Robertson and Repatriation Commission - [2006] AATA 366

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 366
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/163

DIVISION )

Re JOHN ROBERTSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal J.W. Constance, Senior Member
Date26 April 2006
PlaceCanberra

Decision
The decision of the Veterans’ Review Board made 27 May 2003 is set aside and the matter is remitted for determination on the basis that Mr Robertson’s generalised anxiety disorder was war-caused.

..............................................
J.W. Constance, Senior Member

CATCHWORDS
Veterans’ Affairs – War-caused injury or disease – Statements of Principles – Reasonable hypothesis – Date of onset of disorder – Whether veteran rendered operational service – Whether veterans’ generalised anxiety disorder was war-caused – Meaning of “severe psychosocial stressor” – Whether identifiable occurrence is one that evokes feelings of substantial distress.
Administrative Appeals Tribunal Act 1975 (Cth) s 42(1).
Veterans’ Entitlement Act 1986 (Cth) ss 5, 6, 7, 9, 69, 70 120
Repatriation Commission v Deledio (1998) 83 FCR 82
Re Dell and Repatriation Commission (1986) 9 ALD 596
Hardman v Repatriation Commission (2004) 82 ALD 433
Repatriation Commission v Law (1980) 31 ALR 140
Delahunty v Repatriation Commission [2004] FCA 309
White v Repatriation Commission [2004] FCA 633
Repatriation Commission v Wedekind [2000] FCA 649
REASONS FOR DECISION

26 April 2006

J.W. Constance, Senior Member

Air Marshal Gration AO AFC, Member

INTRODUCTION
1.      Mr Robertson was a member of the Royal Australian Navy from 1969 until 1972. For many years Mr Robertson has suffered a generalised anxiety disorder and he has applied for the payment of medical expenses and a pension on the ground that his condition was caused by his service in the Navy. He is entitled to these benefits if his disorder was either “war-caused” or “defence-caused” within the meaning of the Veterans’ Entitlement Act 1986 (Cth). The decision under review is that his condition was neither war-caused nor defence-caused.
2.      As the Members of the Tribunal disagree on the decision which should be made, the decision of the Tribunal will be in accordance with the decision of the Presiding Member, Senior Member Constance.[1]   The decision under review will be set aside and the matter will be remitted for determination on the basis that Mr Robertson’s generalised anxiety disorder was war-caused.
SENIOR MEMBER CONSTANCE:
[1] Administrative Appeals Tribunal Act 1975 (Cth) s 42(1).
MATERIAL BEFORE THE TRIBUNAL
3.      Mr Robertson left school at age 15 and left home a short time later. He turned 17 on 15 May 1969. On 31 May 1969 he joined the Royal Australian Navy. After enlistment he undertook general recruit training. On 8 September 1969 he was posted to HMAS YARRA.
4.      In 1969 Mr Robertson commenced a defacto relationship with Margaret Robertson. They have 2 children, Stephen born 29 April 1970 and Donna born in January 1972.
5.      On 22 February 1970 Mr Robertson was on board HMAS YARRA when she sailed from Singapore as an escort to HMAS SYDNEY. The vessels entered Vung Tau Harbour, Vietnam at 0630 hours on…

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 Robertson and Repatriation Commission

Details

AGLC: Robertson and Repatriation Commission [2006] AATA 366
Case: [2006] AATA 366
Decision Date: 26 April 2006

CaseChat Overview and Summary

The applicant, Mr Robertson, sought a review of a decision made by the Veterans’ Review Board, which had determined that his generalised anxiety disorder was not caused by his war service. The matter was heard in the Federal Court of Australia. The primary issue before the court was whether Mr Robertson's generalised anxiety disorder was caused by his war service. This involved determining whether the disorder was attributable to a severe psychosocial stressor during his service, as defined by the relevant legislative provisions. Additionally, the court had to ascertain the onset date of the disorder and whether Mr Robertson had rendered operational service.

The court examined the definition of a "severe psychosocial stressor" as outlined in the legislative framework and considered the evidence presented regarding Mr Robertson's service and the circumstances surrounding the onset of his disorder. The court noted that the Veterans’ Review Board had failed to properly consider the evidence and the applicable legal principles. Specifically, the Board did not adequately address whether the events during Mr Robertson’s service constituted a severe psychosocial stressor and whether those events could be considered the cause of his disorder. The court also highlighted that the Board's approach to determining the onset date of the disorder was flawed.

In light of these errors, the court set aside the decision of the Veterans’ Review Board and remitted the matter for reconsideration. The court found that Mr Robertson's generalised anxiety disorder was indeed war-caused, as it was attributable to the severe psychosocial stressors experienced during his service. The court ordered that the matter be returned to the Board for a fresh determination in light of its findings. The decision underscored the importance of correctly applying the statutory criteria when assessing claims related to war-caused conditions.

Orders

Orders of the court

The decision of the Veterans’ Review Board made 27 May 2003 is set aside and the matter is remitted for determination on the basis that Mr Robertson’s generalised anxiety disorder was war-caused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.