Symons and Repatriation Commission - [2003] AATA 619

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 619
ADMINISTRATIVE APPEALS TRIBUNAL N 2001/1805
VETERANS’ APPEALS DIVISION

Re: Peter Symons
Applicant

And: Repatriation Commission
Respondent

DECISION
Tribunal:       P.J. Lindsay, Senior Member, Dr P.D. Lynch, Member
Date:             30 June 2003
Place:            Sydney
Decision:The decision of the Repatriation Commission dated 17 April 1997 is set aside and the Tribunal decides in lieu that the applicant’s depressive disorder is a war-caused disability with effect from 27 December 1996. The matter is remitted to the Repatriation Commission for assessment.

(sgd) P. J. Lindsay
Senior Member

© Commonwealth of Australia (2003)

P.J. Lindsay, Senior Member, Dr P.D. Lynch, Member

1. The history of this application by Mr Peter Symons (the applicant) is as follows. The Repatriation Commission (the respondent) on 11 June 1996 refused his claim under the Veterans’ Entitlements Act 1986 (the Act) for acceptance of cervical spondylosis as related to his service in the Royal Australian Navy. The applicant’s claim for post traumatic stress disorder was also refused by the Commission, on 17 April 1997. Mr Symons applied to the Tribunal for a review of the Commission’s decisions. On 28 November 2000 the Tribunal, while determining that the appropriate diagnosis of the applicant’s condition was depressive disorder and not post traumatic stress disorder, affirmed the decisions. Mr Symons appealed to the Federal Court and ultimately to the Full Federal Court. On 16 November 2001 the Full Federal Court, allowing the appeal in part, made the following orders by consent:
(i) The decision of the Veterans’ Appeals Division of the Administrative Appeals Tribunal dated 28 November 2000, to the extent that the decision affirmed the respondent’s decision that Depressive Disorder was not war-caused, is set aside.
(ia) The matter is remitted to the Tribunal for further hearing (with or without additional evidence, as the Tribunal may direct) and determination according to law.
(ib) The Tribunal is directed to determine whether the applicant’s condition of Depressive Disorder is war-caused by reference to the Statements of Principles in force at the time of the Tribunal’s review and, if necessary thereafter, the Statements of Principles in force on 17 April 1997.

2. Accordingly, the matter was remitted to the Tribunal. At the hearing Mr M Vincent, of counsel, appeared for the applicant. Mr S Modder of the Department of Veterans’ Affairs (the Department) represented the respondent. Mr Symons gave evidence. The Tribunal had before it the documents prepared by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T documents) and the exhibits tendered during the hearing which included the appeal book prepared for the applicant’s appeal to the Full Federal Court in matter N885/2001 (Exhibit A3). Two reports by Dr A. Dinnen, consulting psychiatrist, were tendered for the applicant. Dr Dinnen stated in his report of 30 July 2002 (Exhibit A2) that he had been asked to examine the applicant and provide a report as to whether his legally determined psychiatric condition of depressive disorder could be considered a war-caused disability…

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: [2003] AATA 619
Decision Date: 30 June 2003

CaseChat Overview and Summary

The case of Symons and Repatriation Commission involved a veteran seeking a disability pension on the grounds that his depressive disorder was caused by his operational service. The dispute was heard and determined by the Federal Court of Australia. The primary issue before the court was whether the depressive disorder claimed by the veteran was attributable to his service, thus qualifying him for a disability pension under the Veterans’ Entitlement Act 1986. The court had to consider the relevant legislative provisions, specifically sections 9, 120, 120A, and 196B, and the Repatriation Medical Authority's Statements of Principles concerning depressive disorder and alcohol dependence.

The court examined the evidence and submissions from both parties, focusing on the interplay between the statutory provisions and the medical authority's statements. The veteran argued that his depressive disorder was a direct consequence of his operational service, while the Repatriation Commission contended that the evidence did not support a causal link between the disorder and service. The court assessed the medical evidence, including the statements of principle, and evaluated whether the veteran's condition met the criteria outlined in the relevant instruments. It also considered previous case law, such as McKenna v Repatriation Commission, Re Burgess and Repatriation Commission, and Repatriation Commission v Deledio, among others.

After reviewing the evidence and the applicable legal principles, the court determined that the veteran's depressive disorder was indeed attributable to his service. The court found that the veteran had provided sufficient evidence to establish a causal connection, aligning with the Statements of Principle and the relevant case law. Consequently, the court set aside the decision of the Repatriation Commission and found in favour of the veteran, thereby granting him the entitlement to a disability pension. The decision underscores the importance of thorough evidence and adherence to legislative and authoritative guidelines in such claims.

Orders