Delahunty v Repatriation Commission [2004] FCA 309
SOCIAL WELFARE AND SERVICES - VETERANS' AFFAIRS - appeal from decision of Administrative Appeals Tribunal - veterans' entitlements - disability pension - post traumatic stress disorder - psychiatric condition - service in the Royal Australian Navy - operation service in Korea - causal connection of psychiatric condition with operational service - war-caused injuries or diseases - factors in the relevant Statement of Principles - reasonable hypothesis - veteran's belief that the sinking of a sampan/junk killed women and children leading to post traumatic stress disorder - "experiencing a severe stressor" - "stressor" does not include totally irrational perception/baseless apprehension - consider the position and knowledge of the veteran - mixed subjective and objective test - Administrative Appeals Tribunal failed to apply correct definition of "extreme stressor" - (CTH) Veterans' Entitlement Act 1986 ss 9, 120, 120A - appeal allowed
GRAHAM DELAHUNTY v REPATRIATION COMMISSION N1539 OF 2003
TAMBERLIN J SYDNEY 26 MARCH 2004
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N1539 OF 2003
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
GRAHAM DELAHUNTY APPELLANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGE:
TAMBERLIN J
DATE OF ORDER:
26 MARCH 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The appeal is allowed with costs.
The decision of the AAT is set aside and the matter remitted to the AAT for determination in accordance with law.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N1539 OF 2003
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
GRAHAM DELAHUNTY APPELLANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGE:
TAMBERLIN J
DATE:
26 MARCH 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from a decision of the Administrative Appeals Tribunal (“the AAT”), which affirmed a decision of the Veterans’ Review Board (“the Board”) refusing a claim for post traumatic stress disorder made by the appellant, Mr Delahunty (“the veteran”).
The ground of appeal in the Notice of Appeal was that it was not open to the AAT to hold that the material before it did not raise as facts that the veteran had “experienced a severe stressor” as defined in clause 8 of the relevant Statement of Principles (“SoP”), namely that there was no material before the AAT that the veteran had experienced, witnessed or was confronted with an event or events that involved actual or threat of death or serious injury, or threat to another person’s physical integrity.
When the matter came on for hearing, the above ground was not modified in substance but there was added to the formulation a statement that there was material that pointed to the veteran having witnessed an event that involved actual death…
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.
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AGLC
Delahunty v Repatriation Commission [2004] FCA 309
Case
[2004] FCA 309
Decision Date
CaseChat Overview and Summary
The case of Delahunty v Repatriation Commission involved a veteran, Mr Delahunty, who sought to amend his grounds of appeal against the Repatriation Commission's decision. The dispute centred on the interpretation and application of the definition of "experiencing a severe stressor" under the Schedule of Pensions (SoP). The matter was heard and determined by the Federal Court of Australia.
The legal issues that the court needed to resolve included whether it was permissible to alter the hypothesis presented during the hearing, whether such a change would cause prejudice to the respondent, and whether there was any merit in the proposed reformulation of the hypothesis. The court had to consider the impact of the proposed amendment on the fairness and integrity of the proceedings, as well as the likelihood of a different outcome if the hypothesis were to be altered.
The court found that permitting the amendment to the hypothesis would have a significant effect on the conduct of the hearing and would potentially prejudice the Repatriation Commission. It was also noted that the proposed hypothesis lacked substance, as it did not align with the veteran's own evidence. Consequently, the court held that it was not permissible to reformulate the hypothesis in the manner proposed by the veteran. Furthermore, the court determined that granting leave for the amendment would not lead to a different outcome and would ultimately be futile.
In light of the above findings, the court allowed the appeal, set aside the decision of the Administrative Appeals Tribunal, and remitted the matter to the AAT for determination in accordance with law. The court also ordered that the appeal be allowed with costs.
Orders
Orders of the court
1. The appeal is allowed with costs.
2. The decision of the AAT is set aside and the matter remitted to the AAT for determination in accordance with law.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
TAMBERLIN J
A change in the formulation of the hypothesis would have had a significant effect on the conduct of the hearing. The hypothesis advanced on this ground is that a death on the vessel, with post traumatic stress following as a consequence, is sufficient to satisfy the SoP definition of “experiencing a severe stressor”. This has an air of unreality, because the evidence of the veteran was that he would not have experienced post traumatic stress if he had not believed that a woman and children were aboard the vessel. In my view, it is not permissible to “split” or reformulate the hypothesis as contended for by the veteran on appeal. It would cause prejudice to the respondent, and in any event, there does not appear to be any substance in it. In these circumstances, I do not consider that leave should be granted to permit the grounds of appeal to be amended to make this contention.CONCLUSION For the above reasons, and having regard to the ultimate outcome in favour of the veteran, the appeal should be allowed with costs. The decision of the AAT should be set aside and the matter remitted to the AAT for determination in accordance with law.