Sullivan and Repatriation Commission - [2008] AATA 1140

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1140
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3079

VETERANS’ AFFAIRS DIVISION )

Re WILLIAM SULLIVAN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr S. Webb, Member
Date19 December 2008
PlaceCanberra

Decision
The decision under review is affirmed.

..............Signed................................
Mr S. Webb, Member

CATCHWORDS
VERTERANS' ENTITLEMENTS - operational service in Vietnam – Defence service - claim for anxiety disorder and depressive disorder – Defence service claim conceded – diagnosis of post traumatic stress disorder asserted – diagnosis not made out – cyclothymic disorder – generalised anxiety disorder – no reasonable hypothesis connecting these conditions to operational service – decision affirmed
Veterans' Entitlements Act 1986 ss 9, 70, 119, 120, 120A
Peacock v Repatriation Commission (2007) 161 FCR 256
Repatriation Commission v Warren [2008] FCAFC 64
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Bey (1997) 79 FCR 364,
Repatriation Commission v Delidio (1998) 83 FCR 82
Dunlop v Repatriation Commission [2003] FCAFC 201
East v Repatriation Commission (1987) 16 FCR 517
Connors v Repatriation Commission (2000) 59 ALD 61
Mines v Repatriation Commission (2004) 86 ALD 62
Masliczek v Repatriation Commission [2008] FCA 1535
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Norton [2008] FCA 1132
REASONS FOR DECISION

19 December 2008 Mr S. Webb, Member

1.      William Sullivan served in the Royal Australian Air Force and was posted as a cook to the Australian base at Vung Tau in Vietnam. Over time he has complained of psychiatric symptoms and has lodged a number of claims. This application concerns one such claim that Mr Sullivan’s anxiety and depression was caused by his service in the RAAF, or by his operational service in Vietnam.
2.      At the outset, Mr Sullivan’s representative, Mr John Orr, informed me that the case concerned Post Traumatic Stress Disorder (PTSD) and related sequellae within the terms of Statement of Principles (SoP) Number 5 of 2008 in relation to the period of Mr Sullivan’s operational service, which is not disputed. In Mr Orr’s submission, if PTSD is not established then that is the end of the matter, no other SoP applies and nothing further is pressed. This concession is attended by difficulty. Mr Sullivan’s claim concerns Anxiety Disorder and Depressive Disorder.[1] There are in force SoPs concerning each of these conditions. Mr Orr’s contention is that the correct diagnosis is PTSD, in consequence of which the Tribunal need not concern itself with any other condition. Mr Orr’s purported concession, however, does not relieve the Tribunal of its obligation to make the correct or preferable decision on all of the material placed before it.[2]
[1] T21 folios 246 and 247 and T22 folios 255 and 256.
[2] Peacock v Repatriation Commission (2007) 161 FCR 256 at [23]; Repatriation Commission v Warren [2008] FCAFC 64 at [78].
3.      It is apparent to me that this dispute has at its heart three key questions concerning Mr Sullivan’s claimed psychiatric disease; diagnosis, clinical onset…

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 Sullivan and Repatriation Commission

Details

AGLC: Sullivan and Repatriation Commission [2008] AATA 1140
Case: [2008] AATA 1140
Decision Date: 19 December 2008

CaseChat Overview and Summary

In the case of Sullivan and Repatriation Commission, the applicant sought compensation for anxiety disorder and depressive disorder, which he claimed arose from his service in Vietnam. The matter was heard in the Federal Court of Australia. The central issue was whether the applicant's psychiatric conditions were connected to his operational service in Vietnam.

The court had to determine whether the applicant's claims for anxiety disorder and depressive disorder were service-related. The applicant conceded that his claim for anxiety disorder was not related to his service, but he argued that his depressive disorder was. The court also considered whether the applicant's later diagnosis of post-traumatic stress disorder was service-related. The court was required to assess the evidence and decide whether there was a reasonable hypothesis connecting the applicant's conditions to his operational service.

The court found that the applicant's claims for anxiety disorder and depressive disorder were not related to his service in Vietnam. The court held that there was no reasonable hypothesis connecting the applicant's cyclothymic disorder and generalised anxiety disorder to his service. The court relied on previous cases to support its findings, concluding that the decision of the Repatriation Commission was correct. The court affirmed the decision under review, dismissing the applicant's appeal.

Orders

Orders of the court

The decision under review is affirmed.

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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