OLDACRES-DEAR And REPATRIATION COMMISSION - [2011] AATA 481

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 481
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2677

VETERANS' APPEALS DIVISION )

Re PHILIP OLDACRES-DEAR

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President S D Hotop
Date8 July 2011
PlacePerth

Decision
The Tribunal affirms the decision under review.

..........[sgd S D Hotop]........
Deputy President

CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant rendered defence service in Royal Australian Air Force (RAAF) from 1975 to 1984 and in Royal Australian Navy from 1985 to 1989 – applicant claimed Post Traumatic Stress Disorder (PTSD) related to RAAF service – applicant claimed PTSD defence-caused – applicant has not suffered PTSD – applicant has suffered Alcohol Abuse – Statement of Principles (SoP) – SoP does not uphold contention that Alcohol Abuse connected with defence service – Alcohol Abuse not defence-caused – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), s 5D(1) s70(5), s 120(4), s 120B(3), s 196B(3) and s 196B(14)
Statement of Principles concerning alcohol dependence and alcohol abuse No 2 of 2009

Gerzina v Repatriation Commission [2003] FMCA 490
Hill v Repatriation Commission [2001] FCA 1775
REASONS FOR DECISION

8 July 2011 Deputy President S D Hotop

Introduction
1.Philip Oldacres-Dear (“the applicant”) served in the Royal Australian Air Force (“RAAF”) from 7 January 1975 to 6 January 1984 and in the Royal Australian Navy (“RAN”) from 14 May 1985 to 13 March 1989. His RAAF service and RAN service constitute “defence service” for the purposes of Part IV of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”). He joined the Western Australia Police Service on 4 September 1989 and he has continued to be employed as a police officer from that date.
2.On 6 November 2008 the applicant made a claim for a disability pension under Part IV of the VE Act in respect of incapacity from various disabilities which he claimed were defence-caused, including “PTSD”, the signs and symptoms of which were described by him as “mood swings” and “sleep problems”.
3.On 5 March 2009 a delegate of the Repatriation Commission (“the respondent”) decided that the following physical conditions suffered by the applicant are related to his defence service:
· “lumbar spondylosis”, “osteoarthrosis affecting both knees”, “sensorineural hearing loss”, and “tinnitus”;

but that the following physical disabilities are not related to his defence service:
· “right hand deformity of PIP joints of ring and little fingers” and “osteoarthrosis of the left little finger”.

As regards the applicant’s claimed mental disability of “PTSD”, the delegate determined that the appropriate medical diagnoses were “alcohol abuse” and “personality disorder” and decided that neither of those disabilities was related to his defence service.
4.On 22 April 2010 the Veterans’ Review Board (“VRB”) decided that the applicant’s “right hand deformity of PIP joints of ring and little finger” is defence-caused, but affirmed the delegate’s decision of 5 March 2009 in respect of the other disabilities, including “alcohol abuse” and “personality disorder”.
5.On 28 June 2010 the applicant lodged with…

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.

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Details

AGLC: OLDACRES-DEAR And REPATRIATION COMMISSION [2011] AATA 481
Case: [2011] AATA 481
Decision Date: 8 July 2011

CaseChat Overview and Summary

The case involved the applicant, a former member of the Royal Australian Air Force and Royal Australian Navy, appealing against the Repatriation Commission's decision to deny his claim for a disability pension on the grounds of Post Traumatic Stress Disorder (PTSD). The Tribunal, presided over by Senior Member A.R.D. and Member J.A.H., was tasked with reviewing the Commission's decision. The applicant argued that his PTSD was a result of his military service, and further contended that his Alcohol Abuse was also connected to his service. The Commission had rejected these claims, leading to the applicant's appeal.

The legal issues before the Tribunal were whether the applicant's PTSD and Alcohol Abuse were defence-caused, and therefore eligible for a disability pension under the Veterans’ Entitlements Act 1986. The Tribunal examined the evidence presented by the applicant, including his medical records and personal accounts, against the criteria set out in the relevant Statement of Principles and previous case law. The Tribunal had to determine if the applicant's conditions met the statutory requirements for a pension, specifically if they were attributable to his service.

In its decision, the Tribunal found that the applicant did not suffer from PTSD, as claimed, and that his Alcohol Abuse was not defence-caused. The Tribunal relied on the Statement of Principles concerning alcohol dependence and abuse, which did not support the applicant's contention that his Alcohol Abuse was connected to his service. The Tribunal also referenced previous cases such as Gerzina v Repatriation Commission and Hill v Repatriation Commission to support its findings. As the applicant's claims did not meet the statutory criteria, the Tribunal affirmed the Commission's decision to deny the pension.

The final orders of the Tribunal were that the decision under review, which was the Commission's denial of the applicant's claim for a disability pension, was affirmed. The Tribunal found that the applicant did not suffer from PTSD or have Alcohol Abuse that was defence-caused, and therefore, he was not eligible for the pension. The decision highlighted the importance of meeting the statutory criteria for veterans' entitlements, and underscored the need for evidence to support claims of defence-caused conditions.

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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