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BESSON v Repatriation Commission

BESSON v Repatriation Commission

Case [2014] FCCA 123 6 February 2014

Statutory Construction

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Administrative Law

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BESSON v REPATRIATION COMMISSION

[2014] FCCA 123

Catchwords:
ADMINISTRATIVE LAW – Veterans’ entitlements – appeal from Administrative Appeals Tribunal – Veterans’ Entitlements Act 1986 (Cth) – post-traumatic stress disorder – operational service – whether there was a reasonable hypothesis connecting the disease with the circumstances of the applicant – experience of a life threatening event – subjective/objective test – no error of law by tribunal – application dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.441
Federal Court Rules 2011 (Cth), r.33.1(2)
Veterans’ Entitlements Act 1986 (Cth), ss.9, 13, 120, 120A

Applicant:

PETER BESSON

Respondent:

REPATRIATION COMMISSION

File Number:

BRG 101 of 2013

Judgment of:

Judge Burnett

Hearing date:

12 August 2013

Date of Last Submission:

12 August 2013

Delivered at:

Brisbane

Delivered on:

6 February 2014

REPRESENTATION

Counsel for the Applicant:

Ms A. Frizelle

Solicitors for the Applicant:

Martin Solicitors

Counsel for the Respondent:

Ms H. Bowskill

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Appeal dismissed.
Subject to application made by either party within seven (7) days of these orders direct the appellant pay the respondent’s costs of and incidental to the appeal to be assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 101 of 2013

PETER BESSON

Applicant

And

REPATRIATION COMMISSION

Respondent

REASONS FOR JUDGMENT

Introduction

On 15 June 1964 the appellant was in the course of operational service as a member of the crew of HMAS Sydney when he claimed to suffer a “life threatening event.” He subsequently developed post-traumatic stress disorder (“PTSD”) and other conditions. He applied to the Repatriation Commission (“the Commission”) for a service pension. His application was refused on the ground that his condition could not be linked to his operational service.
He sought review of that determination by application to the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal found that his condition could not be linked to his operational service. It too denied his application.
The appellant now appeals that decision.

Material Facts

The relevant findings of the Tribunal address the appellant’s background. In particular, he had joined the Navy at a relatively young age and in the course of training had been exposed to a number of events which confirmed…

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 BESSON v Repatriation Commission

Details

AGLC: Besson v Repatriation Commission [2014] FCCA 123
Case: [2014] FCCA 123
Decision Date: 6 February 2014

CaseChat Overview and Summary

The applicant, Besson, appealed to the Federal Court of Australia against a decision of the Administrative Appeals Tribunal (AAT). The dispute concerned Besson's claim for veterans' entitlements under the *Veterans’ Entitlements Act 1986* (Cth) for post-traumatic stress disorder (PTSD), which he alleged was connected to his operational service.

The primary legal issue before the Court was whether the AAT had erred in law in its determination that there was no reasonable hypothesis connecting Besson's PTSD with the circumstances of his service. This required the Court to consider the appropriate test for establishing such a connection, particularly in relation to the experience of a life-threatening event.

Judge Burnett applied the established legal principles for assessing veterans' claims, which involve determining whether a reasonable hypothesis exists that links a particular condition to the veteran's service. The Court affirmed that this assessment involves both subjective and objective considerations. Having reviewed the AAT's findings and reasoning, the Court found no error of law in the Tribunal's conclusion that no such reasonable hypothesis had been established on the evidence before it.

Consequently, the appeal was dismissed. The Court also made orders regarding the costs of the appeal, subject to any application by either party within seven days.

Orders

Orders of the court

1. Appeal dismissed.

2. Subject to application made by either party within seven (7) days of these orders direct the appellant pay the respondent’s costs of and incidental to the appeal to be assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Besson v Repatriation Commission [2014] FCCA 123

Most Recent Citation

Besson v Repatriation Commission [2014] FCA 881

Cases citing this decision · 1 of 1 shown

Besson v Repatriation Commission
[2014] FCA 881

…4] FCA 881 Citation: Besson v Repatriation Commission [2014] FCA 881 Appeal from: Application for extension of time: Besson v Repatriation Commission [2014] FCCA 123 Parties: PETER PHILIP BESSON v REPATRIATION COMMISSION File number: QUD 258 of 2014 Judge: RANGIAH J Date of judgment: 22 August 2014 Catchwords: DEF…

View all 1 citing cases →

Cases cited in this decision · 15 of 15 shown

Border v Repatriation Commission (No 2)
[2010] FCA 1430 Para 3

…term “ experiencing a life threatening event ” was the subject of detailed consideration by Reeves J in Border v Repatriation Commission (No.2) (2010) 191 FCR 163, where after referring to Stoddart v Repatriation Commission and Woodward v Repatriation Commission , his Honour noted at [67]: “ Based on these authoritie…
Hogno v Repatriation Commission
[2010] FCA 1044 Para 1

