Palmer and Repatriation Commission - [2004] AATA 1076

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1076
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/638

VETERANS' APPEALS DIVISION
)

Re GREGORY PALMER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms MJ Carstairs, Member
Date15 October 2004
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

...................[Sgd]...........................
MJ Carstairs
Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – depressive disorder – whether disease connected to operational service – whether veteran suffered a severe psychosocial stressor – definition of “severe psychosocial stressor” – requirement that there be an “identifiable occurrence” – applicant cannot point to an identifiable occurrence – no reasonable hypothesis - does not fit within the template of the SoP – decision affirmed
Veterans' Entitlements Act 1986 ss 9, 120, 120A
Stoddart v Repatriation Commission [2003] FCA 334
Repatriation Commission v Stoddart [2003] FCAFC 300
White v Repatriation Commission [2004] FCA 633
Repatriation Commission v Hill [2002] FCAFC 192
Re Stonehouse and Repatriation Commission [2004] AATA 707
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION

15 October 2004 Ms MJ Carstairs, Member

1.      This is an application by Gregory Palmer (the applicant) for review of a decision made by the Veterans’ Review Board (the VRB) on 15 May 2003 affirming a decision of the Repatriation Commission (the respondent), to reject the applicant’s claim that his depressive disorder was related to his service in the Royal Australian Navy (the RAN) .
2.      At the hearing the applicant was represented by Ms B Carter-Nicoll instructed by Sciaccas Lawyers. Mr G Kelly, a departmental advocate, represented the respondent.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (number T1-T6) as well as exhibits marked A1-A5 for the applicant and R1-R4 for the respondent.
BACKGROUND
4.      The applicant is aged fifty-nine. His service with the RAN, from 1 July 1963 until 1 July 1984, included the following periods of operational service under the Veterans’ Entitlements Act 1986 (the Act):
§with the Far East Strategic Reserve (FESR) from 27 October 1964 to 16 May 1965 and from 4 January 1966 to 22 August 1966 (HMAS Derwent)
§in South Vietnam from 12 September 1969 to 3 May 1971 (HMAS Vendetta) (T4).

5.      The applicant operated the searchlight to illuminate suspect boats prior to boarding by naval servicemen when HMAS Derwent, was engaged in patrolling the waters in the Malacca and Singapore Straits.
6.      The applicant also has eligible defence service from 7 December 1972 until his discharge from the RAN, which attracts a different standard of proof from that which applies to his operational service. He does not rely on his period of eligible defence service in this application.
7.      The applicant has had the medical conditions of internal derangement of the right knee, left acromio clavicular joint subluxation and bilateral tinnitus accepted as attributable to his service. The respondent also has accepted depressive disorder for treatment purposes only under certain other provisions of the…

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 Palmer and Repatriation Commission

Details

AGLC: Palmer and Repatriation Commission [2004] AATA 1076
Case: [2004] AATA 1076
Decision Date: 15 October 2004

CaseChat Overview and Summary

The case before the Administrative Appeals Tribunal involved Mr. Palmer, a veteran, and the Repatriation Commission, where the central issue was whether Mr. Palmer was entitled to a pension for his depressive disorder, which he claimed was connected to his operational service. The Tribunal had to determine if Mr. Palmer's condition arose from a severe psychosocial stressor as defined by the Veterans' Entitlements Act 1986. The legal issue was whether Mr. Palmer's depressive disorder could be linked to his service and if it met the statutory definition of a severe psychosocial stressor, particularly the requirement of an identifiable occurrence.

The Tribunal examined the statutory provisions and relevant case law to assess if Mr. Palmer's condition met the criteria for a severe psychosocial stressor. It considered whether an identifiable occurrence was present and if Mr. Palmer's condition fit within the template provided in the Secretary of the Department of Veterans' Affairs' Statement of Principles (SoP). The Tribunal found that Mr. Palmer could not point to a specific identifiable occurrence and that no reasonable hypothesis could be formed to connect his depressive disorder to an identifiable occurrence as required by the SoP.

Based on the evidence and the statutory interpretation, the Tribunal concluded that Mr. Palmer's depressive disorder did not meet the definition of a severe psychosocial stressor under the Act. Consequently, the Tribunal affirmed the decision of the Repatriation Commission that Mr. Palmer was not entitled to the pension for his condition. The Tribunal's decision was grounded in the statutory requirements and the lack of evidence connecting Mr. Palmer's disorder to a specific operational stressor.

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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