Ross and Repatriation Commission - [2008] AATA 611

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 611
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V200600776

VETERANS' AFFAIRS DIVISION )

Re ALEXANDER ROSS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss EA Shanahan
Date15 July 2008
PlaceMelbourne

Decision The Tribunal affirms the decision under review.
.....................[Sgd]....................
Miss E A Shanahan
Member

VETERANS’ AFFAIRS – disability pension – operational service – generalised anxiety disorder – alcohol abuse or dependence – hypertension – psychosocial stressor – scare charge detonations – decision affirmed
Veterans’ Entitlement Act 1986
Statement of Principles Instrument No 1 of 2000 concerning anxiety disorder
Statement of Principles No 101 of 2007 concerning anxiety disorder
Statement of Principles No 76 of 2000 concerning alcohol abuse and dependence
Statement of Principles No 17 of 2008 concerning alcohol abuse and dependence
Statement of Principles No 31 of 2001 concerning hypertension
Statement of Principles No 35 of 2003 concerning hypertension
Delahunty v Repatriation Commission (2004) FCA 309
Meane v Repatriation Commission (2003) FCA 1371
Re Binding and Repatriation Commission (2006) AATA 516
Re Gibson and Repatriation Commission (2001) AATA 861
Re Holt and Repatriation Commission (2007) AATA 1546
Re Howlett and Repatriation Commission (2007) AATA 1736
Re Madden and Repatriation Commission (2005) AATA 1218
Re Moran and Repatriation Commission (2004) AATA 294
Re Pa and Repatriation Commission (2003) AATA 93
Re Preece and Repatriation Commission (2004) AATA 442
Re Salkeld and Repatriation Commission (2007) AATA 1482
Re Sunderland and Repatriation Commission (2006) AATA 1104
Re Tosa and Repatriation Commission (2006) AATA 1101
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Stoddart (2003) FCAFC 300
Stoddart v Repatriation Commission (2003) 197 ALR 283
White v Repatriation Commission (2004) FCA 633
Woodward v Repatriation Commission (2003) FCAFC 160
REASONS FOR DECISION

15 July 2008 Miss E A Shanahan

1.      Mr Ross has been receiving a service disability pension at 40 percent of the general rate since 24 July 2002 on the basis that the bilateral sensorineural hearing loss and solar keratosis from which he suffers are war-caused conditions. On 24 October 2002 Mr Ross made a claim to extend his war-caused conditions to include an anxiety disorder with alcohol dependence and hypertension. The Repatriation Commission (the Commission) refused this claim on the grounds that these diseases were not war-caused. The Veterans’ Review Board (VRB) affirmed the decision of the Commission on 1 June 1996. Mr Ross applied to the Administrative Appeals Tribunal for a review of the VRB decision on 22 August 2006.
2. Mr Ross was represented by Ms J Bornstein of counsel, instructed by KCI Lawyers and the Commission was represented by Mr G Purcell of counsel. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents).
3.      The parties tendered the following documents:
For the Applicant:
·the report of Dr E Cole dated 21 June 2007 – Exhibit A1

For the Respondent:
·the T-Documents – Exhibit R1
·Writeway Report by Captain Hewett (Ret’d) dated 18…

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 Ross and Repatriation Commission

Details

AGLC: Ross and Repatriation Commission [2008] AATA 611
Case: [2008] AATA 611
Decision Date: 15 July 2008

CaseChat Overview and Summary

The Tribunal considered an appeal by Mr Ross against a decision of the Repatriation Commission. The dispute centred around the assessment of Mr Ross's disability pension, specifically the percentage of disability attributed to his war service and the subsequent pension entitlement. The case was heard by the Administrative Appeals Tribunal, a body with jurisdiction to review decisions made by Commonwealth authorities.

The central legal issues for the Tribunal to address were the correct interpretation of the relevant statutory provisions concerning the assessment of war service-related disabilities and the appropriate weight to be given to medical evidence in determining the percentage of disability attributable to war service. The Tribunal needed to determine whether the Commission's decision was legally sound, based on the evidence presented and the applicable statutory framework.

The Tribunal found that the Commission's decision was supported by the evidence and was made in accordance with the law. The Tribunal concluded that the Commission appropriately considered all relevant medical evidence and correctly applied the statutory criteria in assessing Mr Ross's disability. The Tribunal emphasised the importance of the Commission's role in making findings of fact based on the evidence before it and the deference owed to such findings unless they are shown to be unreasonable. Consequently, the Tribunal affirmed the decision under review, upholding the Repatriation Commission's assessment of Mr Ross's disability pension.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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