Byrne v Repatriation Commission

Case [2006] FCA 1326

FEDERAL COURT OF AUSTRALIA

Byrne v Repatriation Commission [2006] FCA 1326

VETERANS ENTITLEMENTS – appeal from the Administrative Appeals Tribunal – applicant rendered operational service in Vietnam War – applicant claimed post traumatic stress and dysthymic disorder resulted from incident which took place during his service in Vietnam – application of the four-step test articulated by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 – whether Tribunal erred in law in applying step four of the Deledio test- whether Tribunal erred in finding that the incapacities of the applicant were not war-caused – whether Tribunal failed to take into account relevant considerations – whether Tribunal made a finding not open to it on the evidence – whether Tribunal took into account irrelevant considerations

Held: No error of law in the decision of the Tribunal can be identified. It was open to the Tribunal to find that it was satisfied beyond reasonable doubt that the applicant’s incapacities were not war-caused.

Administrative Appeals Tribunal Act 1975 (Cth) s 44
Veterans’ Entitlement Act 1986 (Cth) ss 5C, 6C, 7, 9, 13, 14, 119, 120, 120A, 196B

Bushell v Repatriation Commission (1992) 175 CLR 408 cited
Byrnes v Repatriation Commission (1993) 177 CLR 564 cited
Ergon Energy Incorporation Limited v The Commissioner of Taxation [2006] FCAFC 125 cited
Fenner v Repatriation Commission [2005] FCA 27 cited
Leane v Repatriation Commission [2004] FCAFC 83 cited
Repatriation Commission v Deledio (1998) 83 FCR 82 applied
Repatriation Commission v Hendy [2002] FCAFC 424 cited
Repatriation Commission v Keeley (2000) 98 FCR 108 cited
Stoddart v Repatriation Commission [2003] FCA 334 cited

White v Repatriation Commission [2004] FCA 633 cited

PETER BYRNE v REPATRIATION COMMISSION
QUD 575 OF 2005

COLLIER J
11 OCTOBER 2006
BRISBANE


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 575 OF 2005
ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR RG KENNY, MEMBER

BETWEEN:

PETER BYRNE
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

11 OCTOBER 2006

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

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

QUD 575 OF 2005
ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR RG KENNY, MEMBER

BETWEEN:

PETER BYRNE
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

COLLIER J

DATE:

11 OCTOBER 2006

PLACE:

BRISBANE

REASONS FOR JUDGMENT

  1. This is an appeal pursuant to s 44 Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’). The decision of the Administrative Appeals Tribunal (‘the Tribunal’) comprising Mr RG Kenny, Member, was delivered 28 November 2005. The applicant, a Vietnam War veteran, appeals the decision wherein the Tribunal affirmed the decision under review of the Veterans Review Board dated 7 December 2001, which in turn affirmed the decision of the respondent dated 2 May 2001. The…

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Details
AGLC
Byrne v Repatriation Commission [2006] FCA 1326
Case
[2006] FCA 1326
Decision Date

CaseChat Overview and Summary

The applicant, a former member of the Royal Australian Air Force who served in Vietnam, appealed a decision of the Administrative Appeals Tribunal (AAT) which found that his incapacities, diagnosed as post-traumatic stress disorder and dysthymic disorder, were not war-caused. The appeal was heard by the Federal Court of Australia, which was required to determine whether the AAT erred in its interpretation of the evidence and the applicable legislation. The primary issue before the Court was whether the AAT misapplied the evidence from the psychiatrists and the applicable criteria in the Statement of Reasons (SoP) when it concluded that the applicant's incapacities were not war-caused.

The Court examined the AAT's reasoning and found no error in its application of the law or misinterpretation of the evidence. The Court noted that the AAT considered all relevant evidence, including the reports from three psychiatrists, and correctly applied the statutory framework as outlined in the decision of the Full Court in Repatriation Commission v Deledio. The Court further found that the AAT's consideration of the applicant's version of events and the actual circumstances of the incident on 9 November 1969 was appropriate. The Court rejected the argument that the AAT failed to take into account relevant evidence or added improper criteria to the SoPs.

Consequently, the Court dismissed the appeal and ordered that the appeal be dismissed with costs. The decision reinforces the principle that the AAT must correctly apply the relevant legal framework and consider all evidence before it, while the Court's role is limited to reviewing the AAT's decision for errors of law.

