Legal Research
Cases
Starr and Repatriation Commission

Starr and Repatriation Commission

Case [2004] AATA 1291 3 December 2004

Judicial Review

Natural Justice & Procedural Fairness

Admissibility of Evidence

Expert Evidence

Administrative Law

No judgment structure available for this case.

Type to search within this case.

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1291
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/535
VETERANS' APPEALS DIVISION

Re: ALLAN JOHN STARR
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       Miss E.A. Shanahan, Member
Date:             3 December 2004
Place:            Melbourne
Decision:The Tribunal varies the decision of the Repatriation Commission dated 15 August 2001 to the extent that it finds that:
1.by consent, the condition of chronic gastritis is a war‑caused disease within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (the Act) with effect from 10 October 2000;
2.the applicant’s alcohol abuse and drug abuse are war‑caused within the meaning of the Act;
3.the matter is remitted to the respondent for assessment of rate of pension; and
5.in all other respects, the decision of the Repatriation Commission is affirmed.

(sgd) E.A. Shanahan
Member

VETERANS' AFFAIRS – psychiatric disorder – nature of the psychiatric disorder – time of onset – severe psychosocial stressors – alcohol and drug abuse – whether war‑caused disability
Veterans’ Entitlements Act 1986 ss 9, 120(1), 120(3), 120A
Statements of Principles
Instrument № 76 of 1998 concerning alcohol abuse
Instrument № 78 of 1998 concerning drug dependence or drug abuse
Instrument № 3 of 1999 as amended by Instrument № 54 of 1999
concerning post traumatic stress disorder
Instrument № 1 of 2000 concerning generalised anxiety disorder
Instrument № 75 of 2001 concerning chronic gastritis
Banovich v Repatriation Commission (1986) 69 ALR 395
Benjamin v Repatriation Commission (2001) 70 ALD 622
Byrne v Repatriation Commission (2001) 33 AAR 410
Fox v Repatriation Commission (1997) 45 ALD 317
Re Easton and Repatriation Commission (1987) 12 ALD 777
Re Hornery and Repatriation Commission (1998) 52 ALD 317
Repatriation Commission v Hendy (2002) 76 ALD 47
Sheehy v Repatriation Commission (1996) 66 FCR 569
Starcevich v Repatriation Commission (1987) 18 FCR 221
Van Ewjk v Repatriation Commission [2004] FCA 19
Re Eastern and Repatriation Commission (1987) 12 ALD 778
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Cornelius [2002] FCA 750
Woodward and Repatriation Commission (2003) 200 ALR 332
REASONS FOR DECISION
3 December 2004 Miss E.A. Shanahan, Member
1. This is an application by Allan John Starr (the applicant) for review of a decision by the Repatriation Commission (the respondent) dated 15 August 2001. The respondent accepted the applicant’s claim for sensorineural hearing loss, bilateral tinnitus and gastroesophageal reflux disease and assessed the applicant’s pension rate at 40 per cent of the general rate; but refused the applicant’s claim that his alcohol abuse, post traumatic stress disorder, cannabis abuse and chronic gastritis were war‑caused. On 16 April 2002 the Veterans’ Review Board (VRB) affirmed the respondent's rejection of the claim that alcohol abuse, post traumatic stress disorder (PTSD), cannabis abuse and chronic gastritis were war‑caused as the conditions did not meet the relevant Statements of Principles (SoPs), nor was the VRB satisfied on the evidence that the applicant suffered from PTSD.
2. The applicant was…

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 Starr and Repatriation Commission

Details

AGLC: Starr and Repatriation Commission [2004] AATA 1291
Case: [2004] AATA 1291
Decision Date: 3 December 2004

CaseChat Overview and Summary

The applicant, Allan John Starr, sought review of a decision by the Repatriation Commission, which had rejected his claims for a war-caused disability in respect of post traumatic stress disorder (PTSD), alcohol abuse, drug abuse and chronic gastritis. The Tribunal varied the decision of the Repatriation Commission to the extent that it found that the condition of chronic gastritis was a war-caused disease, that the applicant's alcohol abuse and drug abuse were war-caused and that the matter be remitted to the respondent for assessment of rate of pension. In all other respects, the decision of the Repatriation Commission was affirmed.

The Tribunal considered the evidence of the applicant, two of his fellow sailors, two medical practitioners, a clinical psychologist and a historical research officer. The Tribunal found that the evidence before it supported the hypotheses based on factor 5(b) of SoP 76 of 1998 concerning alcohol abuse and dependence, and factor 5(b) of SoP 78 of 1998 concerning drug dependence and abuse. It found that the applicant's alcohol and drug abuse continued after operational service and the alcohol abuse was a major factor in the motor vehicle accident involving the applicant in 1975. The subsequent events, namely the motor vehicle accident in 1975 and the traumatic amputation of the applicant's two fingers while in private employment in 1992, may well have aggravated both the alcohol and drug abuse. The Tribunal could not be satisfied beyond reasonable doubt that the applicant's alcohol abuse and drug abuse were not a war-caused injury.

The Tribunal found that the psychiatric evidence was conflicting, contradictory and deficient to the extent that neither psychiatrist had turned their minds to all the traumatic episodes the applicant had suffered during operational service and after service. The Tribunal was not satisfied on the balance of probabilities that the applicant suffered from PTSD or generalised anxiety disorder and, therefore, the hypothesis relating to these two diagnoses was rejected.

Orders