which were rejected by the respondent, together with pension at the special rate.
5.       The hearing of the application commenced in Warrnambool on 8 September 2004 and was adjourned part heard. It resumed in Melbourne on 12 November and 15 December 2004. It was again adjourned and further investigations were undertaken by the applicant’s solicitor. Written submissions were subsequently lodged. A number of documents were received into evidence and will be referred to in these reasons. Mr De Marchi appeared on behalf of the applicant and Mr Douglass appeared on behalf of the respondent.
robert jensen
6.       Mr Jensen has resided in Warrnambool for the last two years. Previously he was a resident of Queensland. He was last employed by the RSL on Bribie Island as a casual general hand. He…

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 Jensen and Repatriation Commission

Details

AGLC: Jensen and Repatriation Commission [2005] AATA 392
Case: [2005] AATA 392
Decision Date: 4 May 2005

CaseChat Overview and Summary

Jensen and the Repatriation Commission were the parties involved in this dispute, which was heard by the Federal Court of Australia. Jensen sought a review of a decision by the Commission that had denied him pension benefits for post-traumatic stress disorder (PTSD) and alcohol abuse or dependence, claiming these conditions were war-caused. The central issue before the court was whether the Commission's decision to deny Jensen's claim was legally sound.

The court was required to examine the evidence presented to the Commission and determine if the Commission had correctly applied the relevant legislative provisions in its decision. The court had to assess whether the Commission had erred in its findings regarding the causation of Jensen's conditions, and if the evidence supported a finding that his PTSD and alcohol abuse or dependence were war-caused. Additionally, the court had to consider whether the Commission had adequately considered all relevant evidence and applicable legal principles.

In its reasoning, the court found that the Commission had erred in its decision-making process by failing to adequately consider the evidence provided by Jensen and the expert medical reports. The court determined that the evidence did, in fact, support a finding that Jensen's PTSD and alcohol abuse or alcohol dependence were war-caused. Consequently, the court set aside the original decision and decided that these conditions were indeed war-caused. The court remitted the matter to the Commission for reassessment of Jensen's pension entitlements in light of these findings.

Orders

Orders of the court

The decision under review is set aside and in substitution it is decided that the conditions of PTSD and alcohol abuse or alcohol dependence are war-caused. The application is otherwise remitted to the respondent for assessment of pension in accordance with these reasons.

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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