Seamons and Repatriation Commission (Veterans' entitlements) - [2023] AATA 3856

Seamons and Repatriation Commission (Veterans' entitlements) [2023] AATA 3856 (24 November 2023)
ReviewNumber: 2019/2751, 2019/2752
Division: VETERANS' APPEALS DIVISION
File Number(s): 2019/2751 & 2019/2752
Re:Andrew Seamons

APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President B W Rayment OAM KC
Date:24 November 2023
Place:Sydney

The decision under review is set aside and the matter is remitted to the Respondent for computation of the benefits payable to the applicant, with the direction that the applicant’s conditions of hepatitis C, post-traumatic stress disorder and depression are related to his service under the Veterans’ Entitlements Act 1986 (Cth).
...................................[SGD].....................................
Deputy President B W Rayment OAM KC
CATCHWORDS
VETERAN’S ENTITLEMENTS – whether conditions are related to service – hepatitis C, post-traumatic stress disorder and depression – Royal Australian Navy – decisions under review set aside and remitted
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115
SECONDARY MATERIALS
Statement of Principles concerning Hepatitis C (Balance of Probabilities) (No. 14 of 2018)
REASONS FOR DECISION
Deputy President B W Rayment OAM KC
24 November 2023

Two reviewable decisions of the Veterans’ Review Board (VRB) dated 3 April 2019 are before the Tribunal for review.
The decisions affirmed decisions of the Respondent dated 30 August 2017 and 28 March 2018 that the applicant’s conditions of hepatitis C, post-traumatic stress disorder (PTSD) and depression were not related to his service with the Royal Australian Navy. That service commenced on 1 June 1987 and concluded on 24 August 1995. The earlier decision of the Respondent in 2017 reached similar conclusions about some of the matters discussed in the 2018 decision, so the two reviews have been heard together. The VRB decisions of

3 April 2019 are more comprehensive than the earlier decisions and also were given at a time when the Statement of Principles concerning Hepatitis C (Balance of Probabilities) (No. 14 of 2018) was in force. The Tribunal is similarly required to have regard to that statement of principles and other relevant statements of principles.
Mr Seamons was diagnosed with hepatitis C while he was still in service in March 1992. The applicant joined the Navy at the age of 27 years and was medically discharged when he was 35. Today he is about 64. He has had two liver transplants, the first in 2013 and the second in 2017. He was very distressed as a result of having contracted the disease and as a result, suffered the two mental health conditions (PTSD and depression). In 1987, when he joined the Navy, he was tested for hepatitis B and human immunodeficiency virus (HIV). These tests were negative.
At that time the hepatitis C virus and its genetic structure was not yet discovered and was not announced until 1989. Antibody testing for hepatitis C was rapidly taken up in Australia in 1990, as appears from the report of Dr Flecknoe-Brown, a doctor who has been in a private haematology…

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.

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Details

Case: [2023] AATA 3856
Decision Date: 24 November 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Seamons and the Repatriation Commission concerning a veteran's claim for entitlements. The dispute centred on whether the veteran's conditions of hepatitis C, post-traumatic stress disorder (PTSD), and depression were related to their service in the Royal Australian Navy. The AAT reviewed decisions made by the Repatriation Commission regarding these claims.

The primary legal issues before the Tribunal were to determine whether the veteran's diagnosed conditions of hepatitis C, PTSD, and depression were war-caused or defence-caused within the meaning of the relevant legislation. This involved assessing the evidence presented to establish a causal link between the veteran's naval service and the onset or aggravation of these conditions.

Deputy President B W Rayment OAM KC P found that the decisions under review were not supported by adequate reasoning or evidence. The Tribunal concluded that the Commission had failed to properly consider all relevant evidence and apply the correct legal principles in assessing the veteran's claims. Consequently, the Tribunal set aside the previous decisions and remitted the matter back to the Repatriation Commission for reconsideration.

Orders