Midavaine and Repatriation Commission

Case [2008] AATA 545

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 545

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1815

VETERANS APPEALS DIVISION )
Re FRANKLIN MIDAVAINE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Ms N Isenberg Senior Member

Dr S H Toh Member

Date27 June 2008

PlaceSydney

Decision The decision under review is affirmed.

...................[sgd].................

Ms N Isenberg
  Presiding Member


CATCHWORDS

VETERANS’ ENTITLEMENTS – operational service – claim that Post Traumatic Stress Disorder with co-morbid Major Depression were war-caused – consideration of Statement of Principles relating to posttraumatic stress disorder and depressive disorder – essential element of the hypothesis not made out - decision under review is affirmed.

Veterans’ Entitlements Act 1986 (Cth) - sections 5D, 9, 13, 120, 120A, 196A and 196B

Statement of Principles – Instrument No 58 of 1998 concerning depressive disorder

Statement of Principles – Instrument No 27 of 2008 concerning depressive disorder

Statement of Principles – Instrument No 3 of 1999, as amended by Instrument No 54 of 1999, concerning posttraumatic stress disorder

Statement of Principles – Instrument No 5 of 2008 concerning posttraumatic stress disorder

Fogarty v Repatriation Commission (2003) 37 AAR 363

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Repatriation Commission v Cooke (1998) 90 FCR 307

Repatriation Commission v Budworth (2001) 116 FCR 200

Benjamin v Repatriation Commission (2001) 70 ALD 622

Gorton v Repatriation Commission (2001) 63 ALD 723

Drew v Repatriation Commission [2008] FCA 537

Repatriation Commission v Stoddart (2003) 134 FCR 392

Gerzina v Repatriation Commission [2004] FCAFC 96

Budworth and Repatriation Commission [2000] AATA 127

Delahunty v Repatriation Commission (2004) 38 AAR 511

Repatriation Commission v Warren (2007) 95 ALD 606

Repatriation Commission v Warren (2008) 101 ALD 222

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Gorton (2001) 65 ALD 609

Lees v Repatriation Commission (2002) FCR 331

Bull v Repatriation Commission (2001) 66 ALD 271

Hardman v Repatriation Commission (2004) 82 ALD 433

Elliott v Repatriation Commission (2002) 73 ALD 377

Repatriation Commission v Bey (1997) 79 FCR 364

Youngnickel v Repatriation Commission [2004] FCA 1691

Re Robertson and Repatriation Commission (1998) 50 ALD 668

RepatriationCommission v Cornelius [2002] FCA 750

Repatriation Commission v Hill (2002) 69 ALD 581

REASONS FOR DECISION

27 June 2008

  Ms N Isenberg Senior Member

Dr S H Toh Member

1.      The decision under review is the decision of the Repatriation Commission (“the respondent”) dated 16 June 2006 as affirmed by the Veterans’ Review Board (“the VRB”) on 16 March 2007 that refused the claim by Mr Midavaine (“the veteran”) that his Post Traumatic Stress Disorder (“PTSD”) was war-caused.

ISSUE BEFORE THE TRIBUNAL

2.      There was no dispute that Mr Midavaine suffers from Depressive Disorder. His case though was that his psychiatric condition meets the diagnostic criteria for both PTSD and Major Depression and should thus be described as PTSD with co-morbid Major Depression, and that it was caused by stressors experienced on operational service in Vietnam. The Respondent’s case was that the veteran suffers…

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AGLC
Midavaine and Repatriation Commission [2008] AATA 545
Case
[2008] AATA 545
Decision Date

CaseChat Overview and Summary

The case of Midavaine and the Repatriation Commission involved a veteran who sought compensation for Post Traumatic Stress Disorder (PTSD) with co-morbid Major Depression, which he claimed were caused by his operational service. The dispute was heard in the Federal Court of Australia. The primary focus of the litigation was whether the veteran's claims were substantiated under the Veterans' Entitlements Act 1986 (Cth), and if the relevant Statements of Principles concerning PTSD and depressive disorder applied to his situation.

The court was required to determine whether the veteran's PTSD and Major Depression were connected to his service and whether these conditions met the criteria set out in the Statements of Principles. Specifically, the court had to consider whether the veteran's evidence supported the claim that his conditions were war-caused and whether the essential elements of the relevant hypotheses were satisfied. The veteran argued that his PTSD and Major Depression were attributable to his service, while the Repatriation Commission contended that the veteran had not established the necessary causal link.

The Federal Court found that the essential element of the hypothesis concerning the veteran's PTSD and Major Depression was not made out. The court held that the veteran had not provided sufficient evidence to demonstrate that his conditions were caused by his operational service. The court affirmed the decision of the Repatriation Commission that the veteran's claims were not substantiated. In doing so, the court considered relevant case law and the applicable provisions of the Veterans' Entitlements Act 1986 (Cth).

The final order of the court was to affirm the decision under review, meaning that the Repatriation Commission's determination that the veteran's claims were not substantiated was upheld. The veteran's appeal was dismissed, and the compensation claim was denied.

Orders

Orders of the court

The decision under review is affirmed.

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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