VETERAN’S AFFAIRS – appeal from a decision of the Administrative Appeals Tribunal – disability pension – claim for pension for post-traumatic stress disorder and alcohol dependence – operation of Statement of Principles and ss 120, 120A, 196B of the Veterans’ Entitlement Act 1986 (Cth) – whether respondent suffers an injury or disease – whether necessary for decision-maker to have regard to the definition of the injury or disease in the applicable Statement of Principles – function and application of Statement of Principles and DSM-IV – whether Tribunal entitled to act upon a concession – whether insufficiency of evidence to permit finding – inconsistency of evidence.
Repatriation Commission v Gosewinckel (1999) 59 ALD 690 Considered
Repatriation Commission v Hill (2002) FCAFC 192; 69 ALD 581 Cited
REPATRIATION COMMISSION v MICHAEL ANTHONY WARREN QUD 298 OF 2006
KIEFEL J 8 JUNE 2007 BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 298 OF 2006
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR P HACK, DEPUTY PRESIDENT
BETWEEN:
REPATRIATION COMMISSION Applicant
AND:
MICHAEL ANTHONY WARREN Respondent
JUDGE:
KIEFEL J
DATE OF ORDER:
8 JUNE 2007
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The applicant pay the respondent’s costs of the appeal.
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
QUD 298 OF 2006
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR P HACK, DEPUTY PRESIDENT
BETWEEN:
REPATRIATION COMMISSION Applicant
AND:
MICHAEL ANTHONY WARREN Respondent
JUDGE:
KIEFEL J
DATE:
8 JUNE 2007
PLACE:
BRISBANE
REASONS FOR JUDGMENT
On 15 October 2002 the respondent, Mr Warren, made a disability claim under the Veterans’ Entitlements Act 1986 (Cth) (‘the VEA’). His disability was described as ‘Stress, Depression and Anxiety’. A symptom was said to be ‘alcoholism’. The respondent claimed to have been diagnosed as suffering from ‘war caused PTSD [post traumatic stress disorder] 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.
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Details
AGLC
Repatriation Commission v Warren [2007] FCA 866
Case
[2007] FCA 866
Decision Date
CaseChat Overview and Summary
The matter before the court was an appeal by the Repatriation Commission against a decision of the Social Security Appeals Tribunal (SSAT). The dispute revolved around the SSAT’s determination that the respondent, Mr. Warren, satisfied factor 5(a) of the Schedule of Pensionable Disabilities (SoP), which pertains to alcohol dependence, due to his post-traumatic stress disorder (PTSD) stemming from his service in Vietnam. The SSAT found that Mr. Warren’s PTSD was linked to his alcohol dependence, a conclusion that the Repatriation Commission contested.
The central legal issue before the court was whether the SSAT was correct in its interpretation and application of factor 5(a) of the SoP. Specifically, the court had to determine whether the SSAT erred in finding that Mr. Warren’s PTSD and alcohol dependence were related, such that his alcohol dependence was a consequence of his PTSD. The Repatriation Commission argued that the SSAT’s reasoning was flawed, while Mr. Warren maintained that the SSAT’s findings were supported by the evidence presented, particularly the expert testimony of Dr. Rogers, who linked the two conditions.
The court found that the SSAT’s reasons were clear in addressing factor 5(a) and that the evidence supported the SSAT’s conclusion. The court held that the SSAT correctly interpreted the relationship between Mr. Warren’s PTSD and alcohol dependence, noting that the Tribunal was correct in finding that the two conditions were related and that the alcohol dependence followed the severe stressors associated with the PTSD. Given the evidence and the concessions made by the Repatriation Commission, the court found no merit in the appeal.
The court ordered that the appeal be dismissed and that the Repatriation Commission pay the respondent’s costs of the appeal. This outcome reflects the court’s affirmation of the SSAT’s findings and the reasoning that underpinned its decision.
Orders
Orders of the court
1. The appeal is dismissed.
2. The applicant pay the respondent’s costs of the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
KIEFEL J
The applicant’s last point concerns the Tribunal’s finding that factor 5(a) of the SoP, relating to alcohol dependence, had been satisfied because of its findings with regard to the respondent’s PTSD. The respondent submits that the Tribunal’s reasons (at [18] above) may have two meanings: that he was suffering from PTSD at the time of clinical onset of his alcohol dependence or that he experienced the same severe stressor as that attributed to the PTSD. The latter finding may well have been open, but the Tribunal’s reasons make plain that it was factor 5(a) to which its finding was addressed. There was evidence which supported the finding, including that of Dr Rogers who regarded the conditions as related and the heavy consumption of alcohol to have followed upon the latter of the incidents in Vietnam. The applicant had itself expressly conceded in its Statement of Issues that if the Tribunal finds that PTSD and alcohol dependence are both present, it would be to the Tribunal to find that fact 5(a) of SoP No 3 of 1999 am No 76 of 1998 is satisfied’.CONCLUSION The appeal should be dismissed with costs.