MALCOLM J BURNET and REPATRIATION COMMISSION - [2009] AATA 272

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 272
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600212

VETERANS' APPEALS DIVISION )

Re MALCOLM J BURNET

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member
Dr D Weerasooriya, Member
Mr W G Evans, Member
Date21 April 2009
PlacePerth

Decision
The Tribunal affirms the decision under review.

....(sgd) Mr A Sweidan.......
Senior Member

CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – applicant claims that he suffers post traumatic stress disorder, alcohol dependance and anxiety disorder and that these conditions are war-caused – evidence does not support applicant's claims – decision under review affirmed.
LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss. 5D(1), 7(1), 9(1), 120, 196,
CASES
Repatriation Commission v Gorton (2001) 110 FCR 321
White v Repatriation Commission (2004) 39 AAR 67
REASONS FOR DECISION

21 April 2009 Mr A Sweidan, Senior Member
Dr D Weerasooriya, Member
Mr W G Evans, Member

Background
1.      Malcolm John Burnet (the applicant) served in the Royal Australian Navy (RAN) from 4 April 1968 to 2 October 1971. He had eligible RAN operational service in Vietnamese waters as follows:
14 May 1969 to 25 May 1969   HMAS VAMPIRE
21 October 1970 to 12 November 1970     HMAS SYDNEY
15 February 1971 to 4 March 1971             HMAS SYDNEY
26 March 1971 to 8 April 1971  HMAS SYDNEY
13 May 1971 to 1 June 1971  HMAS SYDNEY
20 September 1971 to 2 October 1971      HMAS SYDNEY

2.       Applicant contends that he suffers from post traumatic stress disorder and alcohol dependence and anxiety disorder, which he claims are RAN operational service-related disabilities, i.e. war caused.
3.      On 18 July 2003, the applicant submitted a claim for acceptance as war-caused of “Depression”, “Anxiety” and “Neurosis”.
4.      On 30 October 2003, a Delegate of the Repatriation Commission determined that post-traumatic stress disorder is not war-caused.
5.      On 16 December 2003, the applicant applied for review of the Delegate’s decision by the Veterans’ Review Board (VRB).
6.      On 17 May 2006, the VRB varied the decision by amending the diagnosis to Post Traumatic Stress Disorder and Alcohol Dependence and then affirmed the Delegate’s decision as varied.
Threshold Issue And The Tribunal’s Determination
7.      The threshold issue for the Tribunal’s determination is whether, based on the material before it, a reasonable hypothesis can be raised that the claimed conditions:
a.arose out of or are attributable to, or

b.were contributed to in a material degree or aggravated by,

the particular circumstances of the applicant’s RAN operational service.

8. For the reasons that follow, the Tribunal is of the opinion that it cannot form the required reasonable hypothesis. Accordingly the Tribunal after consideration of the whole of the material before it, and applying s.120(3) of the VE Act, is satisfied beyond reasonable doubt that there is no sufficient ground for determining that any of the applicant’s claimed conditions are war-caused. It follows that the decision under review must be affirmed having regard to the relevant provisions of…

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

AGLC: MALCOLM J BURNET and REPATRIATION COMMISSION [2009] AATA 272
Case: [2009] AATA 272
Decision Date: 21 April 2009

CaseChat Overview and Summary

Malcolm J Burnet sought a review of a decision by the Repatriation Commission, which had refused his application for a disability pension. Burnet claimed that he suffered from post-traumatic stress disorder, alcohol dependence, and anxiety disorder, and that these conditions were caused by his war service. The dispute was heard by the Administrative Appeals Tribunal, which was required to determine the validity of Burnet's claims and the sufficiency of the evidence provided.

The Tribunal examined the evidence presented by Burnet and considered whether it was sufficient to support his claims. It was determined that the evidence did not adequately demonstrate that Burnet's conditions were war-caused. The Tribunal also took into account medical opinions and the applicant's own testimony. Ultimately, the Tribunal found that the Repatriation Commission's decision was correct and that the evidence did not substantiate Burnet's claims for a disability pension.

In light of the findings, the Tribunal affirmed the decision of the Repatriation Commission. The Tribunal concluded that Burnet had not provided sufficient evidence to establish that his conditions were caused by his war service, and therefore, the application for a disability pension was properly refused. The orders of the Tribunal were that the decision under review be affirmed, and Burnet's application for a disability pension was dismissed.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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