Tozer and Repatriation Commission - [2006] AATA 1101

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 1101
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2006/107

VETERANS' APPEALS DIVISION )

Re BARRY TOZER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)
Date20 December 2006
PlaceAdelaide

Decision
The Tribunal affirms the decision under review.

..............................................
J G SHORT
(Member)

CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – operational service – claim that generalised anxiety disorder; alcohol dependence or abuse and hypertension are war-caused – consideration of statement of principles – US aircraft testing bomb in Vung Tau Harbour – decision affirmed
Veterans’ Entitlements Act 1986 ss 5B, 6, 9, 13, 20, 120(1), 120(3), 120A, 196A and 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 27
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Lees v Repatriation Commission (2002) 125 FCR 331
Stoddart v Repatriation Commission (2003) 74 ALD 366
Hill v Repatriation Commission [2005] FCAFC 23
Statement of Principles Instrument No 35 of 2003
Statement of Principles Instrument No 3 of 2004
Statement of Principles Instrument No 76 of 1998
Statement of Principles Instrument No 1 of 2000
REASONS FOR DECISION

20 December 2006   Mr J G Short (Member)

1.      Barry Tozer served in the Royal Australian Navy (the Navy) from 25 July 1964 until 1 August 1973. His operational service, which was also eligible service, included service aboard HMAS Yarra from 22 February 1970 until 1 March 1971. Mr Tozer also had a period of eligible defence service from 7 December 1972 until 1 August 1973.
2.      On 23 May 2005 Mr Tozer lodged a claim for acceptance of hypertension and emotional disorder, later diagnosed as hypertension and anxiety disorder. The claim was rejected by the respondent (the Commission) on 6 July 2005. On 31 January 2006, the Veterans’ Review Board (VRB) varied the diagnosis of anxiety disorder to generalised anxiety disorder and alcohol dependence and affirmed the decision as varied.
issues before the tribunal
3.      The issue before me is whether the abovementioned conditions are war-caused for the purposes of the Veterans’ Entitlements Act 1986 (the VE Act). The parties have accepted the diagnoses of Mr Tozer’s conditions, that is conditions of hypertension, generalised anxiety disorder and alcohol dependence.
4. It is common ground that if Mr Tozer is successful in his claim the earliest date of effect, pursuant to s 20 of the VE Act, would be 23 February 2005.
mr tozer’s assertions
5.      Mr Tozer asserts in the present proceedings that a stressful event occurred during his operational service, particularly his service upon HMAS Yarra during that ship’s period in Vung Tau Harbour on 27 February 1970, which caused both or either of his conditions of alcohol dependence and generalised anxiety disorder, or in the alternative, that this stressor caused one of those conditions, which in turn caused…

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 Tozer and Repatriation Commission

Details

AGLC: Tozer and Repatriation Commission [2006] AATA 1101
Case: [2006] AATA 1101
Decision Date: 20 December 2006

CaseChat Overview and Summary

The case of Tozer and the Repatriation Commission involved the appellant, who sought to have his generalised anxiety disorder, alcohol dependence or abuse, and hypertension recognised as war-caused. The dispute was heard in the Administrative Appeals Tribunal, with the Repatriation Commission as the respondent. The appellant argued that these conditions arose from his operational service, particularly due to the stress of being involved in the testing of a US aircraft bomb in Vung Tau Harbour. The Tribunal was required to decide whether these conditions met the criteria for war-caused entitlements under the Veterans' Entitlements Act 1986.

The key legal issues revolved around whether the appellant’s conditions could be linked to his operational service and if they were covered by the relevant statements of principles. The Tribunal examined various legislative provisions and considered past cases such as Repatriation Commission v Deledio, Bull v Repatriation Commission, and Hardman v Repatriation Commission. These precedents provided guidance on how the Tribunal should assess claims for war-caused conditions and the applicability of specific statements of principles.

In its reasoning, the Tribunal noted that while the appellant’s service involved significant stress, there was insufficient evidence to directly link his conditions to the specific event of the bomb testing. The Tribunal also considered the relevant statements of principles, particularly those relating to mental health and stress-related conditions. After careful analysis, the Tribunal concluded that the appellant’s conditions were not sufficiently proven to be war-caused under the applicable legal framework. As a result, the Tribunal affirmed the decision of the Repatriation Commission.

The final orders of the Tribunal affirmed the decision under review, meaning the appellant's claim for war-caused entitlements was dismissed. The Tribunal’s decision was based on the lack of sufficient evidence connecting the appellant’s conditions to his operational service and the specific event in question. This case underscores the stringent requirements for proving war-caused conditions and the importance of detailed evidence in veterans' entitlement claims.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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