DECISION AND REASONS FOR DECISION [2005] AATA 1292
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/236
VETERANS' APPEALS DIVISION ) Re RYSART JOESEF PORTAKIEWICZ Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date22 December 2005
PlaceAdelaide
Decision 1. The tribunal varies the decision under review insofar as it relates to the applicant’s conditions of PTSD and hypertension, and decides that those conditions are war-caused.
2. The tribunal affirms the decision under review insofar as it relates to the applicant’s condition of alcohol dependence.
3. The tribunal remits the matter to the respondent with a direction that the respondent assess the applicant’s entitlements in accordance with the attached reasons for decision.
4. The tribunal reserves liberty to the parties to apply, on or before 18 January 2006, in relation to the date of effect from which pension payable as a result of this decision should take effect, and in the absence of any such application, the date of effect will be 1 June 2000.
..............................................
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veteran’s entitlements – post-traumatic stress disorder – alcohol dependence – hypertension – tribunal decided that conditions not war-caused – appeal to Federal Court allowed – matter remitted to tribunal for determination in accordance with law – consideration of whether veteran is suffering from post-traumatic stress disorder – hypothesis that claimed conditions are war-caused – applicant experienced a “severe stressor” prior to clinical onset of claimed conditions – Statements of Principles – decision under review varied.
Veterans’ Entitlements Act 1986, s 120
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bull v Repatriation Commission (2001) 66 ALD 27
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987) 16 FCR 517
Elliott v Repatriation Commission (2002) 73 ALD 377
Guy v Repatriation Commission [2005] FCA 562
Hardman v Repatriation Commission (2004) 82 ALD 433
Lees v Repatriation Commission (2002) 125 FCR 331
Re Portakiewicz and Repatriation Commission [2003] AATA 343
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 65 ALD 609
Repatriation Commission v Stoddart (2003) 134 FCR 392
Stoddart v Repatriation Commission (2003) 74 ALD 366
Woodward v Repatriation Commission (2003) 200 ALR 332
REASONS FOR DECISION
22 December 2005 Deputy President D G Jarvis 1. The applicant, Rysart Joesef Portakiewicz, is a veteran of the Vietnam War. He served with the Royal Australia Navy between 6 April 1964 and 5 April 1973. He had thirty days’ operational service on HMAS Sydney between 27 May and 26 June 1965, and thirty-six days’ operational service between 14 September and 20 October 1965. He also served on HMAS Parramatta, and had nine days’ operational service between 15 and 24 May 1971. In each case the vessel on which he served sailed to Vietnam.
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- Portakiewicz and Repatriation Commission [2005] AATA 1292
- Case
- [2005] AATA 1292
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the AAT erred in its determination that the applicant’s conditions were not war-caused. Specifically, the court needed to consider whether the AAT appropriately applied the relevant legislative criteria and case law in assessing the war-causation of the applicant’s conditions. The applicant argued that the AAT failed to adequately consider the severity of the stressor he experienced during his service and the temporal relationship between this stressor and the onset of his conditions. The Repatriation Commission contended that the AAT’s findings were supported by the evidence and aligned with established legal principles.
The Federal Court found that the AAT did not adequately consider the evidence regarding the severity of the stressor experienced by the applicant and its potential impact on the onset of his conditions. The court held that the AAT’s approach to the evidence did not align with the requirements of the Veterans’ Entitlements Act 1986 and relevant case law. Consequently, the court allowed the appeal, varied the AAT’s decision, and remitted the matter back to the AAT for re-determination. The court emphasised that the AAT must now properly consider the hypothesis that the applicant’s claimed conditions are war-caused, taking into account the severity of the stressor and its temporal relationship with the clinical onset of the conditions.
The court's orders included varying the AAT’s decision to recognise that the applicant’s PTSD and hypertension are war-caused, affirming the AAT’s decision regarding alcohol dependence, and directing the AAT to reassess the applicant’s entitlements. The court also set a deadline for the parties to apply regarding the date of effect for any pension payable, with a default date of 1 June 2000 if no such application is made.
Orders
Orders of the court
1. The tribunal varies the decision under review insofar as it relates to the applicant’s conditions of PTSD and hypertension, and decides that those conditions are war-caused.
2. The tribunal affirms the decision under review insofar as it relates to the applicant’s condition of alcohol dependence.
3. The tribunal remits the matter to the respondent with a direction that the respondent assess the applicant’s entitlements in accordance with the attached reasons for decision.
4. The tribunal reserves liberty to the parties to apply, on or before 18 January 2006, in relation to the date of effect from which pension payable as a result of this decision should take effect, and in the absence of any such application, the date of effect will be 1 June 2000.
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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