Nelli and Repatriation Commission - [2008] AATA 770

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 770
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1173

VETERANS' APPEALS DIVISION )

Re DENNIS RICHARD NELLI

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member
Brigadier A Warner, Member
Dr D Weerasooriya, Member
Date28 August 2008
PlacePerth

Decision
The Tribunal affirms the decision under review.

..(sgd) Mr A Sweidan..............
Senior Member

CATCHWORDS
Veterans' Affairs - whether applicant's conditions of post traumatic stress disorder, anxiety disorder and alcohol abuse are war-caused - determination that not war-caused - decision under review affirmed
LEGISLATION
Veterans' Entitlement Act 1986
Safety Rehabilitation and Compensation Act 1988
CASES
Repatriation Commission v Budworth [2001] FCA 1421
Lees v Repatriation Commission (2002) 125 FCR 331
Stoddart v Repatriation Commission (2003) 197 ALR 283
Repatriation Commission v Stoddart (2003) 38 AAR 176)
Woodward v Repatriation Commission (2003) 200 ALR 332
Delahunty v Repatriation Commission (2004) FCA 309
REASONS FOR DECISION

28 August 2008 Mr A Sweidan, Senior Member
Brigadier A Warner, Member
Dr D Weerasooriya, Member

1. History and Background to Application
1.1On 8 July 2004, the applicant submitted claims for acceptance as war-caused of conditions described as generalised anxiety disorder and alcohol abuse.
1.2On 19 May 2005, a delegate of the Repatriation Commission determined that the applicant’s anxiety disorder is not war-caused.
1.3On 21 July 2005, a delegate of the Repatriation Commission determined that the applicant’s alcohol abuse is not war-caused.
1.4On 22 September 2005, the applicant applied for a review of the delegate’s decisions of 19 May 2005 and 21 July 2005 by the Veterans’ Review Board (the Board or VRB).
1.5On 26 February 2007, the Board varied the delegate’s decision of 19 May 2005 by adding a diagnosis of post traumatic stress disorder and otherwise affirmed both that decision and the delegate’s decision of 21 July 2005. The applicant now seeks a review of that decision.

2.        Issues
2.1What, on the material before it, the Tribunal is reasonably satisfied are the appropriate diagnoses of the applicant’s claimed conditions.
2.2Whether, on the material before it, the Tribunal may form the opinion that the material raises a reasonable hypothesis that the claimed conditions:
(a)      arose out of or are attributable to; or
(b)      were contributed to in a material degree or aggravated
by the particular circumstances of the applicant’s operational service.

3. Relevant documents and Evidence
3.1The Tribunal had before it the Section 37 statement and T documents number T1/1 to T29/213. The Tribunal also heard evidence from Dr John Kemp who is the applicant’s treating psychiatrist and who had previously provided evidence to the VRB. The applicant was present but did not give evidence.

4. Facts not in Dispute
4.1 The applicant was born on 21 November 1938.
4.2The applicant served in the Royal Australian Navy (RAN) from 1957 to 1963. He rendered operational service as follows:
Far East Strategic Reserve (HMAS Melbourne)
7 April 1060 to 28 April 1960
6 May 1960 to 20 May 1960
6 June 1960 to…

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 Nelli and Repatriation Commission

Details

AGLC: Nelli and Repatriation Commission [2008] AATA 770
Case: [2008] AATA 770
Decision Date: 28 August 2008

CaseChat Overview and Summary

The case of Nelli against the Repatriation Commission arose from a dispute concerning the causation of the applicant's post-traumatic stress disorder, anxiety disorder, and alcohol abuse. The applicant, Nelli, sought to have these conditions recognised as war-caused, which would entitle him to certain benefits under the relevant legislation. The dispute was heard and determined by the Administrative Appeals Tribunal.

The legal issues before the Tribunal involved the interpretation of statutory provisions concerning the recognition of war-caused conditions and the relevant evidentiary standards. Specifically, the Tribunal had to assess whether the evidence presented by Nelli was sufficient to establish that his conditions were caused by his service in the military. The Tribunal needed to determine the weight to be given to the applicant's evidence, the medical reports, and the other material before it.

In delivering its decision, the Tribunal carefully examined the evidence and found that while Nelli's service had involved exposure to stressful and traumatic events, there was insufficient evidence to establish that his conditions were directly caused by those events. The Tribunal noted that while Nelli had experienced difficulties, these were not uniquely attributable to his military service. The Tribunal concluded that the decision of the Commission not to recognise the conditions as war-caused was supported by the evidence. Therefore, the Tribunal affirmed the decision under review, finding that the Commission's determination was correct.

The Tribunal's decision was final, with no further orders necessary as the decision under review was affirmed.

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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VETERANS' APPEALS DIVISION		)
Re		DENNIS RICHARD NELLI