White and Repatriation Commission

[2007] AATA 1949

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1949

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V 200600971

VETERANS’       APPEALS      DIVISION		)
Re		ANDREW JOHN WHITE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date14 November 2007

PlaceMelbourne

Decision The decision under review is varied to the extent the applicant does not suffer post‑traumatic stress disorder.  The remainder of the decision is affirmed.

(Sgd)  John Handley

  

Senior Member

VETERANS’ ENTITLEMENTS – applicant was bosun onboard HMAS Kanimbla in Persian Gulf – approach by 35 cigar boats which did not respond to radio warnings – flares fired – applicant alleged he ordered firing of bullets over the cigar boats – alleged he did so because Captain could not be located – Captain gave evidence – dispute concerning applicant's version of events – finding that shots not fired – PTSD diagnosis as asserted could not be established – Deledio analysis – whether to follow four stages‑ recent Federal Court decisions discussed – decision affirmed

Veterans’ Entitlements Act 1986 s 120

Byrnes v Repatriation Commission (1993) 177 CLR 564

Collins v Administrative Appeals Tribunal and Repatriation Commission [2007] FCAFC 111

Hardman v Repatriation Commission [2005] FCAFC 83

Mines v Repatriation Commission [2004] FCA 1331

Repatriation Commission v Crane [2004] FCAFC 86

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hill [2005] FCAFC 23

Repatriation Commission v Delidio (1988) 83 FLR 82
Repatriation Commission v Keeley [2000] FCA 532
Woodward v Repatriation Commission (2003) 200 ALR 332
Repatriation Commission v Stoddart (2003) 77 ALD 67

REASONS FOR DECISION

14 November 2007   Mr John Handley, Senior Member

1.      Mr White was a member of the Royal Australian Navy (the Navy) between 1980 and 2004.  The only episode of operational service relevant to these proceedings occurred between November 2001 and March 2002 when he served as a Petty Officer onboard HMAS Kanimbla (Kanimbla).  More specifically the applicant relies on an episode which he said occurred on 27 February 2002 when he was the bosun in charge of the gunnery watch, onboard Kanimbla in the Persian Gulf.  By reason of the events of that day, the applicant asserts that he has suffered either post‑traumatic stress disorder (PTSD) or depressive order and as a consequence claims a pension under the veterans’ entitlements legislation.  Pension presently is being paid at 100 per cent of the general rate for the conditions of sensori‑neural hearing loss of the left ear, asthma, fracture of right ankle and chemical burns to both eyes.  The Veterans’ Review Board (VRB) refused the claim for medical treatment and pension for incapacity for the condition of depressive disorder.  It also decided to amend the diagnosis to include PTSD.

2.      On 27 February 2002, Mr White said in his position as bosun in charge of the gunnery watch he was obliged to comply with Standing Orders and / or Rules of Engagement concerning service in the Persian Gulf.  He said that he understood the Standing Orders or the…