LESLIE MCANALLY and REPATRIATION COMMISSION - [2009] AATA 354

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 354
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1666

VETERANS' APPEALS DIVISION )

Re LESLIE MCANALLY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member
Dr S H Toh, Member
Date15 May 2009
PlaceSydney

Decision
The Administrative Appeals Tribunal decides to:

1.     Affirm the decision under review in relation to alcohol dependence;

2.     Vary the decision under review in relation to post traumatic stress disorder by substituting a diagnosis of depressive disorder, and affirm the decision under review as varied.

.....................[Sgd].........................
Ms N Isenberg
  Senior Member

CATCHWORDS
VETERANS' ENTITLEMENTS – review of decision that post traumatic stress disorder and alcohol dependence are not related to service – applicant claims that he suffers post traumatic stress disorder and alcohol dependence and that these conditions are war-caused – evidence does not support applicant's claims – does the applicant suffer any other psychiatric condition and if so is it war caused.
RELEVANT ACT/S:
Veterans’ Entitlements Act 1986 (Cth) ss 9, 13(1), 120, 120(1), 120(3), s120(6) 196A, 196B(2) and 196B(14).
CITATIONS
Gorton v Repatriation Commission [2001] FCA 1194
Repatriation Commission v Keeley (2000) 98 FCR 108
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Cooke (1998) 90 FCR 307
Gerzina v Repatriation Commission [2004] FCAFC 96
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Deledio (1998) 83 FCR 82
Lees v Repatriation Commission (2002) 125 FCR 331
Bull v Repatriation Commission (2001) 66 ALD 271
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
Repatriation Commission v Bey (1997) 79 FCR 364
Youngnickel v Repatriation Commission [2004] FCA 1691
Repatriation Commission v Hill [2002] FCAFC 192
Repatriation Commission v Lees (2002) 36 AAR 484
Bushell v Repatriation Commission (1992) 175 CLR 408
Stoddart v Repatriation Commission (2003) FCA 334
Repatriation Commission v Cornelius [2002] FCA 750
AUTHORITIES
Statement of Principles concerning posttraumatic stress disorder No. 5 of 2008.
Statement of Principles concerning posttraumatic stress disorder No. 3 of 1999
Statement of Principles concerning depressive disorder No. 28 of 2008.
Statement of Principles concerning depressive disorder No. 58 of 1998
Statement of Principles concerning alcohol dependence and alcohol abuse No. 1 of 2009.
Statement of Principles concerning alcohol dependence and alcohol abuse No. 76 of 1998
REASONS FOR DECISION

15 May 2009 Ms N Isenberg, Senior Member
Dr S H Toh, Member

Background

1. Mr McAnally served in the Royal Australian Navy between 8 July 1967 and 8 April 1988. His “operational service” as defined in the Act was from 16 March 1970 to 9 October 1970.
2.      Mr McAnally also rendered eligible defence service between 7 December 1972 and 8 April 1988, but this was not relevant to his claim.
3.      Mr McAnally claimed for ‘stress problems’ and contends that he suffers PTSD and alcohol dependence because of aspects of his service in Vietnamese waters aboard HMAS Hobart.
4.      Mr McAnally seeks review of the decision…

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.

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Details

Case: [2009] AATA 354
Decision Date: 15 May 2009

CaseChat Overview and Summary

Leslie Mcanaly sought a review of a decision by the Repatriation Commission which found that his post-traumatic stress disorder and alcohol dependence were not related to his service. The applicant contended that he suffered from these conditions and that they were war-caused. The Administrative Appeals Tribunal was required to determine whether the applicant suffered from any other psychiatric condition and, if so, whether it was war-caused.

In reaching its decision, the Tribunal considered the evidence presented and concluded that it did not support the applicant's claims of post-traumatic stress disorder and alcohol dependence. However, the Tribunal found that the applicant did suffer from a psychiatric condition, namely depressive disorder, which was war-caused. The Tribunal therefore affirmed the decision under review in relation to alcohol dependence but varied the decision in relation to post-traumatic stress disorder by substituting a diagnosis of depressive disorder.

The Tribunal's decision was based on its assessment of the evidence and its application of relevant legal principles. The Tribunal noted that the applicant's claims of post-traumatic stress disorder and alcohol dependence were not supported by the evidence, and that the applicant's psychiatric condition was more accurately described as depressive disorder. The Tribunal also considered the relevant statutory provisions and authorities in reaching its decision.

The Administrative Appeals Tribunal affirmed the decision under review in relation to alcohol dependence and varied the decision in relation to post-traumatic stress disorder by substituting a diagnosis of depressive disorder. The Tribunal affirmed the decision under review as varied.

Orders

Orders of the court

The Administrative Appeals Tribunal decides to:

1. Affirm the decision under review in relation to alcohol dependence;

2. Vary the decision under review in relation to post traumatic stress disorder by substituting a diagnosis of depressive disorder, and affirm the decision under review as varied.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

15 May 2009	Ms N Isenberg, Senior Member Dr S H Toh, Member
Background