Law and Repatriation Commission - [2004] AATA 1341

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1341
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/236

VETERANS' APPEALS DIVISION
)

Re BARRY NORMAN LAW

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr RG Kenny, Member
Date16 December 2004
PlaceBrisbane

Decision

The Tribunal:

(a)      affirms the decision under review in relation to depressive disorder;            and

(b)      sets aside the decision under review in relation to post traumatic            stress disorder and alcohol dependence or abuse and substitutes            its decision that those conditions are war-caused diseases, that            pension for any incapacity associated with those diseases is            payable to the applicant from and including 21 May 2001 and that            the matter of assessment of that incapacity is remitted to the            Repatriation Commission.

...................[Sgd].....................
RG Kenny
  Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – disability pension – operational service with Australian Army – diagnosis of psychiatric conditions – application of Statements of Principles – reasonable hypothesis of relevant relationship to service – clinical onset of psychiatric conditions – post traumatic stress disorder not clinically significant at relevant time for depressive disorder - decision on post traumatic stress disorder and alcohol dependence or abuse set aside - decision on depressive disorder affirmed.
Veterans’ Entitlements Act 1986 ss 5D, 6C, 6D, 7, 9, 14, 120, 120A, 177
Fogarty v Repatriation Commission (2003) AAR 363
Repatriation Commission v Deledio (1998) 83 FCR 82; 49 ALD 193
Woodward v Repatriation Commission (2003) 37 AAR 424
Deledio v Repatriation Commission (1997) 47 ALD 261
White v Repatriation Commission [2004] FCA 633
Repatriation Commission v Stoddart (2003) 38 AAR 176; 77 ALD 67
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Lees v Repatriation Commission (2002) 74 ALD 68
REASONS FOR DECISION

16 December 2004 Mr RG Kenny, Member

Background
1.      Barry Law (the applicant) served in the Australian Army as a national serviceman from 1 May 1968 until 30 April 1970. During that period, he was in South Vietnam from 23 April 1969 until 11 March 1970. Mr Law contends that he now suffers from psychiatric conditions in the form of post traumatic stress disorder, alcohol dependence or abuse and depressive disorder and he attributes the causation of those conditions to circumstances that arose during his service in South Vietnam.
2. Mr Law lodged a claim for acceptance of post traumatic stress disorder with the Repatriation Commission (the respondent) on 21 August 2001. The claim, made in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act), was rejected by a delegate of the respondent on 13 May 2002. The delegate determined that post traumatic stress disorder, depressive disorder and alcohol dependence or alcohol abuse were not related to Mr Law’s service. That decision was affirmed by the Veterans’ Review Board on 12 January 2004 and, on 31 March 2004, Mr Law sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
3.      At the hearing, Mr Law was represented by Mr J Selfridge of Counsel and…

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 Law and Repatriation Commission

Details

AGLC: Law and Repatriation Commission [2004] AATA 1341
Case: [2004] AATA 1341
Decision Date: 16 December 2004

CaseChat Overview and Summary

In this case, the applicant, Mr Law, appealed a decision of the Repatriation Commission regarding his eligibility for a disability pension. The dispute revolved around whether Mr Law's psychiatric conditions, specifically post traumatic stress disorder, alcohol dependence or abuse, and depressive disorder, were war-caused diseases under the Veterans’ Entitlements Act 1986. The Administrative Appeals Tribunal (AAT) was tasked with reviewing the decision of the Commission.

The legal issues before the AAT were whether the Commission was correct in its determination that Mr Law's post traumatic stress disorder and alcohol dependence or abuse were not war-caused diseases, and whether the Commission was correct in finding that his depressive disorder was war-caused. The AAT needed to determine whether the clinical onset of these conditions was reasonably related to Mr Law's operational service with the Australian Army, and whether the Commission applied the correct legal principles in making its decisions.

The AAT found that the Commission was incorrect in its decision regarding post traumatic stress disorder and alcohol dependence or abuse. The Tribunal held that these conditions were war-caused diseases, as they were reasonably related to Mr Law's service. However, the AAT affirmed the Commission's decision on depressive disorder, finding that it was correctly determined to be war-caused. The AAT set aside the Commission's decision on post traumatic stress disorder and alcohol dependence or abuse, and substituted its own decision that these conditions were war-caused diseases. The matter of assessing the incapacity associated with these diseases was remitted to the Repatriation Commission.

The Tribunal affirmed the decision under review in relation to depressive disorder and set aside the decision under review in relation to post traumatic stress disorder and alcohol dependence or abuse. The Tribunal substituted its decision that these conditions were war-caused diseases, and that pension for any incapacity associated with those diseases was payable to Mr Law from and including 21 May 2001. The matter of assessment of that incapacity was remitted to the Repatriation Commission.

Orders

Orders of the court

The Tribunal:

(a) affirms the decision under review in relation to depressive disorder; and

(b) sets aside the decision under review in relation to post traumatic stress disorder and alcohol dependence or abuse and substitutes its decision that those conditions are war-caused diseases, that pension for any incapacity associated with those diseases is payable to the applicant from and including 21 May 2001 and that the matter of assessment of that incapacity is remitted to the Repatriation Commission.

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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