McVeigh and Repatriation Commission - [2006] AATA 330

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 330
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/108

VETERANS' APPEALS DIVISION )

Re NOEL WAIN McVEIGH

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)
Date7 April 2006
PlaceAdelaide

Decision
The Tribunal affirms the decision under review.

..............................................
J G SHORT
(Member)

CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – operational service – claim that post-traumatic stress disorder was war-caused – consideration of statements of principles – experiencing mortar shells fired from HMAS Parramatta – decision affirmed
Veterans’ Entitlements Act 1986 ss 6, 9, 20, 120, 120A, 196
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 2
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
Stoddart v Repatriation Commission (2003) 74 ALD 366
Statement of Principles Instrument No 3 of 1999
Statement of Principles Instrument No 54 of 1999
REASONS FOR DECISION

7 April 2006   Mr J G Short (Member)

1.      Mr Noel McVeigh served in the Royal Australian Navy (the Navy) from 9 February 1962 until 31 December 1971. His operational service, which was also his only period of eligible service, was between 26 May 1964 and 26 June 1964 when he served on HMAS Parramatta (Parramatta) in the Far East Strategic Reserve.
2.      On 1 April 2004 Mr McVeigh lodged a claim for acceptance of emotional behaviour (later diagnosed as anxiety disorder), hearing loss, tinnitus, conjunctivitis, dermatitis, and urticated eczema on the basis that these conditions were war-caused. On 26 July 2004 the Repatriation Commission (the Commission), amongst other things, refused the claim as it related to contact dermatitis and other eczema and anxiety disorder on the basis that these conditions were not service related. On 14 March 2005 the Veterans’ Review Board (the VRB) noted Mr McVeigh’s withdrawal of the claim as it related to conjunctivitis and varied the diagnosis of the other claimed conditions to post-traumatic stress disorder (PTSD) and urticated eczema. The VRB affirmed the Commission’s decision to refuse acceptance of these conditions as war-caused. On 28 April 2005 Mr McVeigh lodged an appeal to this Tribunal. At the outset of the hearing Mr McVeigh withdrew the appeal as it related to urticated eczema and proceeded only in relation to the claim for PTSD.
issue before the tribunal
3.      The issue for determination is whether Mr McVeigh’s PTSD is war-caused for the purposes of the Veterans’ Entitlements Act 1986 (the VE Act). Both parties accept this diagnosis of Mr McVeigh’s condition.
4. It is common ground that if Mr McVeigh is successful in his claim, the earliest date of affect, pursuant to s 20 of the VE Act, would be 1 January 2004.
background
5.      Mr McVeigh was born on 30 November 1944. He joined the Navy on 9 February 1962 and served until 31 December 1971. His period of operational service was from 26 May 1964 until 26 June 1964.
6.      Mr McVeigh…

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 McVeigh and Repatriation Commission

Details

AGLC: McVeigh and Repatriation Commission [2006] AATA 330
Case: [2006] AATA 330
Decision Date: 7 April 2006

CaseChat Overview and Summary

McVeigh, a veteran, contested the Repatriation Commission's refusal to acknowledge his claim for post-traumatic stress disorder (PTSD) as war-caused, taking the matter to the Federal Court of Australia. The central dispute revolved around whether McVeigh's PTSD was attributable to his operational service, specifically the mortar shelling incident involving HMAS Parramatta. The court was tasked with interpreting relevant legislation and applying the Statements of Principles to determine if McVeigh's PTSD met the criteria for war-caused conditions.

The primary legal issues centred on interpreting the Veterans’ Entitlements Act 1986 and applying relevant Statements of Principles to McVeigh's case. The court needed to assess whether the trauma experienced during the mortar shelling incident constituted an operational service event that could lead to war-caused PTSD. This involved examining the definitions and conditions outlined in the legislation and comparing them with the specific circumstances of McVeigh's service and the incident in question.

The court held that the evidence presented did not sufficiently establish that the mortar shelling incident was the direct cause of McVeigh's PTSD. The Tribunal found that while McVeigh experienced a traumatic event, there was no clear and compelling evidence linking this specific incident to his current mental health condition as required by the applicable legislation and principles. The Tribunal affirmed the Commission's decision, finding that McVeigh's claim did not meet the statutory criteria for war-caused PTSD. Consequently, the Tribunal upheld the original decision denying McVeigh's entitlement claim.

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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