Travers and Repatriation Commission - [2005] AATA 170

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 170
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/851

VETERANS' APPEALS DIVISION
)

Re ASHLEIGH TRAVERS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms M J Carstairs, Member
Date28 February 2005
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
....................[Sgd]......................
M J Carstairs
Member

CATCHWORDS
VETERANS' AFFAIRS ‑ veterans’ entitlements - anxiety disorder - alcohol dependence or abuse – gastro-oesophageal reflux – impotence - whether war-caused
Veterans' Entitlements Act 1986 ss 9, 120(1), 120(3), 120(4), 120A(3), 196B(3)
Meehan v Repatriation Commission (2002) 64 ALD 366
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill [2002] FCAFC 192
Stoddart v Repatriation Commission (2003) 74 ALD 366
White v Repatriation Commission [2004] FCA 633
Woodward v Repatriation Commission (2003) 75 ALD 420
REASONS FOR DECISION

28 February 2005 Ms M J Carstairs, Member

1.      This is an application by Ashleigh Travers (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 11 September 2003. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 14 January 2003 that anxiety disorder, gastro-oesophageal reflux, impotence and alcohol dependence or abuse suffered by the applicant were not war-caused.
2.      At the hearing on 18 February 2005 Mr D O'Gorman of counsel instructed by McCallum Mylne Lawyers represented the applicant and Mr J Kelly represented the respondent.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T21), plus exhibits marked A1‑A2 for the applicant and R1-R3 for the respondent.
BACKGROUND
4.      The applicant was born on 1 May 1948 in Geelong, Victoria. After leaving school he partly completed an apprenticeship as a motor mechanic. He was called up for National Service in the Australian Army (the army) and served from 2 October 1968 to 1 October 1970. He completed his recruit training at Puckapunyal after which he joined the Armoured Corps and was posted to A Squadron, 1^st Armoured Regiment, and was allotted for service in Vietnam for the period 10 December 1969 to 10 September 1970. This period is operational service for the purposes of the Veterans' Entitlements Act 1986 (the Act).
5.      On 29 November 2002 the applicant made a claim for disability pension for post traumatic stress disorder, hearing loss and tinnitus, solar keratosis, gastric reflux and impotence. On 14 January 2003 a delegate of the respondent accepted the claims for hearing and solar keratosis but refused the claims for the remaining conditions on the grounds that they were not war-caused. The VRB affirmed the decision in relation to anxiety disorder, gastro-oesophageal reflux, impotence and alcohol dependence or abuse. On 8 October 2003 the applicant lodged an application with the Tribunal for review of the decision of the VRB.
6.      The issues before the Tribunal are what is the appropriate diagnosis for the applicant’s psychiatric condition(s), and whether the psychiatric condition(s), together with gastro-oesophageal reflux, impotence, and…

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 Travers and Repatriation Commission

Details

AGLC: Travers and Repatriation Commission [2005] AATA 170
Case: [2005] AATA 170
Decision Date: 28 February 2005

CaseChat Overview and Summary

The matter before the court involved a claim for veterans' entitlements by Travers, who alleged that his anxiety disorder, alcohol dependence or abuse, gastro-oesophageal reflux, and impotence were caused by his service. The Repatriation Commission was the respondent in this case, and the matter was being heard in the court. The legal issues at hand required the court to determine whether the veteran's conditions were war-caused, thereby qualifying for compensation under the Veterans' Entitlements Act 1986. Specifically, the court needed to consider the statutory provisions of sections 9, 120(1), 120(3), 120(4), 120A(3), and 196B(3) in the context of the veteran's medical evidence and service history.

The court examined the statutory framework, focusing on the definition of "war-caused" in section 9 and the criteria for establishing a connection between the veteran's service and the claimed conditions. It considered previous cases such as Meehan v Repatriation Commission, Repatriation Commission v Deledio, Repatriation Commission v Hill, Stoddart v Repatriation Commission, White v Repatriation Commission, and Woodward v Repatriation Commission, which provided guidance on the interpretation and application of the relevant provisions. The court assessed the medical evidence presented and weighed the veteran's service history to determine if the claimed conditions were war-caused. The court concluded that the veteran had not established a causal link between his service and the claimed conditions, thereby affirming the decision of the Repatriation Commission.

In light of the above, the Tribunal upheld the decision under review. The court found that the veteran had not met the statutory requirements to establish that his conditions were war-caused, and therefore, the claim for veterans' entitlements was dismissed. The decision was based on the court's interpretation of the relevant statutory provisions and the evidence presented. The veteran's claim for compensation was not upheld, and the Repatriation Commission's decision was affirmed.

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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