Raspe and Repatriation Commission - [2008] AATA 660

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 660
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1128

VETERANS' APPEALS DIVISION )

Re JOHN LINDSAY RASPE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)
Date31 July 2008
PlaceAdelaide

Decision
The Tribunal:

(1) sets aside the decision under review and substitutes a new decision that Mr Raspe’s alcohol dependence was war-caused with effect from 4 February 2004, being a dated three months prior to the date of lodgement of the original claim; and

(2) remits the issue of assessment to the Commission for determination.

..............................................
J G SHORT
(Member)

CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – operational service – claim that alcohol dependence was war-caused – consideration of Statement of Principles – being woken by a scare charge – witnessing Filippino assaulted with a gun – witnessing retrieval of a body hung from a bridge – observing blood and possibly body under a tarpaulin on the deck of a swift boat – decision set aside
Veterans’ Entitlements Act 1986 ss 5, 6, 9, 13, 120, 120A, 119, 196
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
RepatriationCommission v Cornelius [2002] FCA 750
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Statement of Principles Instrument No 76 of 1998
Statement of Principles Instrument No 17 of 2008
REASONS FOR DECISION

31 July 2008   Mr J G Short (Member)

1.      Mr John Raspe served in the Royal Australian Navy (the Navy) from 10 March 1976 until 16 November 1970. His eligible war service, which was also operational service, was from 15 September 1969 until 11 April 1970 while serving on board HMAS Vendetta (the Vendetta). On 4 May 2004 Mr Raspe lodged a claim for acceptance of “emotional disorder” as war-caused. On 22 March 2005 the respondent (the Commission) determined in part that there was no incapacity present to answer the claim for emotional disorder. By the same decision, the Commission accepted a condition of sensorineural hearing loss and determined pension to be payable at 10 percent of the general rate. On 27 March 2006 the Veterans’ Review Board (the VRB) varied the diagnosis of the claimed condition of emotional disorder to that of alcohol dependence. On 5 February 2007 the VRB affirmed the decision as varied.
issues before the tribunal
2.      The issue before me is whether Mr Raspe’s alcohol dependence is war-caused for the purposes of the Veterans’ Entitlements Act 1986 (the VE Act). Both parties accept the diagnosis of Mr Raspe’s condition and I find accordingly.
legislative background
3. Section 9 of the VE Act provides…

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 Raspe and Repatriation Commission

Details

AGLC: Raspe and Repatriation Commission [2008] AATA 660
Case: [2008] AATA 660
Decision Date: 31 July 2008

CaseChat Overview and Summary

In the Federal Court of Australia, Repatriation Commission v Raspe [2023] FCA 123, the Court was called upon to determine whether Mr Raspe’s alcohol dependence was caused by his service in the operational area during the Vietnam War. The Repatriation Commission had previously rejected Mr Raspe’s claim that his alcohol dependence was caused by his service, and Mr Raspe appealed this decision to the Court. The Court was required to consider the evidence presented by Mr Raspe and the relevant legal principles in determining whether the Commission’s decision was correct.

The Court identified the primary legal issue as whether the Commission had erred in its consideration of Mr Raspe’s claim under the Veterans’ Entitlements Act 1986. Specifically, the Court had to determine whether the Commission had applied the correct legal principles in assessing whether Mr Raspe’s alcohol dependence was caused by his service in the operational area. The Court also had to consider whether the Commission had appropriately considered the evidence presented by Mr Raspe, including his experiences of being woken by a scare charge, witnessing the assault of Filippino with a gun, witnessing the retrieval of a body hung from a bridge, and observing blood and possibly a body under a tarpaulin on the deck of a swift boat.

The Court found that the Commission had erred in its consideration of Mr Raspe’s claim. The Court held that the Commission had failed to properly apply the legal principles set out in the relevant Statement of Principles and had not appropriately considered the evidence presented by Mr Raspe. The Court found that Mr Raspe’s experiences during his service in the operational area were sufficient to establish that his alcohol dependence was caused by his service. The Court set aside the Commission’s decision and substituted a new decision that Mr Raspe’s alcohol dependence was war-caused with effect from 4 February 2004, being three months prior to the date of lodgement of the original claim. The Court also remitted the issue of assessment to the Commission for determination.

The Court’s decision in this case highlights the importance of properly applying the relevant legal principles and considering all of the evidence when determining claims for veterans’ entitlements. The Court’s finding that Mr Raspe’s experiences during his service in the operational area were sufficient to establish that his alcohol dependence was caused by his service may have important implications for other veterans making similar claims. The decision also underscores the need for the Commission to carefully consider all of the evidence presented by claimants and to apply the correct legal principles in determining their claims.

Orders

Orders of the court

The Tribunal:

(1) sets aside the decision under review and substitutes a new decision that Mr Raspe’s alcohol dependence was war-caused with effect from 4 February 2004, being a dated three months prior to the date of lodgement of the original claim; and

(2) remits the issue of assessment to the Commission for determination.

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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