Parsons and Repatriation Commission - [2005] AATA 1094

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 1094
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/965

VETERANS' APPEALS DIVISION
)

Re LESLIE PARSONS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr RG Kenny, Member
Date4 November 2005
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

...........[Sgd].............
RG Kenny
Member

CATCHWORDS
VETERANS’ APPEALS – disability pension – operational service with Australian Army – diagnosis of generalised anxiety disorder and alcohol dependence – application of Statements of Principles – no reasonable hypothesis of relevant relationship to service for alcohol dependence or generalised anxiety disorder – decision affirmed.
Veterans’ Entitlements Act 1986 s 6C, 7, 9, 14, 120, 120A
Fogarty v Repatriation Commission (2003) 37 AAR 363
Woodward v Repatriation Commission (2003) 37 AAR 424
Repatriation Commission v Deledio (1998) 83 FCR 82
White v Repatriation Commission [2004] 39 AAR 67
Stonehouse and Repatriation Commission [2004] AATA 707
Repatriation Commission v Stoddart [2003] 38 AAR 176
REASONS FOR DECISION

4 November 2005 Mr RG Kenny, Member

Background
1. Leslie Parsons (the applicant) served in the Australian Army from 20 March 1967 until 19 March 1970 and this included a period in South Vietnam. He now contends that he suffers from psychiatric problems which are related to events that occurred during that time. On 20 November 2002, he lodged a claim, in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act), for acceptance by the Repatriation Commission (the respondent) of “generalised anxiety disorder” and “alcohol dependence” as being the relevant psychiatric conditions from which he suffers. On 1 August 2003, the respondent determined that Mr Parsons suffered from each of these conditions but determined that they were not related to his service. That decision was affirmed by the Veterans’ Review Board on 8 April 2004 and, on 21 December 2004, Mr Parsons sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
2.      Mr Parsons attended the hearing and was represented by Mr CR Smith of Counsel. The respondent was represented by Mr J Kelly.
Mr Parson’s Service
3.      When aged 21 years, Mr Parsons enlisted in the infantry and underwent basic infantry training. He served with an infantry regiment in Brisbane before he volunteered to join the catering corps. He then undertook a basic cook’s course in Sydney from January 1968 after which he served for three months in Townsville. Before going to South Vietnam, he completed a jungle training course at Canungra. In South Vietnam, he served as a cook with 17 Construction Squadron and was based at Vung Tau and at Nui Dat on various occasions.
4. It is common ground that Mr Parsons served with the Australian Army, as noted above, and that this included a period of eligible war service in the form of operational service, as provided for in sections 7 and 6C, respectively, of the Act, from 10 February 1969 until 11 February 1970.
Relationship of Conditions to Service
5.      Paragraph 9(1)(b) of the Act…

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 Parsons and Repatriation Commission

Details

AGLC: Parsons and Repatriation Commission [2005] AATA 1094
Case: [2005] AATA 1094
Decision Date: 4 November 2005

CaseChat Overview and Summary

Parsons, a veteran, appealed against the Repatriation Commission’s refusal to award him a disability pension on the basis of a diagnosis of generalised anxiety disorder and alcohol dependence, related to his operational service with the Australian Army. The Administrative Appeals Tribunal (AAT) was tasked with determining whether the Commission’s decision was legally sound.

The primary legal issues before the AAT were whether there existed a reasonable hypothesis of a relevant connection between the claimed conditions and the veteran’s service, as required under the Veterans' Entitlements Act 1986, and if the Tribunal had the authority to consider evidence not previously presented to the Commission. The AAT examined the relevant legislative provisions and relevant case law, including Fogarty v Repatriation Commission, Woodward v Repatriation Commission, Repatriation Commission v Deledio, White v Repatriation Commission, Stonehouse and Repatriation Commission, and Repatriation Commission v Stoddart.

The Tribunal held that the evidence did not establish a reasonable hypothesis of a relevant relationship between the veteran’s service and his diagnosed conditions. The Tribunal found that the veteran's claims lacked sufficient evidence to support a causal link between his military service and the diagnosed conditions. The AAT also noted that it could not consider new evidence unless there were exceptional circumstances, which were not present in this case. Consequently, the Tribunal affirmed the Commission’s decision, concluding that the veteran’s appeal was not well-founded.

The Tribunal’s decision was final, and the veteran’s application for a disability pension was dismissed. The Tribunal’s affirmation of the Commission’s decision meant that the veteran would not receive the pension, and the matter was concluded without further appeal.

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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