White and Repatriation Commission - [2007] AATA 2003

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600837

VETERANS' APPEALS DIVISION )

Re CHRISTOPHER WHITE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr R G Kenny, Member

Date                         30 November 2007
Place                       Brisbane

Decision

The Tribunal:
(1) varies the decision under review by amending the diagnosis from adjustment disorder with mixed anxiety and depressed mood to post traumatic stress disorder;
(2) sets aside the decision as varied and substitutes its decision that:
(a) post traumatic stress disorder, alcohol abuse and irritable bowel syndrome are war-caused diseases or injuries in accordance with s 9(1)(b) of the Veterans’ Entitlements Act 1986;
           (b) Mr White is entitled to receive a pension for incapacity            associated with those conditions with effect from and including 5            January 2004; and
           (c) the matter of assessment be remitted to the Repatriation            Commission.

...............[Sgd]...............................
RG Kenny
  Member

CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service with Australian Regular Army – application of Statements of Principles – appropriate diagnosis of psychiatric conditions and other conditions – post traumatic stress disorder, alcohol abuse and irritable bowel syndrome – reasonable hypothesis of relevant relationship to service raised – conditions war-caused – decision set aside – assessment of incapacity remitted to respondent
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 69, 120, 120A
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408
White v Repatriation Commission [2004] FCA 633
Woodward v Repatriation Commission [2003] FCAFC 160
Repatriation Commission v Stoddart [2003] FCAFC 300
Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750.
REASONS FOR DECISION

30 November 2007

Mr R G Kenny, Member

Background
1. Christopher White (the applicant) served in the Australian Regular Army on three separate occasions between 1981 and 2005. On 5 April 2004, he lodged with the Repatriation Commission (the respondent), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (the Act), a claim for a disability pension for “psychiatric conditions”, “alcohol dependence and abuse” and “irritable bowel syndrome” which he contended were related to his army service. On 17 January 2005, the respondent accepted that Mr White suffered from adjustment disorder with mixed anxiety and depressed mood, alcohol abuse and irritable bowel syndrome but determined that these conditions were not related to his service. On 1 August 2006, the Veterans’ Review Board (the Board) affirmed the decision and Mr White now seeks further review by the Administrative Appeals Tribunal (the Tribunal).
Relevant Service and Standard of Proof
2. Mr White’s army service was from 19 August 1981 until 18 August 1984, from 29 June 1988 until 30 April 1993 and from 14 March 2000 until 7 October 2005. From 28 October 2001 until 22 December 2001 and from 1 January 2002 until 17 April 2002 he served in East Timor 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 White and Repatriation Commission

Details

AGLC: White and Repatriation Commission [2007] AATA 2003
Case: [2007] AATA 2003
Decision Date: 30 November 2007

CaseChat Overview and Summary

The applicant, Mr White, sought review of a decision by the Repatriation Commission that he was not entitled to a disability pension for incapacity due to certain psychiatric and medical conditions. The Federal Court of Australia considered the case, reviewing the diagnosis and application of relevant statutory provisions. The key legal issue was whether the diagnosed conditions were war-caused and thus entitled to pension benefits under the Veterans’ Entitlements Act 1986. The Court needed to determine if the Repatriation Commission had correctly applied the legislation in finding that the applicant was not entitled to a pension for the specified conditions.

The Court found that the Repatriation Commission had erred in its diagnosis, substituting adjustment disorder with mixed anxiety and depressed mood for post traumatic stress disorder. The Court held that the Repatriation Commission should have considered the reasonable hypothesis that the diagnosed conditions were related to Mr White’s service. The Court concluded that the evidence supported a finding that the conditions were war-caused within the meaning of the Act. The decision of the Repatriation Commission was set aside, and the matter was remitted for reassessment of Mr White’s incapacity. The Court ordered that post traumatic stress disorder, alcohol abuse, and irritable bowel syndrome were war-caused, and Mr White was entitled to a pension for incapacity associated with those conditions.

Orders

Orders of the court

The Tribunal:

(1) varies the decision under review by amending the diagnosis from adjustment disorder with mixed anxiety and depressed mood to post traumatic stress disorder;

(2) sets aside the decision as varied and substitutes its decision that:

(a) post traumatic stress disorder, alcohol abuse and irritable bowel syndrome are war-caused diseases or injuries in accordance with s 9(1)(b) of the Veterans’ Entitlements Act 1986;

(b) Mr White is entitled to receive a pension for incapacity associated with those conditions with effect from and including 5 January 2004; and

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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