Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1150
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/474
VETERANS' APPEALS DIVISION ) Re DAVID MITCHELL Applicant
And
REPATRIATION COMMISSSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis and Dr E T Eriksen, Member Date4 November 2004
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and in place of that decision:
(a) determines that the applicant's post traumatic stress disorder and neurodermatitis are war-caused conditions; and
(b) remits the matter to the respondent to determine in accordance with the Tribunal’s reasons for decision, whether the conditions of hypertension and hypertriglyceridaemia are war-caused.
D.G. Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS' ENTITLEMENTS - operational service - whether claimed conditions are war-caused - post traumatic stress disorder - hypertension - neurodermatitis - hypertriglyceridaemia - two conditions subject to Statements of Principles - application of Deledio - two conditions not the subject of Statements of Principles - application of Byrnes - decision under review on PTSD and neurodermatitis set aside – circumstances in which AAT should remit matter to original decision-makers for reconsideration - conditions of hypertension and hypertriglyceridaemia remitted for reconsideration.
Veterans' Entitlements Act 1986 (Cth) sections 9, 120(1), 120(3), 120A(3), 120A(4) and 196
Administrative Appeals Tribunal Act 1975 s 42D(1)
Re Fenner and Repatriation Commission [2002] AATA 368
Repatriation Commission v Deledio (1998) 83 FCR 82
Re A’Bell and Repatriation Commission (1999) 58 ALD 721
Woodward v Repatriation Commission (2003) 131 FCR 473
Repatriation Commission v Stoddart (2003) 77 ALD 67
Stoddart v Repatriation Commission (2003) 74 ALD 366
Delahunty v Repatriation Commission (2004) 38 AAR 511
McKenna v Repatriation Commission (1999) 86 FCR 144
Spencer v Repatriation Commission (2002) 118 FCR 453
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Hancock (2003) 37 AAR 383
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Re Martin and Commonwealth (1983) 5 ALD 277
Re Lavery and Registrar, Supreme Court of Queensland and Others (No.2) (1996) 23 AAR 52
REASONS FOR DECISION
4 November 2004 Deputy President D G Jarvis and Dr E T Eriksen, Member 1. The applicant in this matter, Mr David Mitchell, was engaged in operational service on board the HMAS Derwent from 4 to 8 November 1971. On 2 November 2000 Mr Mitchell lodged a claim for a pension in respect of conditions that were subsequently diagnosed by the Repatriation Commission (the "Commission") as neurodermatitis, post traumatic stress disorder (“PTSD”), hyperlipidaemia, bilateral sensorineural hearing loss, hypertension and heart disease. In a decision dated 3 July 2001 the Commission accepted bilateral sensorineural hearing loss, found no incapacity in respect of the heart disease claim and rejected the claim for the remaining conditions. The applicant applied to the Veterans’ Review Board (the “VRB”) for a review of the decision to reject hypertension, neurodermatitis, PTSD, hyperlipidaemia and heart disease. The heart disease claim was subsequently withdrawn and, on 4 November 2002,…
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- AGLC
- Mitchell and Repatriation Commission [2004] AATA 1150
- Case
- [2004] AATA 1150
- Decision Date
CaseChat Overview and Summary
The AAT found that the Repatriation Commission erred in its assessment of the applicant's post traumatic stress disorder and neurodermatitis, determining that these conditions were indeed war-caused. For the conditions of hypertension and hypertriglyceridaemia, which were not subject to Statements of Principles, the AAT considered the approach in Byrnes. The AAT held that these conditions should be remitted to the Repatriation Commission for reconsideration. The AAT's decision was guided by the principle that if new evidence or arguments were presented, the original decision-makers should reconsider the matter. This approach ensures that all relevant factors are appropriately considered in the determination of war-caused conditions.
The AAT set aside the decision under review in part, determining that the applicant's post traumatic stress disorder and neurodermatitis were war-caused. The AAT also remitted the matter to the Repatriation Commission for reconsideration of the conditions of hypertension and hypertriglyceridaemia. The decision clarified the circumstances in which the AAT should intervene and the criteria for remitting matters back to the original decision-makers. The final orders reflect the AAT's findings and provide a clear path forward for the Repatriation Commission in reassessing the remitted conditions.
Orders
Orders of the court
The Tribunal sets aside the decision under review and in place of that decision:
(a) determines that the applicant's post traumatic stress disorder and neurodermatitis are war-caused conditions; and
(b) remits the matter to the respondent to determine in accordance with the Tribunal’s reasons for decision, whether the conditions of hypertension and hypertriglyceridaemia are war-caused.
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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