…from the Tribunal are well settled. They were adequately summarised in the respondent’s submissions by reference to Hogno v Repatriation Commission [2010] FCA 1044. In that case, Flick J set out at [10]-[15] a number of well-established propositions, including: · The subject matter and scope of an appeal is limite…
Guy v Repatriation Commission
[2005] FCA 562

…Border v Repatriation Commission (No.2) (2010) 191 FCR 163 Deledio v Repatriation Commission (1997) 47 ALD 261 Guy v Repatriation Commission (2005) FCA 562 Hogno v Repatriation Commission [2010] FCA 1044 Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Minister for Immigration and Ethnic Affairs v Wu Shan Liang…
White v Repatriation Commission
[2004] FCA 663 Para 11

…In explaining the definition of “ severe psychological stressor ,” the appellant referred to remarks of Spender J in White v Repatriation Commission (2004) 39 AAR 67 who, at 73, explained the term: “ … the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as…
Stoddart v Repatriation Commission
[2003] FCA 334 Para 13

…For present purposes the application of that test was more closely examined by Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283. There his Honour considered the proper understanding of the definition of “experiencing a severe stressor ” as employed in the SoP. At the outset he accepted the subject…
Woodward v Repatriation Commission
[2003] FCA 160 Para 1

…on at [50]; b)the occurrence must be one that “ evokes feelings of substantial distress in an individual ,” which has a subjective element: Woodward v Repatriation Commission (2003) 200 ALR 332 at 352; and c)the definition did not require there to be an actual threat judged objectively and with full knowledge of the circumstances: Woodward…
Repatriation Commission v Gorton
[2001] FCA 1194 Para 6

…pective, it considered that in this case the appellant would either satisfy both or neither.[3] [2] In Repatriation Commission v Gorton (2001) 110 FCR 321 it appears to have been authoritatively determined that the first point of assessment should be the SoP in force at the time of decision. Consideration of accrued…
Repatriation Commission v Deledio
[1998] FCA 391 Para 6

…is, although it sought to explain some of his Honour’s observations concerning the manner in which evidence is addressed. At [94] it stated: [10] Repatriation Commission v Deledio (1998) 83 FCR 82. “ … Consequently decision-makers at each level of merits review of veteran’s entitlements must gather for themselves or have presented to them…
Repatriation Commission v Bey
[1997] FCA 1347 Para 4

…n, the Tribunal noted that there was material that supported the hypothesis, that is, it “ raised a hypothesis ”: Repatriation Commission v Bey (1997) 79 FCR 364.[12] [12] At 368 the majority observed without criticism the Tribunal’s approach in addressing the first step by inquiring whether the evidence “ raised th…
Deledio v Repatriation Commission
[1997] FCA 1047 Para 3

…The manner in which these provisions work was explained by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261. He observed that these provisions “ left intact the twin pillars of (i) the reverse onus of proof beyond reasonable doubt and (ii) the reasonable hypothesis .”[7] The hypothesis becomes a “ rule or proposition of uni…
Minister for Immigration and Ethnic Affairs v Wu Shan Liang
[1996] HCA 6 Para 17

…so would be to cast an eye too readily attuned to error over the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2.…
Byrnes v Repatriation Commission
[1993] HCA 51 Para 5

…His Honour continued: “ … The particular claim then has to fit the template laid down in the SoP. The [ Byrnes v Repatriation Commission (1993) 177 CLR 564] methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis wi…
McDonald v Director-General of Social Security
[1984] FCA 59 Para 6

…l onuses or burdens of proof and other evidentiary concepts will not generally apply. In McDonald v Director-General of Social Security (1984) 1 FCR 354, Woodward J, with the agreement of Northrop and Jenkinson JJ, said (at 356): “… the onus (or burden) of proof is a common law concept, developed with some difficul…
Woodward v Repatriation Commission
[2003] FCAFC 160 Para 1

…e one that “ evokes feelings of substantial distress in an individual ,” which has a subjective element: Woodward v Repatriation Commission (2003) 200 ALR 332 at 352; and c)the definition did not require there to be an actual threat judged objectively and with full knowledge of the circumstances: Woodward v Repatriat…
Soulemezis v Dudley (Holdings) Pty Ltd
(1987) 10 NSWLR 24 Para 6

…having determined at the third step that the hypothesis was not a reasonable one, it was unnecessary for it to progress to consider the fourth step: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269. [13] This complaint does not assist the appellant. [13] Applying Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3…

Legislation cited in this decision · 3

Veterans' Entitlements Act 1986 (Cth)
120, 120A, 13, 9 5 mentions (from Para 1)
Administrative Appeals Tribunal Act 1975 (Cth)
33(1)(c)), 441 3 mentions (from Para 1)
Federal Court Rules 2011 (Cth)
33.1(2) 2 mentions (from Para 1)