VETERANS’ ENTITLEMENTS – veteran suffering from generalised anxiety disorder and associated alcohol dependence or abuse – whether “experiencing” a severe psychosocial stressor” in the Statement of Principles embodies both objective and subjective elements – whether Administrative Appeals Tribunal committed an error of law in determining that the events did not meet the definition of “severe psychosocial stressor” – conclusions of fact
ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
PAUL HOWARD WHITE APPLICANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGE:
SPENDER J
DATE OF ORDER:
24 MAY 2004
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The applicant pay the respondent’s costs, to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 160 OF 2003
ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
PAUL HOWARD WHITE APPLICANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGE:
SPENDER J
DATE:
24 MAY 2004
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This is an application, by way of appeal, under subs 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (“the Tribunal”) constituted by Deputy President D.W. Muller who, on 23 September 2003, affirmed a decision of the Veterans’ Review Board (“the VRB”) made on 12 November 2001. The VRB in that decision had varied a decision of the Repatriation Commission of 1 December 2000 by adding the diagnoses of anxiety disorder with associated alcohol dependence or abuse, but otherwise affirmed the decision of the Repatriation Commission, with the consequence that personality disorder, anxiety disorder and associated alcohol dependence or abuse were not war-caused within the meaning of the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”).
Factual Background
The applicant was born on 25 February 1951 and enlisted in the Royal Australian Navy on 1 April 1967 aged 16.1/12. The applicant has operational service in accordance with the VE Act during the following periods:
(a) 21 May 1968 – 13 June 1968 (HMAS Sydney); (b) 13 November 1968 – 28 November 1968 (HMAS Sydney); (c) 22 February 1970 – 1…
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.
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AGLC
White v Repatriation Commission [2004] FCA 633
Case
[2004] FCA 633
Decision Date
CaseChat Overview and Summary
This appeal concerns the applicant’s challenge to the decision of the Veterans’ Review Board affirming a decision of the Repatriation Commission that the applicant’s claims for personality disorder, anxiety disorder and associated alcohol dependence or abuse were not war-caused within the meaning of the Veterans’ Entitlements Act 1986. The applicant, Mr White, enlisted in the Royal Australian Navy on 1 April 1967 and has operational service in South Vietnam from 21 May 1968 to 13 June 1968 and from 13 November 1968 to 28 November 1968. He claims that he suffers from generalised anxiety disorder with alcohol dependence or abuse as a result of incidents that occurred on his first voyage to South Vietnam on or about 1 June 1968. The legal issues before the court were whether the applicant's claims for psychiatric illness were war-caused within the meaning of the Veterans’ Entitlements Act and whether the Veterans’ Review Board was correct in affirming the decision of the Repatriation Commission. The court considered the evidence and submissions of both parties and examined the statutory provisions and relevant case law. The court found that the applicant's claims were not supported by sufficient evidence to establish that the claimed psychiatric illnesses were war-caused within the meaning of the Veterans’ Entitlements Act. The court also found that the Veterans’ Review Board was correct in affirming the decision of the Repatriation Commission. The appeal was dismissed, and the applicant was ordered to pay the respondent's costs.
Orders
Orders of the court
1. The appeal be dismissed.
2. The applicant pay the respondent’s costs, to be taxed if not agreed.
Background
Background to the litigation
This is an application, by way of appeal, under subs 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (“the Tribunal”) constituted by Deputy President D.W. Muller who, on 23 September 2003, affirmed a decision of the Veterans’ Review Board (“the VRB”) made on 12 November 2001. The VRB in that decision had varied a decision of the Repatriation Commission of 1 December 2000 by adding the diagnoses of anxiety disorder with associated alcohol dependence or abuse, but otherwise affirmed the decision of the Repatriation Commission, with the consequence that personality disorder, anxiety disorder and associated alcohol dependence or abuse were not war-caused within the meaning of the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”).Factual Background The applicant was born on 25 February 1951 and enlisted in the Royal Australian Navy on 1 April 1967 aged 16.1/12. The applicant has operational service in accordance with the VE Act during the following periods:(a) 21 May 1968 – 13 June 1968 (HMAS Sydney);(b) 13 November 1968 – 28 November 1968 (HMAS Sydney);(c) 22 February 1970 – 1 March 1970 (HMAS Yarra);(d) 22 February 1971 – 1 March 1971 (HMAS Yarra). The applicant has defence service in accordance with the VE Act from 7 December 1972 until he was discharged on 22 May 1974 but does not rely upon defence service. The parties agree that the applicant has the following accepted service-related disabilities:(a) sensorineural hearing loss of the right ear with tinnitus;(b) gastro-oesophageal reflux disease;and receives the disability pension at 40 per cent of the general rate. On 7 August 2000 the applicant made a claim for a number of injuries/diseases but the claim for the following were refused:(a)personality disorder;(b)anxiety disorder;(c)alcohol dependence or abuse. As noted above, on 12 November 2001, the VRB varied the diagnosis by adding the condition of generalised anxiety disorder with associated alcohol dependence or abuse. The applicant’s claim relates to incidents which occurred on his first voyage to South Vietnam (Vung Tau) on or about 1 June 1968 when he was 17 years of age. Mr White claims that he suffers from the psychiatric illness of generalised anxiety disorder with alcohol dependence or abuse as a result of two experiences he suffered whilst serving with the Royal Australian Navy in South Vietnam on or about 1 June 1968, when he was a member of the crew of a Landing Craft Medium which was delivering soldiers and supplies at Vung Tau Harbour in South Vietnam from the HMAS Sydney on which he was serving at the time. He says he suffered acute embarrassment when he had difficulty in opening the bow door of the Landing Craft Medium, and he was startled when he heard some scare charges near the HMAS Sydney. Subsection 13(1) of the VE Act renders the Commonwealth liable to pay a pension to a veteran where that veteran has become incapacitated from, relevantly, a war-caused disease. The circumstances in which a disease is taken to be war caused are set out in subs 9(1) of the VE Act.