Cunningham v Repatriation Commission

Case [2009] FCA 1272

FEDERAL COURT OF AUSTRALIA

Cunningham v Repatriation Commission [2009] FCA 1272

DEFENCE AND WAR – war–caused disease – statement of principles for depressive disorder – experiencing a severe psychosocial stressor – veteran experiencing severe seasickness on operational service – whether related to service – disposition to seasickness preceded operational service – whether fatal to claim that seasickness related to service.

APPEALS – appeal on question of law – notice of appeal – whether questions therein stated with precision pure questions of law.

Veterans’ Entitlements Act 1986 (Cth) s 196B(2), (14)
Administrative Appeals Tribunal Act 1975 (Cth) ss 44, 44AA
Federal Court Rules Order 53 r 3(2)

Australian Telecommunications Corporation v Lambrouglou (1990) 12 AAR 515 applied
Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 applied
Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137 cited
Comcare v Etheridge (2006) 149 FCR 522 applied
Commissioner of Taxation v Dixon (2006) 155 FCR 101 followed
Condell v Commissioner of Taxation [2007] FCAFC 44 followed
Price Street Professional Centre Pty Ltd v Commissioner of Taxation (2007) 97 ALD 593 applied
Repatriation Commission v Deledio (1998) 83 FCR 82 cited
Repatriation Commission v Yates (1995) 38 ALD 80 cited
Roncevich v Repatriation Commission (2005) 222 CLR 115 cited
Roper v Repatriation Commission (2008) 108 ALD 16 followed
Teoh v Minister for Immigration (1994) 49 FCR 409 applied
White v Repatriation Commission (2004) 39 AAR 67 considered

NEVILLE CUNNINGHAM v REPATRIATION COMMISSION

VID 846 of 2008

SUNDBERG J
9 NOVEMBER 2009
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 846 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

NEVILLE CUNNINGHAM
Appellant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

SUNDBERG J

DATE OF ORDER:

9 NOVEMBER 2009

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appellant have leave to amend his notice of appeal filed in the Federal Magistrates’ Court by adding the following questions of law:

(a)whether, having identified a stressor fitting within the definition of “severe psychosocial stressor” in clause 8 of the SoP No 58 the Tribunal was required to determine whether the stressor was related to service by applying s 196B of the Act? and

(b)whether the Tribunal was correct to hold that a pre‑existing condition can never give rise to a stressor within SoP No 58 of 1998 that is related to service within the meaning of s 196B of the Act?

2.The appeal be allowed.

3.The orders of the Federal Magistrates Court dismissing the appeal and its order as to costs be set aside, and in lieu thereof it be ordered that:

(a)the matter be remitted to the Administrative Appeals Tribunal for determination in accordance with the Court’s reasons, and

(b)the respondent pay the appellant’s costs of the appeal and of the proceedings in the Federal Magistrates Court.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


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Details
AGLC
Cunningham v Repatriation Commission [2009] FCA 1272
Case
[2009] FCA 1272
Decision Date

CaseChat Overview and Summary

In the case of Cunningham v Repatriation Commission, the appellant, Mr. Cunningham, appealed against a decision of the Administrative Appeals Tribunal (AAT) that denied his claim for compensation for a depressive disorder, which he claimed was related to his service in the Royal Australian Navy. The Federal Magistrates' Court dismissed the appeal, a decision which Mr. Cunningham sought to overturn. The primary issue before the Federal Court was whether the Tribunal correctly applied the relevant statutory provisions and Schedule of Pensions (SoP) Instrument No 58 of 1996 in reaching its conclusion that Mr. Cunningham's depressive disorder was not related to his service.

The Federal Court examined the application of clause 5(b) of the SoP, which requires that a severe psychosocial stressor related to the veteran's service must have occurred within two years before the clinical onset of the depressive disorder. The Court considered whether the Tribunal erred in finding that Mr. Cunningham's seasickness, which predated his service, could not be considered a stressor related to his service. The Court scrutinised the Tribunal's reasoning and found that it had not properly applied the relevant legal tests. The Tribunal had not considered whether the seasickness, despite its pre-existing nature, could still be related to service under the Act and the SoP. Moreover, the Tribunal did not address the applicability of section 196B of the Act, which deals with the consideration of pre-existing conditions in relation to service. The Court concluded that the Tribunal's decision was flawed due to these omissions and misapplications of the law.

