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 consideredNEVILLE 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
AppellantAND: 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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- AGLC
- Cunningham v Repatriation Commission [2009] FCA 1272
- Case
- [2009] FCA 1272
- Decision Date
CaseChat Overview and Summary
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
Ratio Decidendi
Legal Principle Established
Established by: SUNDBERG J
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