Nicholls and Repatriation Commission - [2008] AATA 183

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION 2008 AATA 183

ADMINISTRATIVE APPEALS TRIBUNAL No 2007/3656

VETERANS' APPEALS DIVISION
Re		ROBERT NICHOLLS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr RG Kenny, Member

Date 4 March 2008
Place Brisbane

Decision

The Tribunal sets aside the decision under review and substitutes its decision that:
(i) in accordance with s 70 of the Veterans’ Entitlements Act 1986, depressive disorder and alcohol abuse are defence-caused conditions;
(ii) the applicant is entitled to receive a pension for incapacity associated with those conditions from and including 16 March 2006; and
(iii) the matter of assessment of that incapacity is remitted to the Repatriation Commission.

MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements - disability pension – defence service with Royal Australian Navy – application of Statements of Principles – appropriate diagnosis of psychiatric conditions ––depressive disorder and alcohol abuse diagnosed – conditions attributable to defence service – decision set aside – assessment remitted to Repatriation Commission.

Veterans’ Entitlements Act 1986 ss 5, 14, 68, 70, 120, 120B,198B

Repatriation Commission v Smith (1987) 15 FLR 327
Keeley v Repatriation Commission (2000) 60 ALD 401

Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission and Cornelius [2002] FCA 750

Lees v Repatriation Commission [2002] FCAFC 398 (2002) 125 FCR 331
Youngnickel v Repatriation Commission [2004] FCA 1691

REASONS FOR DECISION

4 March 2008

Mr RG Kenny, Member

Background

Robert Nicholls served in the Royal Australian Navy (RAN) from 23 August 1969 until 23 December 1994. On 19 August 2004, he lodged a claim with the Repatriation Commission, in accordance with s 14 of the Veterans’ Entitlements Act 1986 (the Act), for a disability pension for “anxiety” and “substance abuse”. He contended that these were related to his RAN service. On 2 March 2006, the Repatriation Commission determined that his claim was answered by diagnoses of post traumatic stress disorder, dysthymic disorder and alcohol dependence but also determined that those conditions were not related to his RAN service. The Veterans’ Review Board (the Board), on 18 May 2007, varied the diagnoses to panic disorder, major depressive disorder and alcohol abuse and affirmed the decision in relation to causation. Mr Nicholls now seeks review of the decision, as varied by the Board, by the Administrative Appeals Tribunal (the Tribunal).

Service and Standard of Proof

His relevant service with the RAN is a period of defence service which, in accordance with s 68 of the Act, commenced on 7 December 1972 and continued until his discharge.
The standard of proof for determining diagnostic matters and issues of causation for defence service is set out in s 120(4) of the Act which requires that such matters be determined to the Tribunal’s reasonable satisfaction. This imports the civil standard of proof so that matters must be determined on the balance the probabilities[1]. The application of that provision is affected by the terms of s 120B of the Act. This provides that, where a relevant Statement of Principles has been published…

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 Nicholls and Repatriation Commission

Details

AGLC: Nicholls and Repatriation Commission [2008] AATA 183
Case: [2008] AATA 183
Decision Date: 4 March 2008

CaseChat Overview and Summary

The case before the Court involved the applicant, Mr. Nicholls, and the Repatriation Commission, with the central dispute being the entitlement of Mr. Nicholls to a disability pension based on his service with the Royal Australian Navy. The application of the relevant Statements of Principles concerning psychiatric conditions was also in question, specifically whether his depressive disorder and alcohol abuse were attributable to his defence service. This matter was heard in the Federal Court of Australia.

The primary legal issues before the court were whether the depressive disorder and alcohol abuse suffered by Mr. Nicholls were indeed defence-caused conditions under the Veterans’ Entitlements Act 1986. The court also needed to determine if the Repatriation Commission's decision to deny the pension was legally sound. This involved examining the appropriate diagnosis of psychiatric conditions as well as the application of relevant legal principles and precedents.

The Federal Court found that the Repatriation Commission had erred in its assessment of Mr. Nicholls' condition. The Court held that both depressive disorder and alcohol abuse were attributable to his defence service, and therefore constituted defence-caused conditions. This decision was influenced by the interpretation of relevant sections of the Veterans’ Entitlements Act 1986 and the application of judicial precedents such as Re Robertson and Repatriation Commission and Lees v Repatriation Commission. Given these findings, the Court set aside the Commission's decision and remitted the matter back to the Repatriation Commission for reassessment of the pension.

The final orders of the Court mandated that the Repatriation Commission recognise the depressive disorder and alcohol abuse as defence-caused conditions and that Mr. Nicholls was entitled to receive a pension for incapacity from a specified date. The Court also ordered that the reassessment of the pension be conducted by the Repatriation Commission, ensuring that the application of the law and appropriate medical evidence were properly considered.

Orders

Orders of the court

The Tribunal sets aside the decision under review and substitutes its decision that:

(i) in accordance with s 70 of the Veterans’ Entitlements Act 1986, depressive disorder and alcohol abuse are defence-caused conditions;

(ii) the applicant is entitled to receive a pension for incapacity associated with those conditions from and including 16 March 2006; and

(iii) the matter of assessment of that incapacity is remitted to the Repatriation Commission.

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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