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 citedJUERGEN 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
ApplicantAND:
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
ApplicantAND:
REPATRIATION COMMISSION
Respondent
JUDGE:
MANSFIELD J
DATE:
22 MARCH 2007
PLACE:
DARWIN (VIA VIDEO LINK)
REASONS FOR JUDGMENT
INTRODUCTION
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.
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.
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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- Fenner v Repatriation Commission [2007] FCA 406
- Case
- [2007] FCA 406
- Decision Date
CaseChat Overview and Summary
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
Ratio Decidendi
Legal Principle Established
Established by: MANSFIELD J
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