The Court allowed the appeal and set aside the orders of the Federal Magistrates' Court, remitting the matter back to the AAT for reconsideration. The Court directed the AAT to determine whether the stressor identified by Mr. Cunningham fits within the definition of "severe psychosocial stressor" in clause 8 of the SoP and whether the stressor was related to his service by applying section 196B of the Act. The Court also ordered that the respondent pay the appellant's costs of the appeal and the proceedings in the Federal Magistrates' Court. This decision underscores the importance of meticulous application of statutory provisions and the need for tribunals to fully address all relevant legal issues in their deliberations.

Orders

Orders of the court

1. The appellant have leave to amend his notice of appeal filed in the Federal Magistrates’ Court by adding the following questions of law:

(a) whether, having identified a stressor fitting within the definition of “severe psychosocial stressor” in clause 8 of the SoP No 58 the Tribunal was required to determine whether the stressor was related to service by applying s 196B of the Act? and

(b) whether the Tribunal was correct to hold that a pre‑existing condition can never give rise to a stressor within SoP No 58 of 1998 that is related to service within the meaning of s 196B of the Act?

2. The appeal be allowed.

3. The orders of the Federal Magistrates Court dismissing the appeal and its order as to costs be set aside, and in lieu thereof it be ordered that:

(a) the matter be remitted to the Administrative Appeals Tribunal for determination in accordance with the Court’s reasons, and

(b) the respondent pay the appellant’s costs of the appeal and of the proceedings in the Federal Magistrates Court.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SUNDBERG J
At the time of the respondent’s decision there was in force SoP Instrument No 58 of 1996 concerning depressive disorder. Clause 3 of the SoP states that there is sound medical‑scientific evidence that depressive disorder can be related to relevant service rendered by veterans. Clause 4 states that at least one of the factors set out in clause 5 must be related to any relevant service rendered by the veteran. Clause 5 lists the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder with the circumstances of a veteran’s service. The only factor of present relevance is factor (b):experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder.The expression “severe psychosocial stressor” is defined asan identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.TRIBUNAL’S DECISION The Tribunal found that the appellant served in the Royal Australian Navy from 7 July 1968 to 18 June 1971, and that his two trips to Vietnam on HMAS Sydney from 17 November 1969 to 5 December 1969 and from 16 February 1970 to 5 March 1970 were operational service. It was common ground that the appellant had a depressive disorder. The Tribunal described the hypothesis relied on by the appellant as follows:the condition was war caused by the chronic sea sickness experienced during his operational service, with a resulting social isolation and depression at the possibility of being unable to serve at sea.The Tribunal identified the factor relied on as that in clause 5(b) of the SoP. Having found that the hypothesis of depression arising from severe seasickness was reasonable under the terms of clause 5(b) of the SoP, the Tribunal said:The question [then] is whether the Tribunal can be satisfied that the seasickness was not attributable to operational service and whether the clinical [onset] of the depressive disorder was within two years of that stressor. In relation to the latter question the records show a diagnosis of an acute anxiety state in March 1971. I am prepared to accept that as the date of clinical onset of his depressive state. This is supported by the evidence of Dr N Strauss, a consultant psychiatrist, who examined Mr Cunningham on 21 February 2007. However, it is clear that Mr Cunningham experienced the onset of seasickness on the two voyages prior to operational service. From his first exposure to the open sea on board a ship he experienced seasickness and it would seem clear that he had a constitutional predisposition to that ailment. It was only when he was in open seas that he suffered the illness with no ongoing symptoms once on dry land. That constitutional predisposition was the cause of the seasickness and the subsequent depression on the realisation that his long held ambition to be a sea going sailor was not to be achieved. Being a pre existing condition with the symptoms well established prior to operational service, I am satisfied that the seasickness was not war caused. As such, the depressive disorder cannot be accepted as war caused under Instrument 58 of 1998.FEDERAL MAGISTRATE’S REASONS

Ratio Decidendi

Legal Principle Established

Established by: SUNDBERG J

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