Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 756
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/784
VETERANS' APPEALS DIVISION )
Re TONY SPEK Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy, Member Date9 August 2005
PlaceBrisbane
Decision The Tribunal finds that:
(a) The applicant suffers from the conditions of Borderline Personality Disorder and Generalised Anxiety Disorder (not defence caused); and the applicant suffers from Dysthymia (defence caused); and
(b) Notwithstanding the findings in (a) above, the decision under review is affirmed as section 70(9) of the Veterans’ Entitlements Act 1986 operates to prohibit Mr Spek from compensation for his condition of Dysthymia.
..............................................
Member
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No Q2002/784
VETERANS’ APPEALS DIVISION ) Re TONY SPEK Applicant
And
REPATRIATION COMMISSION
Respondent
CORRIGENDUM
Tribunal Dr KS Levy, Member Date4 January 2006
PlaceBrisbane
I DIRECT that:
(a)paragraph 23 of the Tribunal’s reasons for decision as presently numbered be amended so that the second last sentence reads:
“In other words, the fact that it was on the official record, it could not be removed.”;
(b)paragraph 80 of the Tribunal’s reasons for decision as presently numbered be amended so that the word “Re” in Re Measures and Repatriation Commission (2003) AATA 909 be removed and that the words “the comments” appearing in the next sentence be removed; and
(c)that the reasons for decision should commence at paragraph 1 and not at paragraph 2 as presently shown.
KS Levy
Member
CATCHWORDS
VETERANS’ AFFAIRS – s70(9)Veteran’s Entitlement Act – Borderline Personality Disorder – Dysthymia – defence caused injury – depressive disorder – personality disorder – anxiety disorder – decision affirmed.
Veterans’ Entitlements Act 1986
Defence Force Discipline Act 1982
Army Act 1880 (UK).Benjamin v Repatriation Commission (2003) 70 ALD 622
Repatriation Commission V Hancock (2003) FCA 711
Fogarty & Repatriation Commission (2003) FCAFC 136
Lees and Repatriation Commission (2002) 125 FCR 331
White v Repatriation Commission [2004] FCA 633
Hillier and Repatriation Commission [2004] AATA 897.
Stonehouse v Repatriation Commission [2004] AATA 707
Repatriation Commission v Law (1980) 31 ALR 140 at 149).Repatriation Commission v Stoddart [2003] FCA 334
Re Nelson and Repatriation Commission (1988) 15 ALD 49
Re Lester and Repatriation Commission (1991) 23 ALD 69
McPherson v Repatriation Commission (1989) 87 ALR 275
Repatriation Commission v Levi (1994) 61 FCR 189
Re Measures and Repatriation Commission (2003) AATA 909.REASONS FOR DECISION
9 August 2005 Dr KS Levy, Member 2. The applicant, Tony Spek, has applied under section 29(1) of the Administrative Appeals Tribunal Act 1975 for review of a decision of the Veteran’s Review Board dated 18 June 2002.
3. That decision made a finding of a diagnosis of anxiety disorder but affirmed the rest of the original decision which determined that spondylolisthesis at L5/S1 and depressive disorder were not defence caused within the meaning of section 70 of the Veterans’ Entitlements Act 1986 (the Act).
4. On 28 June 2004, the application withdrew the aspect…
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- AGLC
- Spek and Repatriation Commission [2005] AATA 756
- Case
- [2005] AATA 756
- Decision Date
CaseChat Overview and Summary
The primary legal issues addressed by the court involved interpreting section 70(9) of the Veterans' Entitlements Act, which excludes compensation for psychiatric disorders unless they are directly attributable to service. The court had to discern whether Dysthymia, which Spek claimed was caused by his service, qualified under this exclusion. Additionally, the court examined if the applicant's other conditions, Borderline Personality Disorder and Generalised Anxiety Disorder, warranted compensation under the Act.
The Tribunal found that Spek suffered from Borderline Personality Disorder and Generalised Anxiety Disorder, which were not attributable to his service. However, regarding Dysthymia, the Tribunal concluded that it was linked to his service and thus compensable under the Act. Despite these findings, the Tribunal upheld the Commission's decision not to award compensation for Dysthymia, citing the exclusion in section 70(9) of the Veterans' Entitlements Act. The Tribunal reasoned that the statutory exclusion applied, overriding any other considerations of the applicant's conditions.
The Tribunal's decision was upheld, affirming the Repatriation Commission's denial of compensation for Dysthymia due to the statutory exclusion. The applicant's other conditions, not subject to the exclusion, were acknowledged but did not result in a change to the overall decision.
Orders
Orders of the court
The Tribunal finds that:
(a) The applicant suffers from the conditions of Borderline Personality Disorder and Generalised Anxiety Disorder (not defence caused); and the applicant suffers from Dysthymia (defence caused); and
(b) Notwithstanding the findings in (a) above, the decision under review is affirmed as section 70(9) of the Veterans’ Entitlements Act 1986 operates to prohibit Mr Spek from compensation for his condition of Dysthymia.
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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