McDowall and Repatriation Commission

[2004] AATA 1054

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1054

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/785

VETERANS' APPEALS DIVISION		)
Re		WAYNE LESLIE McDOWALL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member McCabe

Date12 October 2004

PlaceBrisbane

Decision The Tribunal sets aside the decision under review.    

.................[Sgd]........................

Senior Member B J McCabe

CATCHWORDS

VETERANS’ ENTITLEMENTS – pensions and benefits – whether reasonable hypothesis exists connecting veteran’s injuries with service – whether respondent can disprove a necessary fact beyond a reasonable doubt – decision set aside

Veterans’ Entitlements Act 1986

Repatriation Commission v Deledio (1998) 83 FCR 82

Benjamin v Repatriation Commission [2001] FCA 1879

Re Benjamin and Repatriation Commission [2004] AATA 738

REASONS FOR DECISION

12 October 2004 Senior Member McCabe    

Introduction

1.      This is an application for review of a decision of the Veterans’ Review Board (the VRB) of 2 July 2003.  The VRB modified the respondent’s decision of 5 December 2002 by substituting a diagnosis of post traumatic stress disorder (PTSD) for depressive disorder and anxiety disorder.  The decision was otherwise affirmed.

2.      The matter was heard on 12 July 2004.  The applicant was represented by Mr Honchin of counsel.  The respondent was represented by Mr Stoner, a departmental advocate.

3. The documents compiled pursuant to s 37 Administrative Appeals Tribunal Act 1975 were before the Tribunal.  The applicant also submitted a statement dated 20 January 2004.  The respondent submitted a report prepared by Dr Mulholland (a psychiatrist) dated 25 May 2004.  The applicant and Dr Mulholland both gave oral evidence.

The Facts

4.      Mr McDowall served in the Royal Australian Navy (the RAN) from 3 January 1962 to 2 January 1982.  For the purposes of the Veterans’ Entitlements Act 1986 (the Act) he rendered operational service as follows:

• 19 January 1965 – 17 March 1965;
• 27 May 1965 – 26 June 1965;
• 11 August 1965 – 25 September 1965;
• 20 September 1965 – 3 October 1965
• 26 October 1965 – 24 December 1965;
• 4 January 1966 – 2 March 1966;

• 14 September 1970 – 8 April 1971.

5.      Mr McDowall says he experienced four incidents while on operational service that caused his psychiatric conditions.  He described the incidents in his statement of 20 January 2004 (exhibit 2).  They were: 

(a)A collision between HMAS Duchess and the kumpit (a small boat) Mutiara on 22 January 1966 off the coast of Borneo (the collision incident);

(b)Observing what he believed were 200 incoming aircraft on his radar which later proved faulty (the radar incident);

(c)Hearing radio transmissions regarding a downed pilot in South Vietnam (the radio incident);

(d)Carrying out body searches of suspected insurgents/smugglers and Vietnamese forces (the body search incident).

The following excerpts are taken from the applicant’s statement.

a.) the collision incident

I recall that I was fast asleep when I was awoken by a horrible crashing and breaking noise.  I could hear screaming and yelling.  At the time the HMAS Duchess was operating in a…