Border v Repatriation Commission

Case [2010] FCA 264

FEDERAL COURT OF AUSTRALIA

Border v Repatriation Commission [2010] FCA 264

Citation: Border v Repatriation Commission [2010] FCA 264
Appeal from: Application to strike out: Border and Repatriation Commission [2009] AATA 924
Parties: ROGER KEITH BORDER v REPATRIATION COMMISSION
File number: QUD 309 of 2009
Judge: REEVES J
Date of judgment: 23 March 2010
Catchwords:

PRACTICE AND PROCEDURE – strike out application – s 31A Federal Court of Australia Act 1976 (Cth) – moving party bears the onus of proving the other party has no reasonable prospects of success – consideration of the standard to be applied when question of law involved – there must be a real question of law and one that is sufficiently strong to warrant a full hearing

DEFENCE AND WAR – veterans’ entitlements – Statements of Principles – effect when deciding claim relating to operational service – consideration of the Deledio approach – whether hypothesis of claimant a reasonable one and consistent with the relevant Statement of Principles – the Tribunal is not to engage in any fact finding at this ‘third’ step – no onus of proof involved

Legislation: Veterans’ Entitlements Act 1986 (Cth) ss 120, 120(1), 120(3), 120A(3)
Federal Court of Australia Act 1976 (Cth) ss 4, 24(1A), 24(1D), 24(1E), 25(2B)(aa), 31A
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Cases cited:

Pham v Secretary, Department of Employment & Workplace Relations [2007] FCAFC 179
Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1118

Kulik v Administrative Appeals Tribunal [2009] FCA 1324

Jefferson Ford v Ford Motor Co (2008) 167 FCR 372
Windsor v Sydney Medical Service Cooperative Ltd (No 2) [2009] FCA 704
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Duncan v Lipscombe Child Care Services (2006) 150 IR 471; [2006] FCA 458
Lawrenson Light Metal Die Casting Pty Ltd (In Liq) v Cosmick Pty Ltd [2006] FCA 753
Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2007) 236 ALR 720; [2006] FCA 1352
Genovese v BGC Construction Pty Ltd [2007] FCA 923
Roadshow Films Pty Ltd v iiNet Limited [2009] FCA 332
Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499
Wang v Anying Group Pty Ltd [2009] FCA 1500
Bond v Barry (2008) 173 FCR 106

Unit 11 Pty Ltd v Sharpe Partners Pty Ltd (2006) 150 FCR 405

Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321
Colby Corporation Pty Ltd v Federal Commissioner of Taxation (2008) 165 FCR 133

Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408

Date of hearing: 24 February 2010
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 37
Counsel for the Appellant: Mr M Taylor
Solicitor for the Appellant: Wallace Davies
Counsel for the Respondent: Ms E Ford
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL…

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Border v Repatriation Commission [2010] FCA 264
Case
[2010] FCA 264
Decision Date

CaseChat Overview and Summary

In the case of Border v Repatriation Commission, the dispute involved a veteran, Mr Border, who was seeking to have his claim for service-related Post-Traumatic Stress Disorder (PTSD) re-evaluated. The primary legal issue before the court was whether the Tribunal had properly applied the statutory framework in determining if Mr Border's hypothesis connecting his military service to his PTSD was reasonable and consistent with the relevant Statements of Principles (SoP). The court examined whether the Tribunal had engaged in a fact-finding exercise when it was not required to, as per the decision in Deledio. Additionally, the court needed to ascertain if the Tribunal had correctly assessed the four incidents that Mr Border claimed were life-threatening events that could have contributed to his PTSD.

The court found that the Tribunal had indeed engaged in a fact-finding exercise, which was contrary to the guidance provided in Deledio. The Tribunal's detailed assessment of the four incidents, despite its claims to the contrary, indicated that it had considered the factual specifics of each incident, rather than merely determining if the material raised a reasonable hypothesis. This approach misaligned with the statutory directive that the Tribunal should not be involved in factual findings at this stage of the assessment. The court also found that the Tribunal's statement about the hypothesis raised questions regarding its compliance with the statutory obligations under sections 120(1), 120(3), and 120A of the Act.

As a result, the court held that the Repatriation Commission had not demonstrated that the appeal had no reasonable prospects of success. Consequently, the court dismissed the Commission's notice of motion to strike out the appeal and granted Mr Border leave to amend his notice of appeal. The court's decision underscored the importance of adhering to the statutory framework in assessing veterans' claims and highlighted the need for the Tribunal to strictly follow the delineated process in determining the reasonableness of a hypothesis without engaging in factual findings.

