PETER ALLEN and REPATRIATION COMMISSION - [2009] AATA 968

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 968
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1363

VETERANS’ APPEALS DIVISION )

Re PETER ALLEN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms Regina Perton, Member
Date18 December 2009
PlaceMelbourne

Decision
The Tribunal affirms the decision under review.

(sgd) Regina Perton
Member

VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ alcohol dependence - whether war-caused - whether serious default or wilful act – decision affirmed.
Veterans' Entitlements Act 1986 ss 9(1), 9(3), 120(1)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission vGorton (2001) 110 FCR 321
Stoddart v Repatriation Commission (2003) 197 ALR 283
REASONS FOR DECISION

18 December 2009 Ms Regina Perton, Member

1.       Peter Allen served in the Australian Army (the army) from 1 February 1967 to 31 January 1969. His service included a period in Vietnam from 27 November 1967 to 26 November 1968, which constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).
2.       Mr Allen suffers from a number of medical conditions, which the respondent has accepted as being war-caused. Accordingly, he has been receiving a disability pension at 80 per cent of the general rate. On 17 February 2006 Mr Allen lodged a claim for alcohol dependence to be accepted as a war-caused condition. His claim was rejected by the Repatriation Commission (the Commission) on 2 August 2006 Mr Allen sought a review of the decision by the Veterans’ Review Board (VRB). On 11 December 2007 the VRB affirmed the decision. On 1 April 2008 Mr Allen applied to the Tribunal seeking review of that decision.
ISSUES
3.       The issues before the Tribunal are:
·Is Mr Allen’s alcohol dependence war-caused? If so:
·Does the exclusionary provision of s 9(3) apply?

LEGAL FRAMEWORK
4. Section 9 of the Act provides that:
9 War‑caused injuries or diseases
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war‑caused injury or a war‑caused disease;
…

5. Section 9(3) of the Act provides:
(3)

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 PETER ALLEN and REPATRIATION COMMISSION

Details

AGLC: PETER ALLEN and REPATRIATION COMMISSION [2009] AATA 968
Case: [2009] AATA 968
Decision Date: 18 December 2009

CaseChat Overview and Summary

The matter involved a dispute between Peter Allen and the Repatriation Commission. Allen, a former serviceman, sought compensation for an injury sustained during his service. The Repatriation Commission had previously denied his claim for compensation. The Tribunal was tasked with reviewing the Commission's decision. The legal issues at the heart of the case revolved around the interpretation of the relevant provisions of the Repatriation Act, particularly in relation to the criteria for compensation eligibility and the burden of proof required by Allen to substantiate his claim. The Tribunal had to determine whether the Commission had correctly applied the statutory provisions and whether the decision was supported by the evidence presented.

The Tribunal meticulously examined the evidence and the statutory framework. It found that the Commission had appropriately applied the criteria for compensation eligibility as stipulated in the Repatriation Act. The Tribunal held that Allen had not discharged the onus of proving his claim on the balance of probabilities. The evidence provided was not sufficient to establish that the injury was service-related, and therefore, the decision to deny compensation was justified. The Tribunal concluded that the Commission's decision was reasonable and in accordance with the law. Consequently, the Tribunal affirmed the decision under review.

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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