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Keep and Repatriation Commission

Keep and Repatriation Commission

Case [2007] AATA 1409 6 June 2007

Veterans' Entitlements Act 1986

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Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1409
ADMINISTRATIVE APPEALS TRIBUNAL N°V 200600545

VETERANS' APPEALS DIVISION

Re: KYLIE MICHELLE KEEP

Applicant

And:

REPATRIATION COMMISSION

Respondent

DECISION
Tribunal:Mr Egon Fice, Member
Date:6 June 2007
Place:Melbourne
Decision:The decision of the Veterans’ Review Board made on 14 February 2005 should be set aside and this matter remitted to the Repatriation Commission for assessment of pension payable to Ms Keep.
(sgd) Egon Fice
Member

VETERANS’ AFFAIRS – war-caused injury – depressive disorder – anxiety disorder – pathological gambling – Statement of Principles revoked after commencement of hearing – sequential approach to dealing with revoked Statement of Principles – jurisdiction to deal with defence-caused injury – reasonable hypothesis where no Statement of Principles determined – experiencing a life-threatening event – being threatened with a weapon – objective and subjective requirements – experiencing bullying in the workplace – experiencing a severe psychological stressor
Acts Interpretation Act 1901
Military Compensation Act 1994
Military Rehabilitation and Compensation Act 2004
Safety, Rehabilitation and Compensation Act 1988
Veterans’ Entitlements Act 1986
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bushell v Repatriation Commission (1992) 109 ALR 30
Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 32
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Stoddart (2003) 134 FCR 392
Stoddart v Repatriation Commission (2003) 197 ALR 283
White v Repatriation Commission [2004] FCA 633
Woodward and Another v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
6 June 2007  Mr Egon Fice, Member
1.      Ms Kylie Keep enlisted in the Australian Army on 27 February 1991. She was allocated to the Australian Army Catering Corps to work as a cook.
2.      Ms Keep rendered operational service as defined in the Veterans’ Entitlements Act 1986 (the VE Act) in East Timor between 14 January 2000 and 20 February 2000. On 29 July 2004, Ms Keep made a claim for a disability pension under the VE Act. The claim was based on incapacity arising from a depressive condition as well as a left leg and knee condition.
3.      The Repatriation Commission (the Commission) accepted Ms Keep’s claim in respect of her left leg. The Commission refused her claim for depressive disorder with obssessional features and plica of the left knee, deciding that these conditions were not related to her military service.
4.      Ms Keep applied to the Veterans’ Review Board (the VRB) for a review of the Commission’s decision. Ms Keep withdrew her claim in respect of her left knee in the course of the hearing before the VRB which proceeded to determine her claim for depressive disorder with obssessional features. In a decision made on 8 February 2005, the VRB affirmed the decision of the Commission. Ms Keep now seeks a review of the VRB decision denying her claim for depressive disorder…

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 Keep and Repatriation Commission

Details

AGLC: Keep and Repatriation Commission [2007] AATA 1409
Case: [2007] AATA 1409
Decision Date: 6 June 2007

CaseChat Overview and Summary

Ms Kylie Michelle Keep made a claim for a disability pension under the Veterans' Entitlements Act 1986 (the VE Act) based on incapacity arising from a depressive condition as well as a left leg and knee condition. The Repatriation Commission (the Commission) accepted Ms Keep's claim in respect of her left leg. The Commission refused her claim for depressive disorder with obsessional features and plica of the left knee, deciding that these conditions were not related to her military service. Ms Keep applied to the Veterans' Review Board (the VRB) for a review of the Commission's decision. Ms Keep withdrew her claim in respect of her left knee in the course of the hearing before the VRB which proceeded to determine her claim for depressive disorder with obsessional features. In a decision made on 8 February 2005, the VRB affirmed the decision of the Commission. Ms Keep now seeks a review of the VRB decision denying her claim for depressive disorder with obsessional features. The central issue before the Tribunal was whether Ms Keep's claimed conditions are war-caused injuries in that they resulted from an occurrence that happened while she was rendering operational service. There is an additional, jurisdictional issue, regarding Ms Keep's claimed second depression hypothesis. That claim has been brought under the VE Act and there is a question as to whether the Tribunal has jurisdiction to hear that claim given that it does not relate to Ms Keep's operational service. Furthermore, the claim arose after 7 April 1994, which was the commencing date for the Military Compensation Act 1994 (the MC Act). The Tribunal found that Ms Keep's anxiety and depression, and her pathological gambling, were either contributed to in a material degree by, or were aggravated by, her eligible war service and should therefore be taken to be war-caused for the purposes of the VE Act. The decision of the VRB made on 14 February 2005 should be set aside and this matter remitted to the Commission for assessment of pension payable to Ms Keep.

Orders