FEDERAL COURT OF AUSTRALIA
Demczuk v Repatriation Commission [2003] FCA 1188
VETERANS’ AFFAIRS – Appeal from Administrative Appeals Tribunal – whether Tribunal erred in applying the relevant Statements of Principle (SoP) – whether Tribunal erred in making findings of fact in determining whether there was a reasonable hypothesis in accordance with the relevant SoPs.
Veteran’s Entitlements Act 1986 (Cth)
Byrnes v Repatriation Commission (1993) 177 CLR 564 followed
Repatriation Commission v Deledio (1998) 83 FCR 82 followed
Repatriation Commission v Keeley [2000] FCA 532; (2000) 98 FCR 108 cited
Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321 cited
Lees v Repatriation Commission [2002] FCAFC 398; [2002] 36 AAR 484 cited
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited
Mason v Repatriation Tribunal [2000] FCA 1409 cited
Delidio v Repatriation Commission (1997) 47 ALD 261 cited
Morales v Minister for Immigration & Ethnic Affairs (1995) 60 FCR 550 cited
Arnott v Repatriation Commission (2001) 106 FCR 83 cited
McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 cited
Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 200 ALR 332 consideredVICTOR DEMCZUK v REPATRIATION COMMISSION
S 441 OF 2003
MANSFIELD J
29 OCTOBER 2003
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 441 OF 2003
BETWEEN:
VICTOR DEMCZUK
APPLICANTAND:
REPATRIATION COMMISSION
RESPONDENTJUDGE:
MANSFIELD J
DATE OF ORDER:
29 OCTOBER 2003
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1. The application by way of appeal is allowed.
2.The application by way of cross-appeal is allowed.
3.The decision of the Administrative Appeals Tribunal made on 31 March 2003, to the extent that:
(a)it confirmed the decision of a delegate of the respondent rejecting the applicant’s claim to a pension entitlement in respect of generalised anxiety disorder;
(b)it set aside the decision of a delegate of the respondent rejecting the applicant’s claim to a pension entitlement in respect of alcohol abuse and determined that the applicant is entitled to a pension in respect of alcohol abuse;
is set aside.
4.The application of the applicant to a pension entitlement in respect of:
(a)generalised anxiety disorder; and
(b)alcohol abuse;
is remitted to the Administrative Appeals Tribunal for re-hearing according to law.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 441 OF 2003
BETWEEN:
VICTOR DEMCZUK
APPLICANTAND:
REPATRIATION COMMISSION
RESPONDENT
JUDGE:
MANSFIELD J
DATE:
29 OCTOBER 2003
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
Introduction
This is an application by way of appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 31 March 2003. By direction of the Chief Justice, it is to be heard by a single Judge. The Tribunal:
(1)confirmed the decision of a delegate of the respondent rejecting the claim by the applicant for pension entitlement under the Veteran’s Entitlements Act 1986 (Cth) (the Act) in respect of the…
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- AGLC
- Demczuk v Repatriation Commission [2003] FCA 1188
- Case
- [2003] FCA 1188
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around the interpretation and application of sections 120 and 120A of the Act and the Alcohol Schedule of the Veterans’ Entitlements Act. The Court had to determine whether the AAT misapplied the law by misunderstanding the criteria for establishing a war-caused disease under the Act and by incorrectly applying the term “stressful events” instead of “experiencing a severe stressor” as defined in the Alcohol Schedule. Additionally, the Court examined whether the AAT’s findings were internally consistent, particularly regarding the timing of the clinical onset of alcohol abuse.
The Court found that the AAT had not misapplied the law as argued by the Commission. The Tribunal’s determination that there was no evidence to show when the condition of alcohol dependence became clinically manifest was correctly interpreted as referring to alcohol dependence and not alcohol abuse. The Tribunal had separately addressed the timing of the onset of alcohol abuse, aligning with the views of the Full Court in Lees v Repatriation Commission. The Court held that the AAT’s findings were consistent and that there was a reasonable hypothesis connecting the disease of alcohol abuse with the circumstances of Mr. Demczuk’s war service. Consequently, the Court concluded that the disease was war-caused, and the AAT’s decision in this regard was correct.
