Preece and Repatriation Commission - [2004] AATA 442

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 442
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1450

VETERANS’ APPEALS DIVISION )

Re DENNIS JOHN PREECE

Applicant

And

REPATRATION COMMISSION

Respondent

DECISION

Tribunal
Ms S M Bullock, Senior Member

Dr J C Campbell, Member

Date 6 May 2004
PlaceSydney

Decision
Pursuant to section 43 of the Administrative Appeals TribunalAct 1975, the decision under review is set aside and in substitution therefor, the Administrative Appeals Tribunal decides that:

(i) Mr Preece has a war-caused generalised anxiety disorder with associated alcohol abuse, depression and agoraphobia as part of that generalised anxiety disorder with effect from 4 March 2001;

(ii) The assessment of Mr Preece’s war-caused generalised anxiety disorder with associated alcohol abuse, depression and agoraphobia is remitted to the Repatriation Commission for assessment including an updated assessment of Mr Preece’s other war-caused conditions;

(iii) Mr Preece is qualified to receive a pension at the Special Rate with effect from 15 July 2002, the date Mr Preece ceased employment.

..............................................
Ms S M Bullock
Presiding Member

VETERANS’ AFFAIRS - Entitlements– Disability Pension – Special Rate Diagnosis –Generalised Anxiety Disorder – Depression – Alcohol Abuse
Veterans’ Entitlements Act 1986 ss 119, 120, 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
Re Gray and Repatriation Commission [2004] AATA 224
Stoddart v Repatriation Commission (2003) 197 ALR 283
Woodward v Repatriation Commission [2003] FCAFC 160
Delahunty v Repatriation Commission [2004] FCA 309
REASONS FOR DECISION

6 May 2004

  Ms S M Bullock, Senior Member
  Dr J C Campbell, Member

1.        Mr Dennis John Preece, the Applicant, served in the Royal Australian Navy (“the Navy”) from 9 April 1966 to 8 April 1986 (T3). Mr Preece served in HMAS Duchess in Vietnam from 19 September 1968 until 15 May 1969 and this constitutes operational service (T3). Mr Preece also rendered defence service as defined in Part IV of the Veterans’ Entitlements Act1986 from 7 December 1972 until 8 April 1986 (T2, p7). Mr Preece claims that his naval service in Vietnam has caused him to develop generalised anxiety disorder, with alcohol abuse and depression as part of the generalised anxiety disorder. Mr Preece also claims that he is permanently unable to undertake any paid work and is therefore entitled and qualified for a pension at the Special Rate. Mr Preece has had his claim refused by the Respondent, the Repatriation Commission, by a decision dated 31 October 2001 (T2). Mr Preece made an application for review to the Veterans’ Review Board (“the Board”) which also was refused on 2 September 2002 (T11). Mr Preece made an application for review to the Administrative Appeals Tribunal (“the Tribunal”) of the Board’s decision and that is the decision under review for the purposes of this determination.
2. A Hearing was held in Sydney on 29 July 2003 and resumed on 12 November 2003. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (“T Documents” T1-T15) and…

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 Preece and Repatriation Commission

Details

AGLC: Preece and Repatriation Commission [2004] AATA 442
Case: [2004] AATA 442
Decision Date: 6 May 2004

CaseChat Overview and Summary

The case of Preece and the Repatriation Commission was heard in the Federal Court of Australia. Mr Preece, a former member of the Australian Defence Force, appealed against the Repatriation Commission’s decision that he did not suffer from a war-caused generalised anxiety disorder and was not entitled to a pension. The court was required to determine the validity of the Commission’s decision and the appropriate compensation for Mr Preece’s conditions.

The central legal issue in this case was whether Mr Preece's generalised anxiety disorder, along with associated conditions such as alcohol abuse, depression, and agoraphobia, were war-caused. The court needed to assess the evidence presented and determine if the Commission's decision was legally sound and supported by the evidence. Another key issue was whether Mr Preece was entitled to a pension based on his conditions and the effective date of such entitlement.

The court found that Mr Preece did indeed suffer from a war-caused generalised anxiety disorder with associated alcohol abuse, depression, and agoraphobia, which began on 4 March 2001. It was held that the Commission's decision was not supported by the evidence. The court concluded that Mr Preece was qualified to receive a pension at the Special Rate, effective from 15 July 2002, the date he ceased employment. Consequently, the court set aside the Commission’s decision and substituted its own, ordering an updated assessment and the appropriate pension entitlement.

Orders

Orders of the court

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and in substitution therefor, the Administrative Appeals Tribunal decides that:

(i) Mr Preece has a war-caused generalised anxiety disorder with associated alcohol abuse, depression and agoraphobia as part of that generalised anxiety disorder with effect from 4 March 2001;

(ii) The assessment of Mr Preece’s war-caused generalised anxiety disorder with associated alcohol abuse, depression and agoraphobia is remitted to the Repatriation Commission for assessment including an updated assessment of Mr Preece’s other war-caused conditions;

(iii) Mr Preece is qualified to receive a pension at the Special Rate with effect from 15 July 2002, the date Mr Preece ceased employment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.