PINK and REPATRIATION COMMISSION - [2010] AATA 46

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 46
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5525

VETERANS' APPEALS DIVISION )

Re DARRYL KEITH PINK

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member L Hastwell
Mr S J Ellis AM (Member)
Date22 January 2010
PlaceAdelaide

Decision

The Tribunal affirms the decision under review.

..............................................
L HASTWELL
(Senior Member)

CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – operational service – claim that generalised anxiety disorder and alcohol dependence were war-caused – consideration of Statements of Principles – three individual stressors claimed – consideration of what amounts to a life threatening event – the Deledio principles considered – applicant an unreliable witness – decision under review affirmed
Veterans’ Entitlements Act 1986, ss 6C, 6D, 6E, 7(1), 9(1), 13(1), 120(1), 120(3), 120A(3)
Repatriation Commission v Deledio (1998) 83 FCR 82
Bullv Repatriation Commission (2001) 6 ALD 271
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Stoddart v Repatriation Commission (2003) 74 ALD 366
Woodward v Repatriation Commission (2003) 131 FCR 473
Repatriation Commission v Stoddart [2003] FCAFC 300
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
RepatriationCommission v Cornelius [2002] FCA 750
Statement of Principles Instrument No 76 of 1998
Statement of Principles Instrument No 101 of 2007
Statement of Principles Instrument No 17 of 2008
Statement of Principles Instrument No 1 of 2009
REASONS FOR DECISION

22 January 2010   Senior Member L Hastwell
  Mr S J Ellis AM (Member)

1.      Darryl Keith Pink served in the Royal Australian Navy (the Navy) from 11 July 1966 to 31 December 1973. During that period he had operational service from 22 February 1970 to 1 March 1970, from 22 February 1971 to 1 March 1971 and from 21 November 1972 to 26 November 1972.
2.       Mr Pink has the following accepted disabilities:
·bilateral sensorineural hearing loss with tinnitus;
·ischaemic heart disease;
·atrial fibrillation; and
·fracture of the left clavicle.

3.      Mr Pink has been in receipt of a veteran’s pension at 100 percent of the disability rate since 8 March 2007.
4.      On 29 August 2007, Mr Pink lodged an application for the conditions of generalised anxiety disorder and alcohol dependence or alcohol abuse to be accepted as service related conditions (T3/16-28).
5.      On 7 December 2007, a delegate of the Repatriation Commission (the Commission) rejected Mr Pink’s claim that these particular conditions were related to his service within the meaning of the Veterans’ Entitlements Act 1986 (the VE Act) (T4/29-37).
6.      Mr Pink sought a review of the delegate’s decision from the Veterans’ Review Board (the VRB). On 28 October 2008 the VRB affirmed the decision insofar as it related to the conditions that are the subject of this review. Mr Pink has sought a review of the VRB decision to this Tribunal.
7.      The Commission does not dispute that Mr Pink has been diagnosed with the conditions of generalised anxiety disorder…

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 PINK and REPATRIATION COMMISSION

Details

AGLC: PINK and REPATRIATION COMMISSION [2010] AATA 46
Case: [2010] AATA 46
Decision Date: 22 January 2010

CaseChat Overview and Summary

The matter involved a claim by the applicant, Pink, seeking veterans' entitlements for generalised anxiety disorder and alcohol dependence, which he asserted were caused by his operational service. The Repatriation Commission had reviewed and dismissed his claim, a decision Pink sought to overturn. The Federal Circuit Court was tasked with examining the merits of Pink's appeal against the Commission's decision.

The court's primary task was to determine whether the applicant's conditions were caused by his service, a question that hinged on the interpretation and application of relevant Statements of Principles and case law. Specifically, the court considered whether Pink's claims met the threshold of being 'war-caused' as defined by the Veterans' Entitlements Act 1986 and relevant Statements of Principles. Additionally, the court examined whether Pink's experiences constituted individual stressors severe enough to qualify as life-threatening events under the Deledio principles. Another key issue was the credibility of Pink as a witness, given the Commission's finding that he was unreliable.

The court reviewed the evidence and submissions, concluding that the Repatriation Commission's decision was correct. The applicant's claims did not satisfy the statutory criteria for being war-caused, as the evidence did not support a finding that his conditions were attributable to his service. The court also found that the applicant's unreliability as a witness further undermined his case. The Deledio principles were applied, and it was determined that the events experienced by Pink did not reach the severity required to constitute individual stressors. The court's decision was informed by relevant case law and statutory provisions, which reinforced the Commission's findings.

The Tribunal affirmed the decision of the Repatriation Commission, dismissing the applicant's appeal. This outcome means that Pink's claim for veterans' entitlements for his alleged conditions was not upheld.

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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