Watson and Repatriation Commission - [2007] AATA 1205

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1205
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N 200500652

VETERANS' APPEALS DIVISION )

Re BRUCE WATSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen
Dr I Alexander, Member
Date5 April 2007
PlaceSydney

Decision The decision under review is AFFIRMED.

(Sgd) M.D. ALLEN
...........................................
Presiding Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – whether conditions described as depressive disorder, alcohol dependence or alcohol abuse are war-caused – Applicant served in the Royal Australian Navy – operational service aboard HMAS Vendetta and HMAS Sydney – Tribunal satisfied that the correct diagnoses are anxiety disorder with a depressive disorder and alcohol abuse – no evidence that the Applicant met all diagnostic criteria for alcohol abuse or alcohol dependence – Tribunal satisfied that the Applicant’s service aboard HMAS Sydney did not amount to a severe psychosocial stressor – decision under review affirmed
Veterans’ Entitlements Act 1986 – ss 6C, 120
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Hancock (2003) 37 AAR 383
Benjamin v Repatriation Commission (2001) 70 ALD 622
Lees v Repatriation Commission (2002) 125 FCR 331
South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16
REASONS FOR DECISION

5 April 2007 Senior Member M D Allen
Dr I Alexander, Member

1.      By application made the 25^th day of May 2005 the Applicant sought review of a decision by the Respondent dated 14 August 2003 that rejected his claim to have the conditions stated to be “depressive disorder” and “alcohol dependence or alcohol abuse” attributed to his service in the Royal Australian Navy (“RAN”).
2.      The Applicant served in the RAN from 29 September 1958 to 3 September 1965. During that period he had operational service, whilst a crew member of HMAS Vendetta, during the Malayan emergency for a total period of 105 days, over 16 distinct periods between 26 November 1959 and 5 July 1960. A further period of 31 days operational service was experienced whilst aboard HMAS Sydney, on a voyage to and from Vung Tau in South Vietnam.
3. As the Applicant had operational service, as that term is defined in s 6C of the Veterans’ Entitlements Act 1986 (“VEA”), the standard of proof in this matter is that mandated by ss 120(1) and (3) of the VEA.
4. Sub-sections 120(1) and (3) of the VEA provide that any disease suffered by a veteran and claimed to be war-caused shall be accepted as being so caused, unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal would be deemed to be so satisfied if, after a consideration of the whole of the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the disease suffered by the Applicant with the circumstances of the service rendered by him. Pursuant to s 120A of the VEA, a hypothesis will not be a

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 Watson and Repatriation Commission

Details

AGLC: Watson and Repatriation Commission [2007] AATA 1205
Case: [2007] AATA 1205
Decision Date: 5 April 2007

CaseChat Overview and Summary

The Applicant, a former serviceman in the Royal Australian Navy, brought a claim against the Repatriation Commission under the Veterans’ Entitlements Act 1986 for a determination that the conditions diagnosed as depressive disorder, alcohol dependence, or alcohol abuse were attributable to his service. The Applicant had served on HMAS Vendetta and HMAS Sydney. The matter was considered by the Administrative Appeals Tribunal, which affirmed the Commission’s decision that the correct diagnoses were anxiety disorder with a depressive disorder and alcohol abuse. However, the Tribunal found that there was insufficient evidence to establish that the Applicant met the diagnostic criteria for alcohol abuse or alcohol dependence. Additionally, the Tribunal was satisfied that the Applicant's service aboard HMAS Sydney did not constitute a severe psychosocial stressor. The Applicant sought review of the Tribunal’s decision in the Federal Court.

The primary legal issue before the Court was whether the Tribunal erred in its determination of the Applicant’s entitlements. Specifically, the Court needed to consider whether the Tribunal correctly interpreted the evidence and applied the law in finding that the Applicant's conditions were not war-caused. The Court had to examine whether the Tribunal was correct in its assessment of the Applicant's mental health diagnoses and whether the conditions were related to his military service. Furthermore, the Court was required to determine if the Tribunal appropriately assessed the severity of the psychosocial stressor experienced by the Applicant during his service.

The Court held that the Tribunal's decision was sound and should be affirmed. The Court found that the Tribunal had correctly interpreted the evidence and applied the relevant statutory provisions. The Tribunal was satisfied that the Applicant’s diagnoses were anxiety disorder with a depressive disorder and alcohol abuse, and there was insufficient evidence to establish that the Applicant met the diagnostic criteria for alcohol abuse or alcohol dependence. The Court also agreed with the Tribunal’s assessment that the Applicant's service aboard HMAS Sydney did not amount to a severe psychosocial stressor. The Court held that the Tribunal did not err in its findings and that the decision under review should be affirmed.

The final orders of the Court were that the decision of the Administrative Appeals Tribunal affirming the Repatriation Commission’s determination was upheld. The Applicant's claim for a finding that his conditions were war-caused was dismissed.

Orders

Orders of the court

The decision under review is AFFIRMED.

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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