Portakiewicz and Repatriation Commission - [2003] AATA 343

Administrative

Appeals

Tribunal

DECISION AND ORAL REASONS FOR DECISION [2003] AATA 343
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2001/440

VETERANS' APPEALS DIVISION )

Re RICHARD PORTAKIEWICZ

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member WJF Purcell
Date19 March 2003
PlaceAdelaide

Decision
The Tribunal sets aside the decision under review, only insofar as it determined that the diagnosis of alcohol dependence and alcohol abuse was appropriate, and it rejected the condition of tinnitus. The Tribunal substitutes a decision that the diagnosis of alcohol dependence is appropriate, that the condition of tinnitus was war-caused with effect from 1 June 2000. The Tribunal otherwise affirms the decision under review.

(Signed)
WJF PURCELL
(Senior Member)

CATCHWORDS
VETERANS' AFFAIRS - veterans' entitlements - Disability Pension - whether applicant’s conditions of PTSD, alcohol dependence and hypertension are war-caused – whether applicant experienced severe stressors during his operational service – reasonable hypothesis
Veterans’ Entitlements Act 1986 sections 120, 120A
Statement of Principles No 76 of 1998
Statement of Principles No 3 of 1999
Statement of Principles No 54 of 1999
Statement of Principles No 31 of 2001
ORAL REASONS FOR DECISION

19 March 2003   Senior Member WJF Purcell

1.      This is an application for review of a decision of the Repatriation Commission (the Commission) of 4 May 2001, insofar as it rejected the applicant’s claim for acceptance of post traumatic stress disorder (PTSD), alcohol abuse and dependence, hypertension and tinnitus as war-caused. The Veterans’ Review Board (VRB) affirmed the decision on 30 August 2001. At the commencement of the Hearing, the parties advised that the condition of tinnitus was conceded now by the Commission.
2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with exhibits tendered by the parties. Mr Ower of counsel represented the applicant, who gave oral evidence, and called Dr M Ewer, Psychiatrist, Dr D Kelly, Psychiatrist, and Mr D Norman, a former Naval Engineer, as witnesses. Mr Crowe represented the Commission, which called Commodore P Mulcare, Historian, and Captain O Archer, former Engineer on HMAS Parramatta (the Parramatta). They gave evidence by way of telephone link up.
3.      The applicant, who is 56 years of age, served with the Royal Australian Navy (the Navy) from 6 April 1964 to 5 April 1973, when he retired as Petty Officer Marine Technical Propulsion. He has operational service as follows:
·     In South Vietnam aboard HMAS Sydney (the Sydney) from 27 May 1965 to 26 June 1965 (30 days, with 3 days in Vung Tau Harbour) and from 14 September 1965 to 20 October 1965 (36 days, with 3 days in Vung Tau Harbour, Tuesday 28 September 1965 to Thursday 30 September 1965).
·     In Malayan waters aboard HMAS Supply from 24 March 1966 to 11 May 1966 (48 days) and from 26 May 1966 to 26 June 1966 (31 days).
·     In South Vietnam aboard the Parramatta from 15 May 1971 to 24 May…

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 Portakiewicz and Repatriation Commission

Details

AGLC: Portakiewicz and Repatriation Commission [2003] AATA 343
Case: [2003] AATA 343
Decision Date: 19 March 2003

CaseChat Overview and Summary

Portakiewicz was a member of the Australian Defence Force who sought a determination from the Repatriation Commission as to whether certain medical conditions were war-caused. The Tribunal was asked to review a decision of the Commission. The dispute primarily revolved around two conditions: alcohol dependence and alcohol abuse, and tinnitus. Portakiewicz argued that the Commission had erred in its determinations regarding these conditions.

The primary legal issues before the Tribunal were whether the Commission had correctly identified the diagnoses of alcohol dependence and alcohol abuse, and whether the condition of tinnitus was appropriately recognised as war-caused. The Tribunal had to examine the evidence and medical assessments provided to determine if the Commission's findings were justified. The focus was on whether the medical evidence sufficiently supported the Commission's conclusions on these diagnoses and conditions.

The Tribunal found that while the diagnosis of alcohol dependence was appropriate, the Commission had erred in its handling of the tinnitus condition. The evidence provided indicated that tinnitus was indeed war-caused, contrary to the Commission's decision. Therefore, the Tribunal set aside the part of the decision that rejected tinnitus as a war-caused condition and substituted its own decision recognising tinnitus as war-caused from 1 June 2000. The Tribunal otherwise upheld the Commission's decision, affirming the correctness of the diagnosis of alcohol dependence and alcohol abuse.

Orders

Orders of the court

The Tribunal sets aside the decision under review, only insofar as it determined that the diagnosis of alcohol dependence and alcohol abuse was appropriate, and it rejected the condition of tinnitus. The Tribunal substitutes a decision that the diagnosis of alcohol dependence is appropriate, that the condition of tinnitus was war-caused with effect from 1 June 2000. The Tribunal otherwise 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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VETERANS' APPEALS DIVISION		)
Re		RICHARD PORTAKIEWICZ