Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 840
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4853
VETERANS' APPEALS DIVISION ) Re WALTER ALLEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr K S Levy, RFD, Senior Member Date29 October 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review. .....................[Sgd].........................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Incapacity payment – Applicant’s alcohol abuse and anxiety disorder related to operational service – No clinical onset of psychiatric condition within 5 years after the date of the incident – Applicant’s case does raise a hypothesis which could connect present conditions with service – Application of relevant statements of principles – Hypothesis raised is not a reasonable one – Decision under review affirmed.
Evidence Act 1995 (Cth) s 140
Veterans’ Entitlements Act 1986 (Cth) s 120A and s 120B
Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362
Bull v Repatriation Commission (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) 175 CLR 408
Cooke v Repatriation Commission (1997) 45 ALD 205
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Repatriation Commission v Bey (1997) 149 ALR 721
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Stoddart [2003] FCAFC 300
White v Repatriation Commission [2004] FCA 633
Woodward v Repatriation Commission [2003] FCAFC 160
REASONS FOR DECISION
29 October 2010 Dr K S Levy, RFD, Senior Member INTRODUCTION
1. The applicant Walter Michael Allen, a former member of the Royal Australian Navy (“RAN”) applied for medical treatment and pension for incapacity arising from anxiety disorder and alcohol abuse. Mr Allen makes this claim on the basis that both of these conditions were related to his operational service in the RAN. His application was refused by the Repatriation Commission on 3 January 2008. On review by the Veterans’ Review Board (“VRB”), his application was reconsidered but the decision of the Repatriation Commission was affirmed on 12 June 2008.
2. Mr Allen has appealed to this Tribunal. He was represented by Counsel. The matter was heard on 16 October 2009, 26 and 27 May 2010 and 2 June 2010.
ISSUES
3. The issues to be determined by the Tribunal are:
(a)Does the applicant suffer anxiety disorder which is attributable to Mr Allen’s war service? And,
(b)Is his alcohol abuse attributable to his war service?
EVIDENCE
4. The Tribunal had considerable documentary evidence which had been available to the Repatriation Commission and the VRB in considering the applicant’s claims. The Tribunal also has an updated statement of the applicant and of other witnesses in support of the applicant’s claim. In addition, reports by Writeway Research Service Pty Ltd have been filed on behalf of the respondent and research of relevant records and literature has been provided by Dr Albert Palazzo in support of the applicant’s case. Oral evidence was received from Mr Allen, Mr G W Scown and Dr Palazzo for the applicant. The authors of reports from Writeway Research Service Pty Ltd were also…
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- AGLC
- WALTER ALLEN and REPATRIATION COMMISSION [2010] AATA 840
- Case
- [2010] AATA 840
- Decision Date
CaseChat Overview and Summary
The Tribunal considered the applicant's hypothesis that his current conditions were related to his service, but found it was not a reasonable one. The Tribunal held that while the applicant's case did raise a hypothesis connecting his present conditions with his service, it was not a reasonable one under the relevant statements of principles. The Tribunal applied the Briginshaw v Briginshaw standard of proof, which requires the primary decision-maker to be satisfied that the hypothesis is more probable than not. The Tribunal found that the applicant's evidence did not meet this standard, and therefore, his hypothesis was not reasonable. The Tribunal also considered relevant case law, such as Bull v Repatriation Commission and Bushell v Repatriation Commission, which support the requirement for a reasonable hypothesis connecting the applicant's current conditions to his service.
Following its reasoning, the Tribunal affirmed the decision under review, dismissing the applicant's claim for incapacity payment. The Tribunal found that the applicant's hypothesis connecting his current conditions to his service was not a reasonable one, and therefore, he did not meet the criteria for incapacity payment. The Tribunal's decision was based on the evidence presented and the relevant statements of principles and case law. The Tribunal's affirmation of the decision under review means that the applicant's claim for incapacity payment has been dismissed, and he is not entitled to the payment sought.
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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