Fenner v Repatriation Commission

Case [2007] FCA 406

FEDERAL COURT OF AUSTRALIA

Fenner v Repatriation Commission [2007] FCA 406

VETERANS’ ENTITLEMENTS – appeal from Administrative Appeals Tribunal – whether injury war-caused – whether Tribunal properly applied s 120(1) of the Veterans’ Entitlements Act 1986 (Cth)

Veterans’ Entitlement Act 1986 (Cth) s 120(1)
Administrative Appeals Tribunal Act 1975 (Cth)

Fenner v Repatriation Commission (2005) 218 ALR 122 cited
Repatriation Commission v Deledio (1998) 83 FCR 82 followed
Roncevich v Repatriation Commission [2002] FCA 1458 cited
Hill v Repatriation Commission (2005) 218 ALR 251 cited
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited
Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 cited
Commonwealth v Smith (1989) 18 ALD 224 cited
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 followed
SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546 cited
Mines v Repatriation Commission (2004) 86 ALD 62 cited

JUERGEN KLAUS FENNER v REPATRIATION COMMISSION

NTD 17 OF 2006

MANSFIELD J
22 MARCH 2007
DARWIN (VIA VIDEO LINK)


IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

NTD 17 OF 2006
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY HACK DP AND CARSTAIRS

BETWEEN:

JUERGEN KLAUS FENNER
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

22 MARCH 2007

WHERE MADE:

DARWIN(VIA VIDEO LINK)

THE COURT ORDERS THAT:

1.The decision of the Administrative Appeals Tribunal of 8 September 2006 be set aside.

2.The matter be remitted to the Administrative Appeals Tribunal for reconsideration according to law, limited to the applicant’s claim in respect of his condition of alcohol abuse.

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


IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

NTD 17 OF 2006
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY HACK DP AND CARSTAIRS

BETWEEN:

JUERGEN KLAUS FENNER
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

MANSFIELD J

DATE:

22 MARCH 2007

PLACE:

DARWIN (VIA VIDEO LINK)

REASONS FOR JUDGMENT

INTRODUCTION

  1. Mr Fenner has fought long and hard to establish his entitlement to a disability pension under the Veterans’ Entitlement Act 1986 (Cth) (the Act) in respect of claims for post traumatic stress disorder (PTSD) and for alcohol abuse.

  2. He is now 57 years old.  As a young man, he enlisted in the Royal Australian Navy on 13 October 1965.  He was then only 15 ½ years old.  His Navy service ceased on 11 November 1969.  Between April 1967 and June 1968, Mr Fenner made seven trips to South Vietnam as a stoker on HMAS Sydney.  He claims to have suffered those two conditions as a result of that service.

  3. Mr Fenner first claimed a disability pension under the Act as a result of those conditions, or of one or other of them, on 30 April 2001.  Both the Repatriation Commission in August 2001 and then the Veterans’ Review Board in September 2002 rejected the claim.  In April 2004, the Administrative Appeals Tribunal (the AAT) affirmed…

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AGLC
Fenner v Repatriation Commission [2007] FCA 406
Case
[2007] FCA 406
Decision Date

CaseChat Overview and Summary

In the matter of Fenner v Repatriation Commission, the primary dispute centred on whether Mr Fenner's alcohol abuse and alcohol dependence during his service in Vietnam were attributable to war-related injuries. The case was heard and determined by the Administrative Appeals Tribunal (AAT) and subsequently reviewed by a higher court. The central issue for the court was to determine whether the Tribunal had correctly applied the four-step process outlined in the Deledio decision in assessing whether Mr Fenner's condition was war-caused. Specifically, the court needed to ascertain whether the Tribunal properly evaluated the reliability of Mr Fenner's evidence given his diagnosed antisocial personality disorder, which involves deceit and manipulation.

The court's reasoning focused on the Tribunal's application of the Deledio test and its conclusion regarding Mr Fenner's reliability as a witness. The court found that the Tribunal did not adequately address the implications of Mr Fenner's antisocial personality disorder on his reliability. The court concluded that this failure constituted a significant error in the Tribunal's process, as it did not sufficiently consider the impact of Mr Fenner's disorder on the truthfulness of his accounts of the severe stressors he claimed to have experienced during his service. Consequently, the court determined that the Tribunal's decision needed to be set aside and the matter remitted for reconsideration. This reconsideration was to be limited to the applicant's claim concerning his condition of alcohol abuse, ensuring that the Tribunal properly evaluated Mr Fenner's reliability in light of his diagnosed personality disorder.

Orders

Orders of the court

1. The decision of the Administrative Appeals Tribunal of 8 September 2006 be set aside.

2. The matter be remitted to the Administrative Appeals Tribunal for reconsideration according to law, limited to the applicant’s claim in respect of his condition of alcohol abuse.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MANSFIELD J
In Deledio, the fourth step was explained as follows at 97-98: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.THE TRIBUNAL DECISION The Tribunal’s first step was to identify the condition or conditions from which Mr Fenner was suffering. There was no issue about Mr Fenner suffering from alcohol abuse or alcohol dependence. The Tribunal then proceeded to determine whether that condition was war-caused by addressing the four step process described in Deledio. Clause 5(b) of the AA SoP required the experiencing of a severe stressor within two years of the clinical onset of alcohol abuse. The definition of “experiencing a severe stressor” is also set out above. The severe stressors ultimately relied upon, as described by the Tribunal, were the “scare charges” and the “full steam ahead incident”. The “scare charges” severe stressor was identified as occasions that HMAS Sydney was in port in Vietnam when small explosive devices were detonated in the water adjacent to the vessel to deter potential underwater saboteurs. Mr Fenner, as a stoker in the boiler room, was working below the waterline on those occasions and said the explosions were extremely loud and caused the hull to vibrate, and caused him intense fear and helplessness because he did not know whether they were merely scare charges, so he did not know if the vessel was in danger and might be sunk. He particularly described an incident when HMAS Sydney was moored in Vung Tau Harbour during the Tet Offensive. The “full steam ahead incident” occurred in about February 1968, when the engine room received the order to proceed at full steam. Mr Fenner believed a submarine had been detected and he feared a torpedo attack. The Tribunal accepted that those incidents fitted the AA SoP hypothesis, as they were capable of falling within the definition of “experiencing a severe stressor”. It also accepted that clinical evidence of the onset of alcohol abuse appeared within two years of Mr Fenner’s operational service in Vietnam. It then asked, as it was required to do by the fourth Deledio step, whether it was satisfied beyond reasonable doubt that Mr Fenner did not in fact experience a severe stressor within that two year period, and so would be satisfied beyond reasonable doubt that Mr Fenner’s condition of alcohol abuse did not arise from a war caused injury. That, as the Tribunal addressed the matter, required its consideration of Mr Fenner’s reliability as a witness. It concluded, to its reasonable satisfaction (see s 120(4) of the Act) that Mr Fenner suffers from the condition known as antisocial personality disorder. It noted that deceit and manipulation are “central features” of that disorder, so there was a heightened need to consider the history provided by Mr Fenner by reference, where possible, to collateral sources.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

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