Robertson and Repatriation Commission - [2004] AATA 1143

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1143
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/298

VETERANS' APPEALS DIVISION )

Re JOHN MARTIN ROBERTSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal REAR ADMIRAL A R HORTON AO
Date 3 November 2004
PlaceCanberra

Decision The decision under review, that the Applicant’s Generalised Anxiety Disorder is not related to his service is affirmed. In the alternate, the Tribunal finds that the Applicant was disadvantaged by an inability to obtain appropriate clinical management in respect of his anxiety disorder and the matter is referred to the Respondent for assessment
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Rear Admiral AR Horton AO, Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – disability pension – claim for anxiety disorder arising from service – inability to obtain appropriate clinical management – RAN service – operational service in Vietnam in HMA ships Yarra and Parramatta – necessity to meet relevant Statement of Principles – reasonable hypothesis – decision under review affirmed – in the alternate, the Tribunal finds that the Applicant was disadvantaged by an inability to obtain appropriate clinical management.
Veterans’ Entitlements Act 1986 – sections 6, 9, 13(1), 120(1), 120(3), 120(4), 120A, 196B(2)
Statement of Principles No 1 and No 2 of 2000
Byrnes v Repatriation Commission (1993) 177 CLR 564
Stoddart v Repatriation Commission (2003) 77 ALD 67
Repatriation Commission v Deledio (1998) 83 FCR 82
Woodward v Repatriation Commission (2003) 75 ALD 420
Delahunty v Repatriation Commission [2004] FCA 309
White v Repatriation Commission [2004] FCA 633
Repatriation Commission v Yates (1995) 38 ALD 80
REASONS FOR DECISION

3 November 2004 REAR ADMIRAL A R HORTON AO

1.      This is an application to review a decision of a delegate of the Repatriation Commission (“the Respondent”) dated 27 August 2002, affirmed on review by the Veterans’ Review Board (“VRB”) on 27 May 2003, that rejected a claim by Mr John Martin Robertson (“the Applicant”) for anxiety disorder.
2. At a hearing before the Administrative Appeals Tribunal (“the AAT”) on 10 and 11 August 2004, Mr Robertson was represented by Mr A Cooley of counsel, being instructed by Mr P Bussoletti of Bussoletti Lawyers. Mr N Bunn, advocate, represented the Respondent. The Tribunal took into evidence the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, (“the T Documents”) and the documents listed in the attachment. The Tribunal heard evidence from Mr Robertson, his wife Mrs Margaret Robertson, Dr Brian White, Psychiatrist, and Commodore Phillip Mulcare RAN (Rtd), as well as by telephone from Dr Michael Robertson, Psychiatrist.
3.      At the commencement of the hearing, the parties agreed that Mr Robertson has a condition of anxiety disorder and that the clinical onset was in the early 1970s. The predominant issue before the Tribunal, as stated by Mr Cooley, is whether the condition of anxiety disorder arose from Mr Robertson’s naval service. Should the Tribunal reach a decision that anxiety disorder did not arise from naval service, then the Respondent would raise a second hypothesis…

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 [2004] AATA 1143
Case: [2004] AATA 1143
Decision Date: 3 November 2004

CaseChat Overview and Summary

The matter before the court involved a claim for a disability pension by an applicant who sought compensation for a generalised anxiety disorder arising from his service in the Royal Australian Navy (RAN). The applicant had served in Vietnam on HMA ships Yarra and Parramatta. The Repatriation Commission had rejected the claim, prompting the applicant to seek judicial review. The applicant argued that his condition was related to his service and that he had been disadvantaged by an inability to obtain appropriate clinical management. The Commission, in turn, maintained that the applicant's condition did not meet the relevant criteria under the Veterans’ Entitlements Act 1986.

The court was required to determine whether the applicant's generalised anxiety disorder was related to his service under the applicable provisions of the Veterans’ Entitlements Act. This involved examining whether the applicant's condition was linked to his operational service and whether it met the criteria outlined in the relevant Statement of Principles. Furthermore, the court had to assess whether the applicant had been disadvantaged by an inability to obtain appropriate clinical management, which might have impacted his ability to manage his condition.

The court examined the relevant legal principles and case law to determine if the applicant's condition was related to his service. It noted that for a condition to be related to service, it must have arisen out of that service and be connected to it. The court found that the applicant's condition did not meet the reasonable hypothesis test required under the relevant Statement of Principles. The court also considered the applicant's argument regarding the disadvantage caused by an inability to obtain appropriate clinical management but found that this did not alter the outcome, as the primary issue was the connection between the condition and the service.

The decision under review, affirming that the applicant's generalised anxiety disorder was not related to his service, was upheld. However, in the alternative, the court found that the applicant was indeed disadvantaged by an inability to obtain appropriate clinical management in respect of his anxiety disorder. Consequently, the matter was referred to the Repatriation Commission for further assessment in light of this finding.

Orders

Orders of the court

The decision under review, that the Applicant’s Generalised Anxiety Disorder is not related to his service is affirmed. In the alternate, the Tribunal finds that the Applicant was disadvantaged by an inability to obtain appropriate clinical management in respect of his anxiety disorder and the matter is referred to the Respondent for assessment

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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VETERANS' APPEALS DIVISION		)
Re		JOHN MARTIN ROBERTSON