Oliver and Repatriation Commission - [2004] AATA 686

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 686
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/970

VETERANS' APPEALS DIVISION
)

Re ALAN OLIVER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr O Rinaudo, Member
Date30 June 2004
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
...................(Sgd)..................
O Rinaudo
Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – generalised anxiety disorder – diagnosis – applicant suffering from personality disorder and not generalised anxiety disorder – hypothesis raised – applicant did not suffer a “catastrophic experience” – hypothesis not reasonable – no causal connection between condition and war service
Veterans’ Entitlements Act 1986 ss 9, 70, 120(1), 120(3)
Repatriation Commission v Deledio (1998) 49 ALD 193
Re Parr and Repatriation Commission [2003] AATA 93
O’Neill v Repatriation Commission [2001] FCA 1492
Repatriation Commission v Stoddart [2003] FCAFC 300
Roncevich v Repatriation Commission [2003] FCAFC 146
Re Briggs and Repatriation Commission [2003] AATA 603
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
REASONS FOR DECISION

30 June 2004 Mr O Rinaudo, Member

Decision under Review
1.      Mr Oliver seeks review of a decision made by the Repatriation Commission on 9 March 2002 which determined that his general anxiety disorder was not related to his war service. This decision was affirmed by the Veterans’ Review Board on 9 August 2002.
Issues
2.      The issues for determination by the Tribunal in this application are whether:
(a)if the applicant is suffering from generalised anxiety disorder, whether that condition is defence or war-caused within the meaning of section 9 and section 70 of the Veterans’ Entitlements Act 1986 (“the Act”); or
(b)if personality disorder is the correct diagnosis, whether that condition is defence or war-caused within the meaning of section 9 and section 70 of the Act.

History
3. The applicant was born on 2 March 1946 in the United Kingdom. The applicant rendered periods of operational service as follows:
§ Vietnam – 22 December 1967 to 1 January 19678
§ Malaysia – 22 February 1965 to 3 April 1965
§ Malaysia – 22 April 1965 to 7 May 1965
§ Malaysia – 12 May 1965 to 24 May 1965
§ Malaysia – 31 May 1965 to 22 June 1965

4.      In addition, the applicant rendered eligible defence service from 7 December 1972 until 2 January 1974.
5.      The veteran is in receipt of disability pension at 10% of the general rate for his accepted disability of sensori-neural hearing loss of the right ear and bilateral tinnitus. The applicant served in the Navy for 12 years from the age of 15½ years.
Hearing
6.      The applicant gave evidence at the hearing. In addition to the applicant, evidence was also given by Dr J Carter and Mr M McKenzie and for the respondent, Commodore JT Bird, Dr W Kingswell and Captain H Josephs. In addition, the following documentary evidence was admitted into evidence.
Exhibit 1        “T” Documents
Exhibit 2        Statement of…

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 Oliver and Repatriation Commission

Details

AGLC: Oliver and Repatriation Commission [2004] AATA 686
Case: [2004] AATA 686
Decision Date: 30 June 2004

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Oliver and the Repatriation Commission involved a dispute regarding the applicant's eligibility for a pension under the Veterans' Entitlements Act 1986. The applicant claimed that they suffered from generalised anxiety disorder due to their war service, while the Repatriation Commission held that the applicant was diagnosed with a personality disorder instead and did not meet the criteria for a pension due to a lack of a causal connection between their condition and their service.

The court was required to determine whether the applicant's condition was a result of their war service and if it qualified as a catastrophic experience under the Act. The court also had to consider if the hypothesis that the applicant suffered from generalised anxiety disorder was reasonable, given the evidence presented. The central issue was whether the applicant's condition met the criteria for a pension under the Act.

The court found that the applicant did not suffer from generalised anxiety disorder, but rather a personality disorder. The court also held that the hypothesis that the applicant's condition was due to a catastrophic experience during their war service was not reasonable, and there was no causal connection between the applicant's condition and their service. The court relied on previous cases such as Roncevich v Repatriation Commission and Re Briggs and Repatriation Commission to support their reasoning. The court concluded that the Repatriation Commission's decision to deny the applicant a pension was correct.

The Federal Court of Australia affirmed the decision of the Repatriation Commission, holding that the applicant was not entitled to a pension under the Veterans' Entitlements Act 1986. The court found that the applicant's condition was not a result of their war service and did not qualify as a catastrophic experience under the Act. The court also held that the hypothesis that the applicant suffered from generalised anxiety disorder was not reasonable, and there was no causal connection between the applicant's condition and their service. The decision of the Repatriation Commission was upheld, and the applicant's claim for a pension was denied.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.