Nicklin and Repatriation Commission - [2005] AATA 160

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 160
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/181
VETERANS' APPEALS DIVISION

Re: GARY DONALDSON NICKLIN
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       G.D. Friedman, Member
Date:             22 February 2005
Place:            Melbourne
Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
Member

VETERANS' AFFAIRS ‑ veterans’ entitlements - post traumatic stress disorder - anxiety disorder - hypertension - alcohol dependence or abuse - whether war-caused
Veterans' Entitlements Act 1986 ss 9, 119(1)(h), 120(1), 120(3), 120(4), 120A(3), 196B(3)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Meehan v Repatriation Commission (2001) 64 ALD 366
O’Neil v Repatriation Commission (2001) 34 AAR 290
Re Sharkey and Repatriation Commission (1988) 15 ALD 782
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581
Stoddart v Repatriation Commission (2003) 74 ALD 366
White v Repatriation Commission (2004) 39 AAR 67
Woodward and Another v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
22 February 2005  G.D. Friedman, Member
1.      This is an application by Gary Donaldson Nicklin (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 20 August 2003. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 31 July 2000 that psychological problems, hypertension and alcohol dependence or abuse suffered by the applicant were not war-caused.
2.      At the hearing of this matter on 25 November 2004, 31 January 2005 and 1 February 2005 Mr G. Chancellor of counsel represented the applicant and Mr G. Purcell of counsel represented the respondent.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T21), 6 exhibits (Exhibits A1‑A6) lodged by the applicant and 10 exhibits (Exhibits R1-R10) lodged by the respondent.
BACKGROUND
4.      The applicant was born on 9 March 1950 in Gosford, New South Wales. He left school after Year 10 and began working at a local service station. On 31 January 1968 he joined the Australian Army (the army) and completed his recruit training at Kapooka; after which he was posted to the Royal Australian Electrical and Mechanical Engineers, where he completed basic training. He was sent to Amberley, Queensland, where he qualified as an aircraft fitter. He served in Vietnam from 15 April 1970 to 14 April 1971, which is operational service for the purposes of the Veterans' Entitlements Act 1986 (the Act). He was discharged from the army on 30 January 1974.
5.      After leaving the army, the applicant moved with his wife and son to Albury, New South Wales, and worked for six months as an aircraft mechanic at Albury Airport. He then began working at a service station in Albury. In 1978 he purchased the Shell service station in Tallangatta, Victoria, which he operated until 2000, when his son took over the business.
6.      On 13 April 2000 the applicant made a claim to the Department of Veterans’ Affairs for disability pension for psychological…

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 Nicklin and Repatriation Commission

Details

AGLC: Nicklin and Repatriation Commission [2005] AATA 160
Case: [2005] AATA 160
Decision Date: 22 February 2005

CaseChat Overview and Summary

This case involved an application by Gary Donaldson Nicklin, the applicant, for review of a decision by the Veterans' Review Board (VRB) which affirmed a decision of a delegate of the Repatriation Commission (the respondent) that psychological problems, hypertension and alcohol dependence or abuse suffered by the applicant were not war-caused. The Tribunal had to decide whether the applicant's psychiatric condition, alcohol dependence or abuse and hypertension were war-caused. The Tribunal considered all the material presented to it and found that the applicant's evidence was inconsistent and unreliable. The Tribunal accepted the comprehensive reports from Mr Ducker about the incidents described by the applicant and found that, although the applicant may have been concerned by his perception of events, such a perception did not constitute a severe psychosocial stressor. The Tribunal also found that the applicant's experiences in those incidents, individually and collectively, fell within the category of idiosyncratic and personal perceptions of events which, judged objectively, did not fall within the adjectival clause. Therefore, the hypothesis connecting the applicant's conditions with the circumstances of the particular service rendered by him was not consistent with the template and was deemed not to be a reasonable hypothesis. The applicant did not satisfy the third step of Deledio in relation to anxiety disorder, alcohol dependence or alcohol abuse and hypertension. Consequently, the Tribunal affirmed the decision under review.

Orders