KALUZA Applicant And REPATRIATION COMMISSION

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 498

ADMINISTRATIVE APPEALS TRIBUNAL      )

) 2006/840

VETERANS’ APPEALS DIVISION		)
Re		STANISLAW KALUZA

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member
Dr M E C Thorpe, Member

Date              2 July 2010

PlaceSydney

Decision The Tribunal varies the decision under review to find that Mr Kaluza suffers anxiety disorder, alcohol abuse and hypertension. The Tribunal finds that none of those conditions are war-caused.

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Ms G Ettinger   Senior Member

4.      Justice Branson of the Federal Court (as her Honour then was), dismissed the first leg of the appeal, upheld the Applicant on the second, and remitted the matter to the Tribunal, stating that: Neither party identified a reason why, if the matter were remitted, it would be necessary for the Tribunal to be differently constituted or for further evidence to be adduced.

5.      The hearing of the remittal took place on 3 May 2010 before the Tribunal as formerly constituted. Mr Kaluza was represented by Mr C Colborne, and the Respondent by Ms K Eastman, both of counsel. We had before us the T-documents, the Exhibits which had been before the Tribunal in 2008, and the Transcript of the hearing in 2008.  As there was disagreement about the scope of the remittal, we have dealt first with that, in the paragraphs immediately below.

6.      By way of background we note that Mr Kaluza is a 63 year old veteran who served in the Royal Australian Air Force (Air Force) from 29 August 1963 to 31 October 1983, and had both operational and eligible war service. He was an aircraft technician, and participated in several flights to Vietnam.  He was seeking to have conditions he suffers accepted as war-caused.

7.      The events which Mr Kaluza claimed as stressors occurred in the Hercules in which he was flying home from Vietnam in February 1969, and included the invitation to join three of his colleagues in a game of cards being played on the casket of a deceased soldier who was being repatriated. It was agreed by both parties that Mr Kaluza held an incorrect belief, at the time, about the identity of the deceased soldier in the casket.

8.      A further stressor took place on another flight in 1968 according to Mr Kaluza. He claimed that on that occasion, he was confronted with approximately 20 wounded soldiers who were in various stages of injury, and were being evacuated.

ISSUES BEFORE THE TRIBUNAL

9.      The issues which the Tribunal had to decide were:

·     The scope of the remittal;

·     The implications of Justice Branson’s decision on the dates of Mr Kaluza’s operational service;

· Whether the diagnosed conditions Mr Kaluza was found by the earlier Tribunal to be suffering, being anxiety disorder, alcohol abuse and hypertension, are war-caused pursuant to section 9(1) of the Veterans’ Entitlements Act 1986 (the Act), taking into account both the Veteran’s eligible and operational service.

10.     We noted that the…