Orders

Orders of the court

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Background

Background to the litigation

Of particular significance to this case, at 96, the Court cited, with approval, a passage from the decision of the judge at first instance in relation to the assessment of the veteran’s hypothesis and the SoP at the third step mentioned above: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 will not be reasonable if it is: (i)contrary to proved or known scientific facts, (ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or(iii)(since 1994) inconsistent with (not upheld by) an applicable SoP. (emphasis added) It is quite clear from the parts of Deledio emphasised above that, in undertaking the first and third steps and determining whether the hypothesis put forward by the veteran is a reasonable one consistent with the relevant Statement of Principles in force at the time of making the decision, the Tribunal is not to engage in any fact finding exercise, nor is there any onus of proof involved. This is also consistent with what the High Court said in Bushell v Repatriation Commission (1992) 175 CLR 408 (“Bushell”) (per Mason CJ, Deane J and McHugh J) (at 413): “Sub-section (3) is concerned with whether ‘the material’ raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of sub-s (3), as demonstrated by its terms and its history, is to ensure that a claim to which s 120 applies is not met unless there is some material which raises the relevant causal hypothesis.” (emphasis added)THE TRIBUNAL’S DECISION The critical paragraphs of the Tribunal’s decision are [33] and [37] to [40]. At [33], the Tribunal purports to apply the four step process in Deledio as follows:33.There is a hypothesis raised between the facts presented by the applicant and his military service. Step 1 is therefore satisfied. Step 2 is satisfied in that an SoP has been declared which covers the situation raised by the applicant. In relation to Step 3, the evidence must point to the criteria in the SoP for it to be a reasonable hypothesis. I have already accepted that Mr Border has PTSD and a cluster of symptoms of long-standing which, according to Dr Calder-Potts, Dr Majumdar and Professor Jones, indicate generalised anxiety disorder and obsessive compulsive personality traits. The question for the Tribunal is whether the four incidents raised by the applicant explain and fall within the template raised in factor 6a of SoP No. 5 of 2008, i.e. “experiencing a life threatening event”. The Tribunal then turned to consider the details and circumstances of the four incidents concerned to determine whether each could be “objectively … regarded as a life threatening event”. The four incidents are described earlier in the Tribunal’s reasons as: the “scorpion event”, the “torch event”, the “rockets event” and the “moved base event”. While the Tribunal assessed these incidents as variously “very serious”, sensitive, “unpleasant” and confusing or isolating, it did not assess them to be sufficiently serious to constitute a “life threatening event”.CONSIDERATION

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Furthermore, I consider that the Tribunal’s statement that: “There is a hypothesis raised between the facts presented by the applicant and his military service” raises a real question as to whether it has properly discharged its functions under s 120(1) (read with ss 120(3) and 120A) of the Act as delineated in Deledio to: “… consider all the material … before it and determine whether [it] points to a hypothesis connecting … [Mr Border’s PTSD] … with the circumstances of [his] particular service …”.CONCLUSION Since I am considering this issue on a strike out application and without full argument as would occur at the hearing of an appeal, I do not consider it is appropriate for me to pre-empt that hearing by examining these issues any more closely than this. It suffices to say that, in summary, I consider that the question of law raised by Mr Border is a real question that is sufficiently strong to warrant it being properly and fully considered at the hearing of this appeal. It follows that I do not consider that the Commission has shown that the question of law identified in Mr Border’s third amended notice of appeal, when read with his amended grounds of appeal, has no reasonable prospects of success. Accordingly, the Commission’s notice of motion to strike out the appeal should be dismissed and the appellant should be given leave to amend his notice of appeal.

Ratio Decidendi

Legal Principle Established

The Tribunal then turned to consider the details and circumstances of the four incidents concerned to determine whether each could be “objectively … regarded as a life threatening event”. The four incidents are described earlier in the Tribunal’s reasons as: the “scorpion event”, the “torch event”, the “rockets event” and the “moved base event”. While the Tribunal assessed these incidents as variously “very serious”, sensitive, “unpleasant” and confusing or isolating, it did not assess them to be sufficiently serious to constitute a “life threatening event”.CONSIDERATION Taking into account the terminology used by the Tribunal in the paragraphs of its reasons referred to above, ie “the evidence must point to the criteria in the SoP” and the level of detail with which the Tribunal considered the circumstances of each of the four incidents, notwithstanding that the Tribunal denied that it was engaging in any “factual findings about evidence”, I consider there is a real question about whether the Tribunal did, in fact, engage in a fact finding exercise when it was assessing whether Mr Border’s hypothesis was reasonably consistent with the template in the SoP, contrary to the Full Court’s decision in Deledio. Furthermore, I consider that the Tribunal’s statement that: “There is a hypothesis raised between the facts presented by the applicant and his military service” raises a real question as to whether it has properly discharged its functions under s 120(1) (read with ss 120(3) and 120A) of the Act as delineated in Deledio to: “… consider all the material … before it and determine whether [it] points to a hypothesis connecting … [Mr Border’s PTSD] … with the circumstances of [his] particular service …”.CONCLUSION Since I am considering this issue on a strike out application and without full argument as would occur at the hearing of an appeal, I do not consider it is appropriate for me to pre-empt that hearing by examining these issues any more closely than this. It suffices to say that, in summary, I consider that the question of law raised by Mr Border is a real question that is sufficiently strong to warrant it being properly and fully considered at the hearing of this appeal. It follows that I do not consider that the Commission has shown that the question of law identified in Mr Border’s third amended notice of appeal, when read with his amended grounds of appeal, has no reasonable prospects of success. Accordingly, the Commission’s notice of motion to strike out the appeal should be dismissed and the appellant should be given leave to amend his notice of appeal.