Livermore and Repatriation Commission - [2011] AATA 217

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2009/1124

Veterans' Appeals Division )

Re: Peter Livermore
Applicant

And: Repatriation Commission
Respondent
ORDER TO AMEND WRITTEN DECISION
TRIBUNAL:             Senior Member Jill Toohey
DATE:                      15 April 2011
PLACE:                   Sydney
1.On 30 March 2011, the Tribunal published a decision and written reasons in this proceeding.
2.The Tribunal is satisfied that that there are obvious errors in the text of the decision and the written statement of reasons and directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision from:
The decision under review is set aside and the following decision substituted for it:
(i) Mr Livermore’s post traumatic stress disorder was aggravated by his service in East Timor; and
(ii) the matter is remitted to the Repatriation Commission for assessment.

so that it now reads:
The decisions under review are set aside and the following decision substituted for them:
(i) in respect of Mr Livermore’s post traumatic stress disorder, the Tribunal is satisfied that it was aggravated by his service in East Timor; and
(ii) the matter of Mr Livermore’s other conditions is remitted to the Repatriation Commission for assessment taking into account the determination in respect of his post traumatic stress disorder.

3.Paragraph 8 of the written statement of reasons is amended so that reference to ‘a decision’ is now ‘decisions’.
4.Paragraph 102 is deleted and replaced with the following text:
Other than the evidence of Dr Dinnen and Dr Roberts concerning whether Mr Livermore suffers from depression, no evidence was led in relation to any of his other conditions. While they do not appear to be in dispute, we make no findings about them. In the circumstances, we set aside the decisions under review and instead decide that:
(i) in respect of Mr Livermore’s post traumatic stress disorder, the Tribunal is satisfied that it was aggravated by his service in East Timor; and
(ii) the matter of Mr Livermore’s other conditions is remitted to the Repatriation Commission for assessment taking into account the determination in respect of his post traumatic stress disorder.
..................[sgd]................................
Jill Toohey
Senior Member

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 217
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1124

Veterans' Appeals DIVISION )

Re Peter Livermore

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal Senior Member Jill Toohey and Dr H S Toh, Member
Date30 March 2011
PlaceSydney

Decision The decisions under review are set aside and the following decision substituted for them:
(i) in respect of Mr Livermore’s post traumatic stress disorder, the Tribunal is satisfied that it was aggravated by his service in East Timor; and
(ii) the matter of Mr Livermore’s other conditions is remitted to the Repatriation Commission for assessment taking into account the determination in respect of his post traumatic stress disorder.

..................[sgd]............................
Senior Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – reasonable hypothesis - post traumatic stress disorder following service in Malaysia accepted – whether post traumatic stress…

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 Livermore and Repatriation Commission

Details

AGLC: Livermore and Repatriation Commission [2011] AATA 217
Case: [2011] AATA 217
Decision Date: 30 March 2011

CaseChat Overview and Summary

In this matter, the appellant, Mr Livermore, challenged a decision of the Repatriation Commission regarding his veterans’ entitlements. The Federal Court was tasked with determining whether Mr Livermore’s post-traumatic stress disorder (PTSD) was aggravated by his service in East Timor and if the Repatriation Commission had correctly assessed his other conditions. The Court was also required to consider whether certain incidents relied upon by Mr Livermore to establish aggravation of his PTSD had occurred and whether these incidents were appropriately disclosed.

The central legal issue before the Court was whether the Tribunal's findings that Mr Livermore’s PTSD was aggravated by his service in East Timor were supported by the evidence and whether the incidents relied upon were sufficiently disclosed and proven. Additionally, the Court had to examine whether the hypothesis connecting the aggravation of PTSD to Mr Livermore’s service in East Timor was reasonable on the balance of probabilities. The Repatriation Commission argued that the Tribunal had erred in finding that the incidents occurred and that the hypothesis was reasonable.

The Court found that the Tribunal was satisfied on the balance of probabilities that the incidents relied upon by Mr Livermore did occur, despite the delay in their disclosure. The Court held that the Tribunal's conclusion that these incidents contributed to the aggravation of Mr Livermore’s PTSD was reasonable and supported by the evidence. The Court also determined that the hypothesis connecting the aggravation of PTSD to his service in East Timor was reasonable and that the Commission’s decision did not adequately consider the Tribunal’s findings. Consequently, the Court set aside the decisions under review and substituted its own decision, affirming that Mr Livermore’s PTSD was indeed aggravated by his service in East Timor.

The Court further remitted the matter of Mr Livermore’s other conditions to the Repatriation Commission for reassessment, taking into account the determination regarding his PTSD. The Court’s decision highlighted the importance of the Tribunal’s findings and the reasonable hypothesis in assessing veterans’ entitlements, ensuring that the Commission appropriately considered all relevant evidence and findings.

Orders

Orders of the court

The decisions under review are set aside and the following decision substituted for them:

(i) in respect of Mr Livermore’s post traumatic stress disorder, the Tribunal is satisfied that it was aggravated by his service in East Timor; and

(ii) the matter of Mr Livermore’s other conditions is remitted to the Repatriation Commission for assessment taking into account the determination in respect of his post traumatic stress disorder.

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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