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Re Powell and Repatriation Commission

Re Powell and Repatriation Commission

Case [2000] AATA 385 19 May 2000

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CATCHWORDS – VETERANS' AFFAIRS – disability support pension – whether applicant suffers from lumbar spondylosis or Post Traumatic Stress Disorder ("PTSD") – whether either condition is war-caused – lumbar spondylosis not war-caused as not within template of Statement of Principles – PTSD war-caused – decision varied.

Acts Interpretation Act 1901 - s 50
Veterans Entitlement Act 1986 – ss 5AB, 6, 7, 8, 9, 13, 120, 120A, 196B,

Bushell v Repatriation Commission (1992) 175 CLR 408, (1992) 109 ALR 30; (1992) 66 ALJR 753; (1992) 29 ALD 1
Byrnes v Repatriation Commission (1993) 116 ALR 210; (1993) 177 CLR 564; (1993) 67 ALJR 805; (1993) 18 AAR 1; (1993) 30 ALD 1
Cowie and Repatriation Commission – unreported, [1999] AATA 334, 19 May 1999, S A Forgie, Deputy President, Brigadier IRW Brumfield and Dr JB Morley (Members)
Deledio v Repatriation Commission (1997) 47 ALD 261; (1997) 25 AAR 396
Jackson v Secretary, Department of Health (1987) 75 ALR 561; (1987) 14 ALD 153
Medical Benefits Fund of Australia Ltd v Pullinger (1990) 95 ALR 463
Murray v Griffin (1990) 92 ALR 86
Ogston and Repatriation Commission (unreported, 1April, 1999, NG 773 of 1998)
Re Ablett and Repatriation Commission (1997) 47 ALD 796
Re Ogston and Repatriation Commission (1998) 27 AAR 176
Repatriation Commission v Deledio (1998) 27 AAR 144; (1998) 49 ALD 193
Repatriation Commission v Keeley (unreported, [2000] FCA 532, 28 April 2000)
Repatriation Commission v McLean (1998) 50 ALD 149; (1998) 27 AAR 144
Slattery and Repatriation Commission (1998) 52 ALD 90

DECISION AND REASONS FOR DECISION [2000] AATA 385

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q1997/696
VETERANS' APPEALS DIVISION  )

Re RODNEY NORMAN POWELL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss S A Forgie (Deputy President)

Date 19 May, 2000

Place Brisbane

Decision The Tribunal:

1.sets aside that part of the decision of the Repatriation Commission dated 31 July, 1996 as affirmed by a decision of the Veterans' Review Board dated 29 April, 1997 in so far as it determines that the applicant's post traumatic stress disorder is not war-caused within the meaning of the Veterans' Entitlements Act 1986; and

2.substitutes for that part of the decision a decision that the applicant's post traumatic stress disorder is war-caused within the meaning of the Veterans' Entitlements Act 1986; and

3.adjourns consideration of assessment to a later date; and

4.otherwise affirms the decision under review.

S A FORGIE
Deputy President

REASONS FOR DECISION

The applicant, Mr Ronald Powell, applied for review of a decision of the Repatriation Commission ("the Commission") dated 31 July, 1996 to refuse his application for disability support pension for post traumatic stress disorder ("PTSD") and lumbar spondylosis. This decision was affirmed by the Veterans' Review Board in a decision dated 29 April, 1997.

At the hearing, Mr O'Gorman of counsel represented Mr Powell and the Commission was represented by its advocate, Mr Dobbie. The documents provided by the respondent in accordance with s. 37

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 Re Powell and Repatriation Commission

Details

AGLC: Re Powell and Repatriation Commission [2000] AATA 385
Case: [2000] AATA 385
Decision Date: 19 May 2000

CaseChat Overview and Summary

In the case of Re Powell and Repatriation Commission, the applicant, Rodney Norman Powell, appealed against a decision of the Repatriation Commission which held that his post-traumatic stress disorder (PTSD) was not war-caused. The dispute centred on whether Mr. Powell suffered from lumbar spondylosis or PTSD, and whether either of these conditions was caused by his service in the armed forces. The matter was heard by the Administrative Appeals Tribunal (AAT).

The primary legal issues before the AAT were whether the applicant suffered from lumbar spondylosis or PTSD, and if either condition was war-caused. The court was required to interpret the Veterans' Entitlements Act 1986 and relevant case law to determine the applicability of the conditions to Mr. Powell's service. Specifically, the AAT had to examine whether the PTSD was a result of his military service and thus eligible for compensation under the Act.

The AAT found that Mr. Powell did not suffer from lumbar spondylosis as it was not within the template of the Statement of Principles concerning that condition. However, the Tribunal concluded that his PTSD was indeed war-caused. The decision of the Repatriation Commission, affirmed by the Veterans' Review Board, was varied to reflect that the applicant's PTSD was war-caused. The AAT relied on the principles established in Bushell v Repatriation Commission and other relevant case law to arrive at this conclusion. The assessment of the condition was adjourned for a later date, but the Tribunal otherwise affirmed the decision under review.

The AAT set aside the part of the Repatriation Commission's decision that found Mr. Powell's PTSD was not war-caused and substituted a decision that it was. The Tribunal affirmed the rest of the decision and adjourned the assessment of the condition. This outcome provided Mr. Powell with a clearer pathway to receiving compensation for his war-caused PTSD under the Veterans' Entitlements Act 1986.

Orders