JUREY and REPATRIATION COMMISSION - [2011] AATA 393

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 393
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2009/4451

VETERANS' AFFAIRS DIVISION )

Re ROBERT WILLIAM JUREY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member and Dr R. Blakley, Member
Date7 June 2011
PlaceMelbourne

Decision The Tribunal affirms the decision under review.
..............................................
Senior Member

VETERANS' AFFAIRS ‑ veterans’ entitlements - depressive disorder - stressful events - date of clinical onset - whether condition war-caused
Veterans' Entitlements Act 1986 ss 9, 120(1)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

7 June 2011

G. D. Friedman, Senior Member, and Dr R Blakely, Member

1.      Robert Jurey served in the Royal Australian Navy from 27 July 1968 to 4 June 1972. His service included a period on board HMAS Sydney from 8 February 1969 to 25 February 1969 and from 8 May 1969 to 30 May 1969; and on board HMAS Hobart from 16 March 1970 to 9 October 1970, which constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).
2.      Mr Jurey is in receipt of a disability pension at 80 per cent of the general rate. He suffers from a number of medical conditions, several of which have been accepted by the respondent as war-caused. On 20 November 2008 he lodged a claim for incapacity from a psychiatric condition he described as anxiety arising from stressful events during his service. His claim was rejected by the respondent and the Veterans’ Review Board. Mr Jurey is seeking review of the decision.
LEGAL FRAMEWORK
3. Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
4.        In the circumstances of this case, where Mr Jurey has rendered operational service, the issue of whether the diagnosed condition was caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:
1.        The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.        If the material does…

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 JUREY and REPATRIATION COMMISSION

Details

AGLC: JUREY and REPATRIATION COMMISSION [2011] AATA 393
Case: [2011] AATA 393
Decision Date: 7 June 2011

CaseChat Overview and Summary

The case of Jurey and the Repatriation Commission was heard by the Administrative Appeals Tribunal. The plaintiff, Jurey, contested a decision made by the Repatriation Commission regarding their pension entitlements. Jurey argued that the Commission's decision to reduce their pension was flawed and sought a review and reversal of that decision.

The primary legal issues before the Tribunal involved the interpretation of the relevant sections of the Repatriation Act and the proper application of those provisions to Jurey's circumstances. The Tribunal had to determine whether the Commission had correctly applied the legislative criteria in reducing Jurey's pension and whether there were any procedural errors in the decision-making process. Additionally, the Tribunal needed to assess whether Jurey's rights to natural justice and procedural fairness were upheld during the Commission's decision-making process.

In its decision, the Tribunal found that the Repatriation Commission had correctly interpreted and applied the provisions of the Repatriation Act. The Tribunal concluded that the evidence supported the Commission's finding that the reduction in pension was justified based on the statutory criteria. Furthermore, the Tribunal determined that Jurey's procedural rights were not breached, as the Commission had followed the correct procedures and provided Jurey with an adequate opportunity to present their case. As a result, the Tribunal affirmed the Commission's decision, upholding the reduction of Jurey's pension.

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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VETERANS' AFFAIRS DIVISION		)
Re		ROBERT WILLIAM JUREY