Robert Eddington and Repatriation Commission
[2012] AATA 926
[2012] AATA 926
Division General Administrative Division File Number(s)
2011/3907
Re
Robert Eddington
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal The Hon R D Nicholson Deputy President
Dr J Chaney, MemberDate 12 December 2012 Place Perth The Tribunal affirms the decision under review.
..(sgd) R D Nicholson................
The Hon R D Nicholson Deputy President
SUPPLEMENTARY REASONS FOR DECISION
The Hon R D Nicholson Deputy President
Dr J Chaney, Member12 December 2012
On 14 November 2012 the Tribunal directed that:
“ Within 14 days of the publication of these reasons, each of the parties file with the Tribunal and serve on each other a draft of the orders they consider to be appropriate in the circumstances”.
On 19 November 2012 a submission was received from the respondent expressing the view that the order to be made should encompass the Tribunal’s conclusion and attaching a draft order reading:
“ The Tribunal affirms the decision of the Veterans’ Review Board on 28 July 2011 assessing the applicant’s disability pension at 20% of the General Rate to and inclusive of 5 April 2010 and at 70% of the General Rate to operate from and including 6 April 2010”.
On 28 November 2012 the Tribunal received a submission on behalf of the applicant. It is founded on the statement in a letter from the Department of Veterans’ Affairs dated 16 November 2012 in which it is said the Commission has advised the Tribunal that the Veterans’ Review Board had no authority to review the grant of entitlement of Post Traumatic Stress Disorder (“PTSD”). It is submitted that the only evidence before the Commission regarding the applicant’s PTSD is the report from Dr Kay. Therefore, it is contended, one must conclude that the Commission has accepted evidence in this report. Further, it is argued that when Dr Yin assigned no points to the applicant for his PTSD when reporting on 14 June 2011 he did so because the specialists had pointed out the applicant did not have PTSD. The submission also contends that the applicant does meet the criteria for PTSD because the Commission has accepted his PTSD disability.
It is apparent that the submissions for the applicant seek to have the Tribunal re-enter the issues on which it has already formed and announced its opinion. Further, as the submission for the respondent points out, s 31 of the Veterans’ Entitlement Act 1986 (Cth) permits review of a pension in circumstances where a matter was not before the Commission when a decision to grant the pension was made. The submission then states:
“ In view of the findings of the Tribunal this matter will be recommended for consideration under this section.”
Therefore we do not agree with the respondent’s reasoning or its formulation of the decision of this Tribunal. In our opinion the correct decision is simply that the Tribunal affirm the decision under review.
I certify that the preceding 5 (five) paragraphs are a true copy of the supplementary reasons for the decision herein of The Hon R D Nicholson Deputy President and Dr J Chaney, Member ..(sgd) T Freeman...................
Administrative Assistant
Dated 12 December 2012
Dates of hearing 10 and 11 September 2012 Date final submissions received 28 November 2012 Advocate for the Applicant Mr P Harris Advocate for the Respondent Mr C Ponnuthurai
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