Kilmister and Repatriation Commission - [2004] AATA 310

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 310
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/1072

VETERANS' APPEALS DIVISION
)

Re DENNIS DEREK KILMISTER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr O Rinaudo, Member
Date26 March 2004
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the conditions of post traumatic stress disorder and alcohol dependence or alcohol abuse are war-caused with effect from 22 March 1999.

...................(Sgd)......................
O Rinaudo
Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – applicant suffering from war-caused post traumatic stress disorder – alcohol dependence or abuse - diagnosis – whether applicant has suffered a severe stressor – decision set aside
Veterans’ Entitlements Act 1986 ss 9, 70, 120(1), 120(3)
Stoddart v Repatriation Commission [2003] FCA 334
Repatriation Commission v Deledio (1998) 83 FCR 82
Budworth v Repatriation Commission [2001] FCA 317
Benjamin v Repatriation Commission [2001] FCA 1879
Woodward v Repatriation Commission [2003] FCAFC 160
Harris v Repatration Commssion (2000) 31 AAR 270
Arnott v Repatriation Commission (2001) 32 AAR 445
Repatriation Commission v Stoddart [2003] FCAFC 300
REASONS FOR DECISION

26 March 2004 Mr O Rinaudo, Member

Decision Under Review
1. The applicant seeks review of a decision made by the respondent on 11 February 2000 that determined post traumatic stress disorder is not related to service within the meaning of section 9 and section 70 of the Veterans’ Entitlements Act 1986 (the Act).
2.      On 8 October 2001 the Veterans’ Review Board varied the diagnosis to include alcohol dependence (in remission) and alcohol amnestic syndrome but otherwise affirmed the decision under review as varied.
History
3.      The applicant served in the Royal Australian Navy from 6 January 1964 to 5 January 1973. The applicant rendered operational service as follows:
·      HMAS Yarra in North Borneo and Malay Peninsular/Singapore from 17 June 1965 to 17 July 1965 and 4 August 1965 to 17 August 1965 and in Vietnam between 25 April 1966 and 9 May 1966 and 26 May 1966 to 9 June 1966
·      HMAS Stuart in Vietnam from 16 May 1967 to 8 June 1967
·      HMAS Parramatta in Vietnam from 15 May 1971 to 24 May 1971

4.      The applicant also rendered eligible defence service from 7 December 1972 until his discharge on 5 January 1973.
5.      In this application the applicant relies on two severe stressors, namely, being locked in the boiler room of HMAS Yarra in 1965 and seeing human and animal bodies floating in the water up a river in Vietnam.
Hearing
6.      At the hearing of the application, the applicant and Captain Josephs gave evidence. In addition to the oral evidence, the following documentary evidence was tendered.
Exhibit 1        “T” Documents
Exhibit 2        Statement of Dennis Kilmister dated 6 February 2002
Exhibit 3        Statement of Dennis Kilmister dated 21 January 2003
Exhibit 4Writeway Report – Captain JA Josephs AM dated 6 January 2003
Exhibit 5Report of Dr Peter Mulholland dated 21 August…

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 Kilmister and Repatriation Commission

Details

AGLC: Kilmister and Repatriation Commission [2004] AATA 310
Case: [2004] AATA 310
Decision Date: 26 March 2004

CaseChat Overview and Summary

The applicant, Kilmister, brought an appeal against the Repatriation Commission, seeking to have the conditions of post traumatic stress disorder (PTSD) and alcohol dependence or abuse, which he claims were caused by his service in the armed forces, recognised as war-caused for the purposes of the Veterans’ Entitlements Act 1986. The dispute was heard and determined by the Federal Court of Australia. The central issue before the court was whether the applicant had suffered a severe stressor during his service that could be considered a war-caused condition under the Act. The court also had to determine if the applicant’s alcohol dependence or abuse was a result of his war service.

The court considered the medical evidence and expert opinions provided by both parties, as well as relevant case law, to assess the applicant's claims. It found that the applicant had indeed suffered a severe stressor during his service, which met the criteria for a war-caused condition under the Act. The court also concluded that the applicant's alcohol dependence or abuse was a consequence of his war-caused PTSD. The decision of the Repatriation Commission to deny the applicant's claim was set aside, and the court determined that the conditions of PTSD and alcohol dependence or abuse were war-caused from 22 March 1999.

The Federal Court of Australia set aside the decision of the Repatriation Commission and substituted its own decision that the conditions of PTSD and alcohol dependence or abuse were war-caused with effect from 22 March 1999. This decision recognised the applicant's claims and entitled him to the relevant benefits and entitlements under the Veterans’ Entitlements Act 1986.

Orders

Orders of the court

The Tribunal sets aside the decision under review and in substitution therefor determines that the conditions of post traumatic stress disorder and alcohol dependence or alcohol abuse are war-caused with effect from 22 March 1999.

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' APPEALS DIVISION		)
Re		DENNIS DEREK KILMISTER