Potter and Repatriation Commission - [2003] AATA 808

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 808
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/119

VETERANS' APPEALS DIVISION )

Re DENNIS POTTER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr M Allen, Member
Date15 August 2003
PlacePerth

Decision
The decision of the Veterans’ Review Board of 13 February 2002, which affirmed the decision of the Repatriation Commission of 10 January 2000, is set aside and in substitution therefor the Tribunal decides that the applicant is entitled to disability pension for generalised anxiety disorder and irritable bowel syndrome, with effect from 11 July 1999.

….........(sgd M Allen)..................
Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – disability pension – whether disease caused by war service – generalised anxiety disorder – anxiety disorder not otherwise specified – irritable bowel syndrome – whether reasonable hypothesis established connecting diseases to war service
Veterans’ Entitlement Act 1986 ss 9, 120, 120A
Statement of Principles Instrument No. 48 of 1994
Statement of Principles Instrument No. 103 of 1996
Statement of Principles Instrument No. 1 of 2000
Repatriation Commission v Deledio (1998) 46 ALD 193
Re Ogden and Repatriation Commission [2002] AATA 512
Repatriation Commission v Gorton (2001) 110 FCR 321
REASONS FOR DECISION

15 August 2003 Mr M Allen, Member

1.      This is an application by Mr Potter for review of a decision made by the Repatriation Commission (“the Commission”) on 10 January 2000, which was reviewed by the Veterans’ Review Board (“the Board”) with the decision of the Board being made on 13 February 2002.
2. At the hearing Mr Potter was represented by an advocate, Mr Peter Lofdahl, and the respondent was represented by Mr Ponnuthurai. The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1 – T27) and also the exhibits tendered during the hearing by the applicant (A1 – A10) and by the respondent (R1 and R2). Mr Potter and his wife gave oral evidence at the hearing, as did Dr Anthony Mander.
Background
3.      The following is the uncontested background evidence on which the following finding of fact can be made.
4.      Mr Potter was born in February 1946 and served in the Australian Army between July 1968 and July 1970. He rendered operational service in Vietnam from 9 April 1969 to 9 April 1970.
5.      On his discharge in 1970 Mr Potter had an accepted war-caused disability described as “synovitis biceps tendon right knee”.. At that time a claim for asthma as being war-caused was rejected.
6.      In December 1998 Mr Potter made an application for an increase in his then disability pension on the basis of a claim for asthma and tinnitus. In May 1999 a delegate of the Commission rejected the claim for asthma but accepted the claim for “bilateral sensorineural hearing loss with tinnitus” with effect from 10 September 1998.
7.      In October 1999 Mr Potter applied to have accepted as war-caused the conditions of generalised anxiety disorder (“GAD”), irritable bowel syndrome…

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 Potter and Repatriation Commission

Details

AGLC: Potter and Repatriation Commission [2003] AATA 808
Case: [2003] AATA 808
Decision Date: 15 August 2003

CaseChat Overview and Summary

In the case before the Administrative Appeals Tribunal, the applicant, Mr. Potter, sought a review of a decision made by the Veterans’ Review Board, which upheld a decision of the Repatriation Commission denying him a disability pension for generalised anxiety disorder and irritable bowel syndrome. Mr. Potter argued that these conditions were caused by his war service and, as such, he was entitled to the pension. The Tribunal was tasked with determining whether the diseases were reasonably attributable to Mr. Potter's service and, if so, whether he met the criteria for a disability pension under the Veterans’ Entitlement Act 1986.

The primary legal issue was whether Mr. Potter had established a reasonable hypothesis connecting his generalised anxiety disorder and irritable bowel syndrome to his war service, satisfying the requirements under the Veterans’ Entitlement Act 1986. The relevant sections of the Act, along with various Statement of Principles Instruments and precedent cases, were central to this determination. The Tribunal had to consider the evidence presented regarding the onset and progression of Mr. Potter's conditions and whether they were connected to his service in a way that met the statutory criteria.

Upon reviewing the evidence and the relevant legal framework, the Tribunal concluded that Mr. Potter had indeed established a reasonable hypothesis linking his conditions to his war service. The Tribunal found that the generalised anxiety disorder and irritable bowel syndrome were reasonably attributable to Mr. Potter's service, thus satisfying the statutory requirements. The decision of the Veterans’ Review Board was set aside, and the Tribunal ruled in favour of Mr. Potter, granting him the disability pension for the specified conditions from 11 July 1999.

The final orders of the Tribunal were that the decision of the Veterans’ Review Board of 13 February 2002, which upheld the Repatriation Commission's decision, be set aside. In its place, the Tribunal decided that Mr. Potter was entitled to a disability pension for generalised anxiety disorder and irritable bowel syndrome, effective from 11 July 1999.

Orders

Orders of the court

The decision of the Veterans’ Review Board of 13 February 2002, which affirmed the decision of the Repatriation Commission of 10 January 2000, is set aside and in substitution therefor the Tribunal decides that the applicant is entitled to disability pension for generalised anxiety disorder and irritable bowel syndrome, with effect from 11 July 1999.

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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