The Federal Court allowed both the appeal and the cross-appeal. The decision of the AAT that rejected the applicant’s claim for a pension in respect of generalised anxiety disorder and upheld the rejection of the claim for alcohol abuse was set aside. The Court remitted the application for a pension entitlement in respect of generalised anxiety disorder and alcohol abuse to the AAT for re-hearing according to law.
Orders
Orders of the court
1. The application by way of appeal is allowed.
2. The application by way of cross-appeal is allowed.
3. The decision of the Administrative Appeals Tribunal made on 31 March 2003, to the extent that:
(a) it confirmed the decision of a delegate of the respondent rejecting the applicant’s claim to a pension entitlement in respect of generalised anxiety disorder;
(b) it set aside the decision of a delegate of the respondent rejecting the applicant’s claim to a pension entitlement in respect of alcohol abuse and determined that the applicant is entitled to a pension in respect of alcohol abuse;
is set aside.
4. The application of the applicant to a pension entitlement in respect of:
(a) generalised anxiety disorder; and
(b) alcohol abuse;
is remitted to the Administrative Appeals Tribunal for re-hearing according to law.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: MANSFIELD J
As I understood the submissions made on behalf of the respondent on the cross-appeal, there were three points of criticism of the Tribunal’s decision. The principal proposition was that the Tribunal operated under some fundamental misconceptions regarding the proper operation of ss 120 and 120A of the Act and the Alcohol SoP. A secondary and supplementary submission was that the Tribunal erred in addressing the matters in factor 5(b) of the Alcohol SoP because the Tribunal referred to ‘stressful events’ rather than the term ‘experiencing a severe stressor’ used in factor 5(b) and then as defined in the Alcohol SoP. It was argued that the term in the 2000 Anxiety SoP and in the 1994 Anxiety SoP ‘stressful event’ had a different and more general meaning than the term ‘experiencing a severe stressor’ in the Alcohol SoP, and the Tribunal had wrongly applied the more general term. Thirdly, it was argued (as an indication also of the more general erroneous approach of the Tribunal) that the Tribunal contradicted itself in concluding that ‘there is no evidence to show when this condition [alcohol dependence or alcohol abuse] became clinically manifest’ in subsequently determining that the applicant suffered alcohol abuse which became clinically manifest within two years of the stressor which it found to exist.CONSIDERATION It is convenient to deal with the latter argument first. In my judgment it represents a misreading of the Tribunal’s reasons in the passages quoted in par [22] above. As I read that passage, the finding of the Tribunal that: ‘… there is no evidence to show when this condition became clinically manifest’ is a finding in relation to the condition of alcohol dependence, rather than to the condition of alcohol abuse. The focus of the Tribunal’s consideration in that paragraph of its reasons is the condition of alcohol dependence. The concluding sentence refers specifically to alcohol dependence. The subsequent paragraph in the reasons specifically addresses alcohol abuse. Earlier in the reasons, the Tribunal noted that alcohol dependence and alcohol abuse are distinct diseases. It was clearly aware that they are separate conditions and has approached them separately. It has separately addressed the finding as to when there was the clinical onset of alcohol abuse. It has made that finding on the basis of the applicant’s evidence, albeit apparently with reservations as appears in the passage in par [22] above. Its approach to the timing of the clinical onset of alcohol abuse is consistent with the views of the Full Court (Heerey, Moore and Kiefel JJ) in Lees v Repatriation Commission [2002] FCAFC 398; (2002) 36 AAR 484 at [13] – [14], 488 – 489. In the light of that conclusion of fact, the Tribunal reached the view that there was material raising a reasonable hypothesis connecting the disease with the circumstances of the applicant’s war service, and that there is no sufficient ground for the Tribunal to be satisfied beyond reasonable doubt to determine that the disease was not war-caused. In accordance with s 120, therefore, it determined that the disease was war-caused.