Bawden v Repatriation Commission

Case [2012] FCA 345

FEDERAL COURT OF AUSTRALIA

Bawden v Repatriation Commission [2012] FCA 345

Citation: Bawden v Repatriation Commission [2012] FCA 345
Appeal from: Bawden v Repatriation Commission [2011] AATA 283
Parties: RODNEY CHARLES BAWDEN v REPATRIATION COMMISSION
File number: VID 466 of 2011
Judge: GRAY J
Date of judgment: 5 April 2012
Catchwords: DEFENCE AND WAR – veterans’ entitlements – pension – war veteran who rendered operational service – claims that post traumatic stress disorder, alcohol dependence and depressive disorder were war-caused – whether Administrative Appeals Tribunal erred – whether diagnosis of post traumatic stress disorder involved determining causation – whether Tribunal erred in finding on balance of probabilities that alleged traumatic event was not traumatic – whether Tribunal erred in determining causation of alcohol dependence and depressive disorder – whether Tribunal failed to determine what hypothesis was raised by the material – whether Tribunal erred by making findings of fact at too early a stage – whether Tribunal erred in applying the wrong standard of proof in making those findings of fact
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Veterans’ Entitlements Act 1986 (Cth) ss 13(1), 14, 15, 16(a), 18, 31, 120, 120(1), 120(3), 120(4), 120A, 120A(3), 120A(4), 120B, 120B(3), 120B(4), 196A, 196B, 196B(2), 196B(3)
Cases cited:

Bawden v Repatriation Commission [2011] AATA 283, reversed
Mines v Repatriation Commission [2004] FCA 1331 (2004) 86 ALD 62, followed
Repatriation Commission v Budworth [2001] FCA 1421 (2001) 116 FCR 200, followed
Repatriation Commission v Deledio (1998) 83 FCR 82, applied
Repatriation Commission v Gorton [2001] FCA 1194 (2001) 110 FCR 321, cited
Date of hearing: 10 November 2011
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 43
Counsel for the applicant: Ms F Ryan
Solicitor for the applicant: Williams Winter
Counsel for the respondent: Ms C Dowsett
Solicitor for the respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 466 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

RODNEY CHARLES BAWDEN
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

GRAY J

DATE OF ORDER:

5 APRIL 2012

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal be allowed.

2.The decision of the Administrative Appeals Tribunal, made on 2 May 2011, affirming the decision under review, be set aside.

3.The case be remitted to the Administrative Appeals Tribunal, to be heard and decided again.

4.        The respondent pay the applicant’s costs of the proceeding.  

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 466 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

RODNEY CHARLES BAWDEN
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

GRAY J

DATE:

5 APRIL 2012

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The nature and history of the proceeding

  1. This appeal is about the correct approach to take in applying the complex provisions of the Veterans’ Entitlements Act 1986 (Cth) (“the Veterans’ Entitlements Act”) to claims for…

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AGLC
Bawden v Repatriation Commission [2012] FCA 345
Case
[2012] FCA 345
Decision Date

CaseChat Overview and Summary

In the matter of Bawden v Repatriation Commission, the Federal Court of Australia considered an appeal against the decision of the Administrative Appeals Tribunal (AAT) regarding a war veteran's claim for certain veterans' entitlements. The veteran, Mr Bawden, sought recognition that his post-traumatic stress disorder, alcohol dependence, and depressive disorder were caused by his operational service in the armed forces. The AAT had rejected these claims, prompting Mr Bawden to appeal to the Federal Court.

The legal issues before the court involved whether the AAT had erred in its assessment of the evidence and application of the relevant principles. Specifically, the court examined whether the diagnosis of post-traumatic stress disorder required a determination of causation, whether the AAT correctly found that the alleged traumatic event was not traumatic, and if the AAT had properly determined the causation of the alcohol dependence and depressive disorder. Additionally, the court considered whether the AAT had failed to identify the hypothesis raised by the material and whether it erred by making findings of fact prematurely. The court also assessed whether the AAT had applied the correct standard of proof.

The court found that the AAT had indeed erred in law throughout its determination. Notably, the AAT's reliance on an earlier finding of fact, made on the "reasonable satisfaction" standard, was impermissible. The AAT also erred in concluding that the hypothesis was not reasonable and in finding beyond reasonable doubt that there was no causal connection between Mr Bawden's depressive disorder and his operational service. These errors deprived Mr Bawden of a fair hearing and potentially of a successful outcome. Consequently, the appeal was allowed, the AAT's decision was set aside, and the case was remitted for rehearing. The court further ordered that the Commission pay Mr Bawden's costs of the proceeding.

In conclusion, the court's detailed examination of the AAT's reasoning and application of legal standards led to the conclusion that the AAT's decision was flawed. The court's orders reflect the need for a fresh consideration of Mr Bawden's claims, ensuring that all legal principles are correctly applied.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal, made on 2 May 2011, affirming the decision under review, be set aside.

3. The case be remitted to the Administrative Appeals Tribunal, to be heard and decided again.

4. The respondent pay the applicant’s costs of the proceeding.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal continued with this process at [52]. It referred to “its finding that the sampan event did not constitute a traumatic event or severe stressor that evoked a response involving intense fear, helplessness or horror” and relied on that finding to conclude that the material did not point to a reasonable hypothesis linking Mr Bawden’s depressive disorder to his operational service with respect to factors that required the experiencing of stressors. Reliance on an earlier finding of fact, expressly made on the “reasonable satisfaction” standard, was impermissible at any stage, but particularly at the third stage, of the Deledio process. Again, the Tribunal erred in law in finding that the hypothesis was not a reasonable one and did not fit the relevant statements of principles and that it was therefore satisfied beyond reasonable doubt that there was no causal connection between Mr Bawden’s depressive disorder and his operational service.Conclusion These errors of law by the Tribunal at all stages of its determination of Mr Bawden’s claims deprived him of the chance of having those claims dealt with according to law, and possibly deprived him of a successful result in relation to each of them. The appeal must therefore be allowed. The decision of the Tribunal must be set aside. The case must be remitted to the Tribunal, to be heard and decided again. In accordance with the ordinary principle, that costs follow the event, the Commission should be ordered to pay Mr Bawden’s costs of the proceeding.

Ratio Decidendi

Legal Principle Established

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