WALTER ALLEN and REPATRIATION COMMISSION

Case [2010] AATA 840


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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WALTER ALLEN and REPATRIATION COMMISSION [2010] AATA 840
Case
[2010] AATA 840
Decision Date

CaseChat Overview and Summary

Walter Allen, the applicant, sought incapacity payment from the Repatriation Commission, claiming his alcohol abuse and anxiety disorder were related to his operational service. The dispute was brought before the Tribunal, which was required to determine if the applicant's conditions were connected to his service. The applicant argued that his conditions were a result of his service, while the Commission contended that the applicant's conditions did not meet the criteria for incapacity payment as they did not clinically onset within five years of the incident. The central issue before the Tribunal was whether the applicant's hypothesis connecting his current conditions to his service was reasonable and sufficient to warrant incapacity payment. The Tribunal had to assess the evidence presented and determine if the applicant's hypothesis was a reasonable one, considering the relevant statements of principles and case law.

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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