Orders

Orders of the court

1. The appeal be dismissed with costs.

Background

Background to the litigation

A party to a proceeding before the Tribunal may appeal to the Court on a question of law from any decision of the Tribunal in that proceeding (s 44(1) AAT Act). This Court does not have jurisdiction to intervene if all that is shown is that the Tribunal has reached an erroneous factual conclusion: see Repatriation Commission v Hendy [2002] FCAFC 424 at [33], Leane v Repatriation Commission [2004] FCAFC 83 at [19].BACKGROUND The background facts to this application are set out in the Reasons for Decision of the Tribunal. They may be summarised as follows:1. The applicant served in Vietnam as part of the Royal Australian Air Force (‘RAAF’) during the Vietnam War. He carried out the duties of an air-frame fitter, mainly at Vung Tau where he was based.2. On 9 November 1969 the applicant and another airman, Mr Ellis, arranged for a helicopter flight to Nui Dat, where they planned to lunch with Mr Smith, a friend of the applicant.3. The applicant and his companions, Mr Ellis and Mr Smith, undertook an excursion by Land Rover to a field where mine-clearing operations were taking place. I understand that this excursion was not part of the official duties of any of the men on that day.4. Shortly before the applicant and his companions arrived at the minefield, one of the servicemen involved in a mine-clearing operation activated a booby trap resulting in injuries to several men in attendance.5. By the time the applicant and his companions arrived the injured men had been the subject of preliminary first-aid treatment with the application of field dressings. The applicant noted in particular that one of the injured men had an injury to the side of his face which was covered with a field dressing.6. On arrival at the minefield the applicant remained with the Land Rover approximately 15-20 metres from the injured men. He was unsure how long he and his companions remained at the scene but recalled waiting until a helicopter arrived to take the injured men away.7. The applicant and his companions then continued their trip for about 40 minutes, including passing through several villages, and returned to Nui Dat base.8. The applicant said that he had not witnessed injured servicemen prior to this event.9. He claimed that he was ‘shocked’, ‘sickened’ and upset by the sight of the injured men, and felt ‘useless’ at the time and had feelings of his own vulnerability.10. He said he believed that the incident continued to affect him during the remainder of his service and after his return to Australia.11. On return to Australia he did not seek treatment for any psychiatric symptoms but believed he was then exhibiting symptoms of depression. It appears that the applicant saw three psychiatrists between 2001 and 2005. Their diagnoses may be summarised as follows:· Dr Althey diagnosed the applicant as having dysthymic disorder, and considered that the applicant had suffered a depressive episode after his return from Vietnam in the context of a relationship breakdown at that time, which could be related to the subsequent development of dysthymic disorder.· Dr Barry was of the view that the applicant met all the requirements for a diagnosis of post traumatic stress disorder which she considered was related to experiences he had in Vietnam, although there was no particular incident in Vietnam that was responsible for this.· Dr Mulholland diagnosed both post traumatic stress disorder and dysthymic disorder. In his evidence before the Tribunal he relied upon the applicant’s account of the events of 9 November 1969 for the diagnosis of post traumatic stress disorder, however said that he believed the incident was only marginally sufficient for the purposes of considering whether or not it was a ‘traumatic event’.

Evidence

Evidence Before The Court

In my view no error of law arises in the Tribunal’s consideration of this issue.3. The Tribunal made a finding not open on Dr Barry’s evidence Although this was not raised as a question of law in the notice of appeal, Ms Carter Nicoll submitted during the hearing before me that the findings of Dr Barry were misrepresented in the Tribunal’s decision, that the Tribunal therefore misdirected itself on the evidence, and that the Tribunal made a finding not open on the evidence. In particular, counsel submitted that nowhere in the reports or in the transcript of the Tribunal hearing did Dr Barry conclude ‘that the minefield incident was, in itself, not sufficient to result in post traumatic stress disorder’ (par 37 Tribunal decision). I note that:· Dr Barry’s report dated 25 July 2003 contains statements including:o ‘During his tour of duty in Vietnam, he found a number of situations to be extremely stressful.’ (I note that the doctor lists four situations, one of which is a reference to an event at Nui Dat.)o In relation to post traumatic stress disorder: ‘During his time with the RAAF, Mr Byrne was involved in a number of incidents which he found traumatic during which he experienced a threat to his own life. He was also exposed to the general threatening environment which was life as an armed service personnel during the Vietnam War where he was exposed to the injury and loss of colleagues’.o ‘In particular, his time in Vietnam was experienced as traumatic and there was the other episode of the potentially life threatening incident on his return to Australia.’·Dr Barry’s further report dated 13 May 2005 contains statements including:o ‘Criterion A requires that the person has been exposed to “a traumatic event”. It is well known that most Vietnam Veterans have been exposed to a range of traumatic experiences rather than a specific “traumatic event”.’o ‘Mr Byrne felt under threat throughout his time in Vietnam. He felt threatened when visiting any of the local communities. He observed others injured whilst in Vietnam and he was well acquainted with personnel who were killed or injured during their tours of duty.’o ‘His experience mirrors the experience of many of the other Veterans whom I have assessed and whom the Department has accepted as experiencing trauma.’o ‘On his return to Australia, he learned of the death of one of the crewmen with whom he had worked closely in Vietnam. He reported feeling “extremely shocked” by learning of this man’s death. At this time, he said that “reality hit”. He subsequently went on to experience a period of significant depression over the next 18 months or so. Whilst in retrospect if (sic) was difficult for him to recall specific symptoms, it is quite likely that he experienced a period of Major Depression at that time.’o ‘Subsequent to this particular experience, he experienced another trauma during the field trip to Healsville which is documented in my report.’o ‘It is well documented that exposure to numbers of traumatic events has a cumulative effect in increasing the vulnerability to the development of post traumatic stress disorder.’o ‘The Review Board focused on “the event”. I hope that I have addressed the fact that it is not so much a specific event but exposure to a series of experiences which render the person vulnerable to the subsequent development of PTSD.’o ‘He certainly was exposed to enemy action and he saw the results of enemy action in other people and both of these experiences were traumatic for him as stated earlier.’

