Repatriation Commission v Turner

[2004] FCA 1184

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Turner [2004] FCA 1184

VETERANS’ ENTITLEMENTS – appeal from the decision of the Administrative Appeals Tribunal that the respondent’s post traumatic stress disorder was related to defence service – HMAS Melbourne collision with USS Frank E Evans – whether the Administrative Appeals Tribunal applied the correct standard of proof – inappropriate reference to Repatriation Commission v Deledio (1998) 83 FCR 82 in reasons of the Administrative Appeals Tribunal – finding of fact that there was an aggravation of respondent’s post traumatic stress disorder during defence service – finding of fact that there was an inability to obtain appropriate clinical management

Administrative Appeals Tribunal Act 1975 (Cth) s 44
Veterans’ Entitlements Act 1986 (Cth) ss 70, 120, Division 2, Pt IV

Repatriation Commission v Deledio (1998) 83 FCR 82 referred to
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to

REPATRIATION COMMISSION v GRAEME TURNER

No Q 72 of 2004

SPENDER J
BRISBANE
10 SEPTEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 72 OF 2004

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	REPATRIATION COMMISSION APPLICANT
AND:	GRAEME TURNER RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	10 SEPTEMBER 2004
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of and incidental to the application, to be taxed if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 72 OF 2004

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	REPATRIATION COMMISSION APPLICANT
AND:	GRAEME TURNER RESPONDENT

JUDGE:	SPENDER J
DATE:	10 SEPTEMBER 2004
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) by the Repatriation Commission (“the Commission”) from a decision by the Administrative Appeals Tribunal (“the AAT”) which determined that the post traumatic stress disorder (“PTSD”) of Mr Turner was related to his defence service.

2. Mr Turner (“the respondent”) was born on 4 March 1951 and saw service in the Navy from 31 May 1968 until 14 September 1978. He had “defence service” as defined by the Act from 7 December 1972 to 14 September 1978, the date of his discharge from the Navy. The respondent lodged two separate claims with the Commission under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The first of these was lodged on 29 March 2000 and the second on 1 October 2001.

3. In relation to the claim lodged on 1 October 2001, the Commission refused the respondent’s claim for recognition of PTSD and alcohol abuse/dependence on 5 October 2001.  The respondent sought a review of the decision of the Commission by the Veterans’ Review Board (“the VRB”) which on 2 May 2002 affirmed the decision of the Commission.  On 22 August 2002, the respondent applied for a review of the VRB’s affirmation…