Fenner v Repatriation Commission

Case [2005] FCA 27

FEDERAL COURT OF AUSTRALIA

Fenner v Repatriation Commission [2005] FCA 27

VETERANS’ AFFAIRS – nature of hypothesis – whether the Administrative Appeals Tribunal (the Tribunal) erred in identifying the hypotheses put forward by the appellant on the basis that the Tribunal defined the hypotheses too narrowly or included in the hypotheses detailed factual claims that were not part of the hypotheses as put by the appellant – whether the Tribunal erred in determining only on the balance of probabilities whether or not the facts upon which the hypotheses were based did or did not occur – whether the Tribunal erred in failing to take into consideration the beneficial nature of the Veterans’ Entitlements Act 1986 (Cth).

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Veterans’ Entitlements Act 1986 (Cth) ss 9, 13, 119(1)(f), 119(1)(g), 119(1)(h), 120(1), 120(3), 120A(3)

Repatriation Commission v Deledio (1998) 83 FCR 82 applied
Bull v Repatriation Commission (2001) 34 AAR 326; [2001] FCA 1832 cited
Parnell-Schoneveld v Repatriation Commission (2003) 74 ALD 37; [2003] FCA 153 cited
Grundman v Repatriation Commission (2001) 66 ALD 125; [2001] FCA 892 cited
Roncevich v Repatriation Commission [2002] FCA 1458 cited
Repatriation Commission v Bey (1997) 79 FCR 364 cited
Roncevich v Repatriation Commission (2003) 75 ALD 345; [2003] FCAFC 146 cited
Roncevich v Repatriation Commission [2004] HCATrans 379 cited
Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192 cited
Bushell v Repatriation Commission (1992) 175 CLR 408 cited
Byrnes v Repatriation Commission (1993) 177 CLR 564 cited
Browne v Dunn (1893) 6 R 67 (HL) cited
Reid v Kerr (1974) 9 SASR 367 cited
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 cited
Haberfield v Department of Veterans Affairs as Delegate for Comcare (2002) 121 FCR 233; [2002] FCA 1579 cited
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1990) 185 CLR 259 cited
Repatriation Commission v Nugent [2003] FCA 1184 cited
Repatriation Commission v Turner [2004] FCA 1184 cited
Dunlop v Repatriation Commission [2002] FCA 1400 cited

Dunlop v Repatriation Commission [2003] FCAFC 201 cited
Repatriation Commission v Crane [2004] FCAFC 86 cited
White v Repatriation Commission [2004] FCA 633 cited

JUERGEN KLAUS FENNER v REPATRIATION COMMISSION

NTD 6 of 2004

MANSFIELD J
2 FEBRUARY 2005
DARWIN

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

NTD 6 OF 2004

ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

JUERGEN KLAUS FENNER
APPELLANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

2 FEBRUARY 2005

WHERE MADE:

DARWIN

THE COURT ORDERS THAT:

1.        The appeal is allowed.

2.The decision of the Administrative Appeals Tribunal made on 8 April 2004 is set aside.

3.The application of Juergen Klaus Fenner to review the decision of the Repatriation Commission rejecting his claim to benefits under the Veterans’ Entitlements Act 1986 (Cth) in respect of the conditions of Alcohol Abuse and Post Traumatic Stress Disorder is remitted to the Administrative Appeals Tribunal for rehearing according to law.

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Details
AGLC
Fenner v Repatriation Commission [2005] FCA 27
Case
[2005] FCA 27
Decision Date

CaseChat Overview and Summary

The case of Fenner v Repatriation Commission involves the appellant, Juergen Klaus Fenner, who appealed against the decision of the Administrative Appeals Tribunal (AAT) that dismissed his claim for benefits under the Veterans’ Entitlements Act 1986 (Cth). Fenner sought benefits for Alcohol Abuse (AA) and Post Traumatic Stress Disorder (PTSD), claiming they were caused by his operational service. The Tribunal found that the appellant's AA and PTSD were not war-caused, a decision the appellant sought to overturn in the Federal Court.

The primary legal issues in the appeal were whether the Tribunal erred in law by not considering all relevant evidence and failing to apply the beneficial nature of the Act. Specifically, the appellant argued that the Tribunal did not consider all periods of operational service and did not adequately apply the provisions of s 119 of the Act, which allows the Tribunal to act according to substantial justice and take into account difficulties in ascertaining facts due to the passage of time and deficiencies in official records.

The court held that the Tribunal did not err in law by not considering a period of service as operational, as the relevant document from the Department of Defence did not support the claim. Regarding the application of s 119, the court found that the Tribunal's failure to consider certain evidence and the beneficial nature of the Act did not constitute an error of law. However, the Tribunal's identification of the hypothesis regarding the appellant's exposure to a severe stressor was flawed, which led to an error in the Tribunal's overall approach. Consequently, the appeal was allowed, the Tribunal's decision was set aside, and the matter was remitted for rehearing.

