McKlaren and Repatriation Commission - [2005] AATA 448

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 448
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/421

VETERANS' APPEALS DIVISION
)

Re ROBERT JOHN McKLAREN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms M J Carstairs, Member
Date19 May 2005
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s post traumatic stress disorder, depressive disorder and alcohol abuse (in partial remission) are war-caused with effect from 24 March 2003. As agreed between the parties the question of assessment of rate of pension above 100% of the General Rate is now remitted to the respondent for assessment.

.................[Sgd]........................
M J Carstairs
Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – operational service – PTSD, depressive disorder, alcohol abuse – reasonable hypotheses and application of SoPs
Veterans’ Entitlements Act 1986 ss 9, 120, 120A, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Stoddart v Repatriation Commission [2003] FCA 334
Repatriation Commission v Stoddart [2003] FCAFC 300
White v Repatriation Commission [2004] FCA 633
Delahunty v Repatriation Commission [2004] FCA 309
REASONS FOR DECISION

19 May 2005 Ms M J Carstairs, Member

1.      This is an application by Robert John McKlaren (the applicant) for review of that part of a decision made by a delegate of the Repatriation Commission (the respondent) and affirmed by the Veterans’ Review Board (the VRB) that refused the claims for post traumatic stress disorder (PTSD), depressive disorder and alcohol dependence on the ground that these conditions were not war-caused.
2.      At the hearing the applicant was represented by Mr A Harding instructed by Gilshenan and Luton, Solicitors. The respondent was represented by its advocate Mr B Williams.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 as well as exhibits marked A1 – A5 for the applicant and R1 – R2 for the respondent.
BACKGROUND
4.      The applicant is aged 60. He left school at the age of 14 to work on the New South Wales Railway. While working on the railways he joined the Citizen Military Forces (CMF) and obtained several heavy vehicle licences during that service. He joined the Royal Australian Air Force (RAAF) in November 1964, at the age of 20. He served in Vietnam from 26 April 1967 until 12 August 1967. While in Vietnam his duties utilised the heavy vehicle licences that he had obtained in the CMF and he was engaged as a truck and stores driver including driving troops daily to Vung Tau for meals.
5.      His enlistment had been for a term of six years (T4, p1) and he was discharged from the RAAF with the rank of corporal in 1970 at the age of 26.
6.      On 26 June 2003 the applicant claimed for a number of disorders including PTSD, depressive disorder and alcohol dependence. These claims were rejected by the respondent’s delegate and by the VRB, though in the course of review his rate of pension was…

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 McKlaren and Repatriation Commission

Details

AGLC: McKlaren and Repatriation Commission [2005] AATA 448
Case: [2005] AATA 448
Decision Date: 19 May 2005

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal involved an applicant seeking a review of a decision by the Repatriation Commission concerning their eligibility for war-caused post-traumatic stress disorder, depressive disorder, and alcohol abuse. The Tribunal was tasked with determining whether the Commission had correctly applied the relevant legislative provisions in deciding that these conditions were not war-caused. The Tribunal was required to consider whether the Commission’s decision was legally sound, and whether the evidence supported the conclusion that the applicant's conditions were not caused by their service.

The key legal issues before the Tribunal included the proper application of the "reasonable hypotheses" test under the Veterans’ Entitlements Act 1986, and whether the Commission had correctly exercised its discretion in applying the Secretary of the Department of Veterans’ Affairs’ Policy (SoPs). The Tribunal needed to determine whether the Commission had made an error in failing to consider the applicant's evidence and whether the Commission had appropriately weighed the evidence in light of the statutory criteria.

In its decision, the Tribunal found that the Commission had erred in its application of the "reasonable hypotheses" test and had failed to adequately consider the applicant's evidence. The Tribunal held that the evidence supported the conclusion that the applicant's conditions were war-caused, and that the Commission had not correctly applied the statutory provisions in reaching its decision. The Tribunal emphasised the importance of the Commission considering all relevant evidence and applying the statutory criteria appropriately. The Tribunal concluded that the Commission's decision was legally flawed and set it aside, substituting its own decision that the applicant's conditions were war-caused from 24 March 2003.

The Tribunal's final orders were that the decision under review be set aside and replaced with a decision recognising the applicant's conditions as war-caused from the specified date. The matter of assessing the rate of pension above 100% of the General Rate was remitted to the Commission for further assessment in light of the Tribunal's decision.

Orders

Orders of the court

The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s post traumatic stress disorder, depressive disorder and alcohol abuse (in partial remission) are war-caused with effect from 24 March 2003. As agreed between the parties the question of assessment of rate of pension above 100% of the General Rate is now remitted to the respondent for assessment.

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.

VETERANS' APPEALS DIVISION		)
Re		ROBERT JOHN McKLAREN