Schwan and Repatriation Commission - [2005] AATA 802

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 802
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2004/136

VETERANS' APPEALS DIVISION )

Re GARRY FRANCIS SCHWAN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal The Hon R J Groom (Deputy President)
Date22 August 2005
PlaceHobart

Decision
The Tribunal sets aside the decision of the Veterans’ Review Board of 7 October 2004 and, in substitution therefor, decides that the applicant presently suffers from PTSD and that that condition is a war-caused disease within the meaning of s9 of the Act with effect from and including 27 May 2004.

..............................................
Deputy President

ADMINISTRATIVE APPEALS TRIBUNAL         )
  )          T2004/136
VETERANS’   APPEALS   DIVISION                  )
Re      :          GARRY FRANCIS SCHWAN
  Applicant

And : REPATRIATION COMMISSION
Respondent

CORRIGENDUM [2005] AATA 802
Tribunal        :          The Hon R J Groom (Deputy President)
Date               :          6 September 2005
Place             :          Hobart

The Tribunal amends its decision and reasons for decision published on 22 August 2005 as follows:
The date 27 May 2004 appearing on the decision page and page 12, paragraph 35 should reach 27 May 2003.
………………………….
Deputy President

CATCHWORDS
Veterans’ Affairs – disability pension - applicant rendered operational service with the Australian Army in Vietnam – whether applicant suffering post-traumatic stress disorder (PTSD)– whether a reasonable hypothesis connecting condition to operational service – whether satisfied beyond reasonable doubt that no sufficient ground for determining that applicant’s condition is war caused – decision of VRB set aside.
Veterans’ Entitlements Act 1986 – ss9,20(1)(3), 177(2)
Statement of Principles – No 3 of 1999 as amended by No 54 of 1999
Repatriation Commission v Deledio (1998) 83 FCR 82
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Colin Mack Cooke (1998) 1717 FCA.
Repatriation Commission v Hill (2002) 64 ALD 582
Repatriation Commission v Bendy (1989) 18 ALD 144
Stoddard v Repatriation Commission [2003] FCA 334
REASONS FOR DECISION

22 August 2005 The Hon R J Groom (Deputy President)

1. This is an application to review a decision of the Veterans’ Review Board (“The VRB”) dated 7 October 2004. That decision affirmed a decision of the Repatriation Commission of 12 March 2004 refusing the applicant’s claim that he is suffering a service-related condition of depressive disorder. It is now claimed by the applicant that he is suffering post traumatic stress disorder (PTSD).
2. The hearing of the application was held in Hobart on 21 July 2005. The applicant was represented by Mr C Webster and the respondent by Mr M Castle. Oral evidence was given by the applicant and a psychiatrist, Dr Ian Sale. Several documents were tendered in evidence including the “T” documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975, a witness statement by the applicant dated 11 July 2005 and a medical report by Dr Sale dated 10 January 2005. The “T” documents included two medical reports by Dr I P Burges Watson, psychiatrist, dated 18 July 1994 and 1 October 2003, a report by Dr E V R…

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 Schwan and Repatriation Commission

Details

AGLC: Schwan and Repatriation Commission [2005] AATA 802
Case: [2005] AATA 802
Decision Date: 22 August 2005

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Schwan versus the Repatriation Commission involved the applicant, Schwan, who was seeking a disability pension on the basis that he was suffering from post-traumatic stress disorder (PTSD) as a result of his operational service with the Australian Army in Vietnam. The dispute centred on whether Schwan's condition was reasonably attributable to his service, and whether the Repatriation Commission was justified in concluding that his PTSD was not war-caused. The Veterans' Review Board had previously dismissed Schwan's application, a decision which he sought to overturn in the Federal Court.

The primary legal issues before the court were whether there was a reasonable hypothesis connecting Schwan's PTSD to his operational service, and if the Commission was justified in concluding that there was no sufficient ground to determine that his condition was war-caused. The court was required to examine the evidence presented and the relevant statutory provisions, particularly sections 9 and 20(1)(3) of the Veterans' Entitlements Act 1986, as well as the applicable Statement of Principles. The court also needed to consider previous cases such as Repatriation Commission v Deledio, Benjamin v Repatriation Commission, and Repatriation Commission v Hill, which provided guidance on the application of the legislation and the principles relevant to the determination of war-caused conditions.

The court found that there was a reasonable hypothesis linking Schwan's PTSD to his service in Vietnam, as supported by the evidence and the Statement of Principles. The court held that the Repatriation Commission's decision was not supported by the evidence, as there was insufficient basis to conclude that Schwan's PTSD was not war-caused. The court set aside the decision of the Veterans' Review Board and substituted its own decision, recognising that Schwan's PTSD was a war-caused disease within the meaning of section 9 of the Act. This determination was effective from 27 May 2004, the date from which Schwan's condition was recognised as war-caused.

The orders of the court were that the decision of the Veterans' Review Board dated 7 October 2004 was set aside, and in its place, the court decided that Schwan presently suffered from PTSD, which was a war-caused disease under the Veterans' Entitlements Act 1986. This ruling had significant implications for Schwan's eligibility for a disability pension, as it established that his PTSD was indeed linked to his service in Vietnam.

Orders

Orders of the court

The Tribunal sets aside the decision of the Veterans’ Review Board of 7 October 2004 and, in substitution therefor, decides that the applicant presently suffers from PTSD and that that condition is a war-caused disease within the meaning of s9 of the Act with effect from and including 27 May 2004.

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		GARRY FRANCIS SCHWAN