The final orders of the court were that the appeal was allowed, the decision of the AAT made on 8 April 2004 was set aside, and the appellant's application for review of the Repatriation Commission's decision was remitted to the AAT for rehearing. Additionally, the Repatriation Commission was ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Administrative Appeals Tribunal made on 8 April 2004 is set aside.

3. The application of Juergen Klaus Fenner to review the decision of the Repatriation Commission rejecting his claim to benefits under the Veterans’ Entitlements Act 1986 (Cth) in respect of the conditions of Alcohol Abuse and Post Traumatic Stress Disorder is remitted to the Administrative Appeals Tribunal for rehearing according to law.

4. The Repatriation Commission do pay to Juergen Klaus Fenner his costs of the appeal.

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

MANSFIELD J
The Tribunal identified the hypothesis as requiring the HMAS Sydney being only about 1100 yards from a full scale battle. The finding that the appellant did not observe a major battle within close proximity to HMAS Sydney is not expressed to be beyond reasonable doubt. The Tribunal has not referred to the unchallenged and confirmatory evidence of Berryman or Cunnington about the fear of those (or some of those) on board. It has not referred in any detail to the statement of Rear Admiral Loosli, or to Commodore Mulcare’s assessment that there was danger to HMAS Sydney, and that actions were taken to minimise it. It has not referred to the unchallenged context to the appellant’s service at that time, as discussed in [40] above. That may be a consequence of its erroneous identification of the hypothesis. If, upon review, the Tribunal determines that a reasonable hypothesis is raised that the appellant experienced a severe stressor on that visit of HMAS Sydney to Vung Tau, those matters (together with the appellant’s evidence) may need to be addressed to determine whether one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or whether another fact which is inconsistent with the hypothesis is proved beyond reasonable doubt, so that the hypothesis is disproved beyond reasonable doubt.CONCLUSION For those reasons, I consider that the Tribunal has erred in law in the manner identified. I therefore allow the appeal and set aside the Tribunal’s decision of 8 April 2004. I remit the application of the appellant to the Tribunal for review of the decision of the respondent for rehearing. The costs of the appeal should follow the event, so the respondent is ordered to pay to the appellant his costs of the appeal. Finally, I comment upon the respondent’s acknowledgement before the Tribunal that the appellant suffers from AA and PTSD. On the medical evidence, that was clearly a sensible and appropriate acknowledgement. Such an acknowledgement was, and in the absence of particular circumstances should be, understood as no more than an acknowledgement of the existence of a medical illness. It was not intended to be, and was not, an acknowledgement of there being a causative connection between the illness and the appellant’s operational service, notwithstanding the definition of the illnesses of AA and PTSD in the relevant SoPs. The respondent should not be discouraged from such sensible acknowledgements in appropriate circumstances by the fear of the acknowledgement incorporating a statutory definition including connection; if such an acknowledgement of connection is to be made, the full nature of the acknowledgement will no doubt be clearly expressed.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

After those findings, and in terms of s 120(1) of the Act, the Tribunal concluded that it was satisfied beyond reasonable doubt that there is no sufficient ground for making the determination that the appellant’s AA and PTSD are war-caused. The decision of the respondent was therefore affirmed.CONSIDERATION OF THE GROUNDS OF APPEAL There are two grounds of appeal which can be dealt with shortly. The first ground of appeal argued orally was that the Tribunal limited the totality of the applicant’s operational service by not taking into account all of the periods of operational service between 11 November 1966 and 5 February 1967. The submission is based upon a document from the Department of Defence in the appeal book. However, in my judgment, it is based upon a misreading of that document. The document sets out the periods of time that the appellant was posted to HMAS Sydney, including the period from 11 November 1966 to 5 February 1967. The document refers to the Instrument signed by the Minister for Defence Industry, Science and Personnel on 23 December 1997, which is also included in the appeal book. The Instrument determines the periods of operational service in respect of the persons who served on a series of vessels in the defence forces over that period. In respect of HMAS Sydney, the periods of operational service were the seven periods which the Tribunal noted, each of which are part of the periods during which the appellant was posted to HMAS Sydney. Although the appellant served on the HMAS Sydney between 11 November 1966 and 5 February 1967, the Instrument does not support the assertion that that period of service was operational service. There is no other evidence that it was operational service. Accordingly, I do not accept that the Tribunal failed to take into account a period of operational service as alleged. It has not been shown that the Tribunal erred either in fact or in law in determining the periods of the appellant’s operational service. It was next contended that the Tribunal erred in law in failing to take into account the beneficial nature of the Act, and in particular the provisions of s 119 of the Act. Section 119 relevantly provides that the respondent, and on review the Tribunal, in conducting a determination on a claim or application for benefits under the Act, is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just. The Tribunal by s 119(1)(g) is directed to act according to substantial justice and the substantial merits of the case without regard to legal form and technicalities. Finally, s 119(1)(h) provides that the Tribunal:‘(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.’