FCA 1130 (7 August 2020)
 FCA 1130 (7 August 2020)
Whether Tribunal erred in finding material did not raise reasonable hypothesis by weighing evidence
Whether Tribunal erred in finding material did not raise reasonable hypothesis.
Veteran suffering from PTSD – whether veteran’s Vietnam service resulted in war-caused PTSD or its worsening – whether Tribunal had erred in law in application of standard of proof and applicable Statements of Principles
Claim for PTSD, generalised anxiety disorder and alcohol abuse – where parties agreed Tribunal had erred and the Tribunal’s decision should be set aside – where the Tribunal had also found it lacked jurisdiction to deal with the applicant’s claims under s70 of the VEA on the basis the VRB had not dealt with this claim – whether the Tribunal had erred in its determination – whether the scope of remittal to the Tribunal should be confined.
Application for disability pension – whether the Tribunal failed to consider the hypothesis the applicant advanced and/or which was pointed to or raised by the evidence – whether the Tribunal failed to have regard to the whole of the material before it or engaged in impermissible fact finding.
Application for intermediate rate of pension – where the applicant had been working as a full-time partner of a law firm – where, because of his war-caused incapacity, he subsequently worked as a part-time consultant solicitor – where he was engaged in that part-time work at the time of his application – whether his full-time work should be considered to be his “remunerative work (last paid work)” for the purpose of s 23(3A)(d) of the VEA.
Application for above general rate of pension – where Tribunal found applicant’s “last paid work” comprised two remunerative activities for the purposes of ss 24(2A)(d) and (g) – whether only one remunerative activity can comprise “last paid work” for the purposes of s 24(2A)(d) – whether applicant undertaking “remunerative activity” when gap in paid work – whether breach of procedural fairness – whether sufficient for one of two remunerative activities comprising last paid work to satisfy 24(2A)(g).
Application for above general rate of pension – whether respondent prevented from engaging in remunerative work by defence-injuries alone – whether Tribunal misconstrued the “alone” test by limiting its consideration to diagnosed medical conditions – whether Tribunal failed to consider respondent’s substance abuse disorder as a causative factor for incapacity to undertake remunerative work – whether Tribunal’s findings were illogical or irrational – whether Tribunal failed to provide reasons.
Intermediate and special rate – whether the Tribunal erred in misconstruing s 23(1)(c) by reference to s 23(3)(a)(i) and s 24(1)(c) by reference to s 24(2)(a)(i) – Tribunal failed to consider whether veteran not seeking remunerative work for reasons other than his war-caused disabilities – whether the Tribunal failed to give adequate reasons.
Reasonable hypothesis test – no relevant Statement of Principles – chronic irritable cough syndrome – exposure to insecticides
Application for special rate – whether application lodged before applicant turned 65 – section24(2A) applicable - whether applicant was engaged in “remunerative work”– whether primary judge misconstrued “working…for a continuous period of at least 10 years”.
Application for disability pension – whether depressive disorder is related to defence service – application of SoP – whether the Tribunal erred in law in finding insufficient evidence that the applicant suffered a category two stressor – where it was manifestly unreasonable for Tribunal to conclude there was no sufficient evidence.
Application for special rate – whether AAT erred in its construction of s24(2)(b) by requiring a “liberal and beneficial” approach to the extent and nature of the veteran’s war-caused injuries – whether AAT erred in determining that the veteran’s war-caused injuries were the “substantial cause” of his inability to obtain remunerative work.
Whether the Tribunal erred in law because it made a finding that the applicant did not experience a stressor in the SoP otherwise than being satisfied beyond reasonable doubt in accordance with stage four of Deledio.
Appeal from AAT – questions of law – no questions of law stated in notice of appeal – questions formulated in written submissions and argument
Appeal from AAT – questions of law – whether Tribunal properly applied s119(g) or 119(h) of the VEA – whether Tribunal properly acquitted its obligation to give reasons pursuant to s43 of the AAT Act
Whether the Tribunal failed to consider the applicability of factor 6(a) of the Statement of Principles (SoP) for Alcohol Dependence and Alcohol Abuse – whether the Tribunal misconstrued s120 and /or the applicable SoP – whether the Tribunal adhered to the Deledio process for determining whether injury or disease war-caused under the Act.
Claim for PTSD, alcohol dependence and hypertension – veteran found to have been the subject of abuse and bullying – where Tribunal erred in law in finding that veteran did not experience events that involved actual or threatened serious injury having regard to the bullying conduct.
Application for special rate – whether application lodged prior to applicant turning 65 – s24(2A) applicable – whether applicant was engaged in “remunerative work” – whether Tribunal misconstrued “working…for a continuous period of at least 10 years” under s24(2A)(g) – whether Tribunal misconstrued “suffering a loss” under s24(2A)(e)
Claim for PTSD and alcohol abuse – whether Tribunal failed to afford procedural fairness – whether Tribunal took into account an irrelevant consideration – whether decision affected by actual or apprehended bias – whether findings irrational, illogical or manifestly unreasonable – whether Tribunal failed to make independent inquiries – whether Tribunal failed to provide adequate reasons for its factual findings – whether Tribunal failed to apply the correct standard of proof in relation to factual findings.
Application for special rate – whether a finding made by the Tribunal as to whether the veteran performed work of a particular kind raised a question of law in relation to the phrase “remunerative work” – whether factual finding made that veteran was not performing work after turning 65 was made in a manner which raised an error of law.
Special rate of pension under s 24(1)(c) – whether applicant prevented from engaging in remunerative working by war-caused injuries alone – leave to extend time to rely on notice of contention refused.