North and Repatriation Commission

[2010] AATA 131

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 131

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2009/0714

VETERANS’ APPEALS DIVISION		)
Re		GEORGE NORTH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date19 February 2010   

PlaceArmidale

Decision The decision in relation to chronic obstructive airways disease is affirmed.
The decision in relation to depressive disorder is set aside and remitted to the Repatriation Commission for assessment, with effect from 16 December 2005.

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

Ms N Isenberg

Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – defence service – whether depressive disorder was defence-caused – consideration of Statement of Principles – category 2 stressor – “chronic pain” – the decision under review is set aside.

Veterans’ Entitlements Act 1986 (Cth) ss 70, 120(4), 120B, s 196B(3)

Statement of Principles – Instrument No 28/2008 concerning depressive disorder

Gorton v Repatriation Commission [2001] FCA 286

Lees v Repatriation Commission (2002) 125 FCR 331

Re Robertson and Repatriation Commission (1998) 50 ALD 668

Repatriation Commission v Smith (1987) 15 FCR 327

REASONS FOR DECISION

February 2010 Ms N Isenberg, Senior Member

1.      The decision under review is the determination dated 27 September 2006 made by the Repatriation Commission and affirmed by the Veterans’ Review Board (‘the VRB’) on 8 August 2008, that refused the claim by Mr George Ernest North in respect of depressive disorder on the ground that it is not related to service.  In that decision his claim in relation to chronic obstructive airways disease was also affirmed but that was not pursued before the Tribunal.  The decision in relation to chronic obstructive airways disease is formally affirmed.

2.      A hearing was held on 13 January 2010 at Armidale at which Mr North gave evidence and Dr Patrick Morris, a consultant psychiatrist who had examined Mr North on behalf of the Respondent, also gave evidence. 

3.      At the conclusion of Dr Morris’s evidence the Respondent conceded that Mr North suffers depressive disorder and that it was defence-caused.  I identified the date of effect as 16 December 2005 and remitted the matter to the Respondent for assessment of Mr North’s pension.

4. Because Mr North has heard nothing from the Respondent since that time he asks for formal reasons: s43(2A), Administrative Appeals Tribunal Act 1975 which I now provide.  

ISSUE BEFORE THE TRIBUNAL

5. The issue to be considered by the Tribunal was whether Mr North’s depressive disorder was “defence-caused” under ss 70(5) of the Veterans’ Entitlement Act 1986 (‘the Act’).

BACKGROUND

6. Mr North served as a member of the Royal Australian Air Force (‘the RAAF’) between 24 January 1978 and 23 January 1984. That service is defined under the Act as eligible defence service for the purpose of ss 70(5).

LEGISLATIVE BACKGROUND

7. Ss 70(1) of the Veterans’ Entitlement Act 1986 provides that, inter alia, where a member is incapacitated from a defence-caused injury, the Commonwealth is liable to pay pension by way of compensation to the member in accordance with that Act. By…