JOHN WRIGHT and REPATRIATION COMMISSION - [2009] AATA 187

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 187
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2770

VETERANS' APPEALS DIVISION )

Re JOHN WRIGHT

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr K S Levy RFD, Senior Member
Dr G J Maynard, Brigadier (Rtd), Member
Date19 March 2009
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
...............[Sgd]...............................
Senior Member

CATCHWORDS
VETERAN’S AFFAIRS – veteran’s entitlements – rate of pension payable – whether anxiety disorder is result of operational service – stressors suffered are not negative life events the effects of which are chronic in nature – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 5C, 5D, 6C, 9, 120(4), 120A, 120B, 196B(2)
Favelle Mort Ltd v Murray (1976) 133 CLR 580
Federal Commissioner of Taxation v St Hubert’s Island Pty Ltd (In Liq) (1978) 138 CLR 210
Lees v Repatriation Commission (2002) 74 ALD 68
Mines v Repatriation Commission (2004) 86 ALD 62
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Sherritt Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VR 342
White v Repatriation Commission (2004) 39 AAR 67
REASONS FOR DECISION

19 March 2009 Dr K S Levy RFD, Senior Member
Dr G J Maynard, Brigadier (Rtd), Member

INTRODUCTION
1.      The Applicant, John Wright, rendered service with the Royal Australian Navy (“RAN”) from 10 March 1967 to 9 March 1976. He served on operational service in South Vietnam on HMAS Brisbane from 16 March 1971 to 11 October 1971.
2. Mr Wright made application to the Repatriation Commission to have recognition of a claim for anxiety disorder under s 9 of the Veterans’ Entitlements Act 1986 (“the Act”). The Repatriation Commission rejected the application on 8 January 2008. On review to the Veterans’ Review Board, the original decision was affirmed on 26 May 2008. Mr Wright now appeals to this Tribunal.
ISSUE
3.      Counsel for the Applicant stated in opening submissions that there was no dispute as to diagnosis and no dispute as to onset of the condition. It was put to the Tribunal that the only issue for determination was whether the Applicant met the criteria of a stressor: that is, whether there was a category 2 stressor in terms of Statement of Principle No 101 of 2007 (“the SoP”).
EVIDENCE
4.      The record shows Mr Wright has service related disabilities of gastro-oesophageal reflux disease and sensorineural hearing loss in the left ear. He was eligible for treatment only for his anxiety disorder, which has not been regarded as service related. It is noted that the conditions of hiatus hernia, erectile dysfunction and duodenitis (NIF) are non-service related. However, it was common ground that if the Tribunal finds in favour of the claim for anxiety disorder, the condition of erectile dysfunction should also be recognised.
5.      The claim in this case is premised on factor 6(c) of the SoP on the basis that…

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 JOHN WRIGHT and REPATRIATION COMMISSION

Details

AGLC: JOHN WRIGHT and REPATRIATION COMMISSION [2009] AATA 187
Case: [2009] AATA 187
Decision Date: 19 March 2009

CaseChat Overview and Summary

John Wright, a veteran, and the Repatriation Commission were before the court to determine the rate of pension payable to Wright, with the central issue being whether Wright’s anxiety disorder arose from his operational service. The dispute was heard and determined by the Administrative Appeals Tribunal (AAT). The AAT was tasked with examining the evidence and applying relevant statutory provisions to ascertain whether Wright's anxiety disorder was linked to his service, and if so, to what extent it warranted a higher pension rate.

The primary legal issues revolved around the interpretation and application of the Veterans' Entitlements Act 1986 (Cth). Specifically, the court had to determine if Wright’s anxiety disorder qualified as an injury connected to his service under section 5C of the Act. Furthermore, the court had to assess the nature of the stressors Wright experienced during his service and whether these constituted negative life events that had chronic effects, as required by section 5D. The AAT also considered relevant case law, such as Lees v Repatriation Commission, Re Robertson and Repatriation Commission, and others, to guide its interpretation of the statutory provisions.

In reaching its decision, the AAT examined the evidence presented regarding Wright’s service and subsequent medical condition. It found that although Wright had experienced stressors during his operational service, these were not the type of negative life events that would have chronic effects as defined by the Act. The AAT concluded that Wright’s anxiety disorder did not arise from his service but rather from a combination of factors post-service. Therefore, the Tribunal affirmed the decision under review, upholding the lower rate of pension granted to Wright.

No additional orders were made beyond affirming the decision under review.

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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