Decision

Reasons for decision

COLLIER J
The leading case articulating the process of reasoning the Tribunal is to undertake in considering a claim under the Act in respect of incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person, is the decision of the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The Full Court at 97-98 said as follows:1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.DECISION OF THE TRIBUNAL As I noted earlier in this judgment, the Tribunal was satisfied that the period of defence service relevant to the claim of the applicant, namely from 4 June 1969 until 15 May 1970, was operational service and eligible war service as those terms are defined in s 7 and s 6C of the Act. Further, the Tribunal was satisfied that there was evidence for the diagnoses of post traumatic stress disorder and dysthymic disorder in the reports of the psychiatrists Dr Athey and Dr Mulholland. The Tribunal was also satisfied that, notwithstanding the fact that the applicant was on leave on 9 November 1969, this did not affect his status of being allotted for operational service during that time.

Ratio Decidendi

Legal Principle Established

Established by: COLLIER J

In my view, this statement contains no error of law.4. The Tribunal took into account irrelevant considerations Although this was not raised as a question of law in the notice of appeal, Ms Carter Nicoll for the applicant submits that the Tribunal added improper additional criteria to the SoPs in question, and then found that the applicant did not satisfy those additional criteria. So far as I can ascertain, the additional criteria are alleged to be:·that an applicant needs to remember all the events leading up to a trauma·that only when one is ordered into a situation – as distinct from coming upon wounded soldiers during an excursion – can a person suffer post traumatic stress disorder. In my view these submissions are misconceived. In relation to the first submission, which refers to a comment of the Tribunal at par 36 of its decision, the comment of the Tribunal is simply part of the narrative of its reasoning as to why it is unable to accept the correctness of the applicant’s recall of the nature of his reactions to the sight of the wounded soldiers. The Tribunal was not stating an additional criterion in respect of each SoP, which the applicant failed to satisfy. In relation to the second submission, which relates to the Tribunal’s reference at par 38 of its decision to the report of Dr Mulholland, the comment of the Tribunal is again part of the narrative of its reasoning as to why it takes a different view of the evidence to Dr Mulholland. The issue is not whether or not the applicant had been ‘dragooned’ into an ‘operation’, the issue is that Dr Mulholland’s evidence is based upon a version of events presented to him by the applicant which appears at odds with what actually happened on 9 November 1969. Accordingly, this submission in my view does not raise any error of law in the decision of the Tribunal.5. The Tribunal failed to take into account Dr Mulholland’s evidence Although this was not raised as a question of law in the notice of appeal, Ms Carter Nicoll for the applicant submits that:· the Tribunal has not recorded Dr Mulholland’s evidence correctly· the Tribunal has not recorded that it was Dr Mulholland’s opinion that the breakdown in the relationship between the applicant and his girlfriend following his return from Vietnam was due to changes in him that seem to arise from his period in Vietnam· the Tribunal has erred in law in not taking account of a relevant consideration, namely the report of Dr Mulholland. I cannot accept this submission. As indicated at par 38 of its decision, the Tribunal clearly took into account the evidence of Dr Mulholland. However the Tribunal was satisfied beyond reasonable doubt, as provided in s 120(1), that in the context of the evidence as a whole including the medical evidence, there were sufficient grounds for making the determination that the incapacities suffered by the applicant were not war-caused. I note in particular:· the Tribunal’s consideration of the basis of Dr Mulholland’s report, namely the version of the events provided by the applicant, and the view thereof taken by the Tribunal· the reference in Dr Mulholland’s report to the breakdown of the applicant’s relationship with his girlfriend· the evidence of Dr Mulholland at the hearing before the Tribunal that so far as concerned criterion A in the Post Traumatic Stress Disorder SoP par 2(b), the information presented by the applicant ‘was a little bit marginal but perhaps I gave him the benefit of the doubt on it’.