Fogarty v Repatriation Commission

Case [2002] FCA 1541

FEDERAL COURT OF AUSTRALIA

Fogarty v Repatriation Commission [2002] FCA 1541

WILLIAM FRANCIS FOGARTY  v  REPATRIATION COMMISSION

V 725 of 2000

RYAN J
13 DECEMBER 2002
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 725 of 2000

BETWEEN:

WILLIAM FRANCIS FOGARTY
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

RYAN J

DATE OF ORDER:

13 DECEMBER 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS:

1.THAT the application herein be amended by substituting Olive Mildred Fogarty for William Francis Fogarty (“the veteran”) as the applicant.

2.THAT so much of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 August 2000 as determined that the veteran’s ischaemic heart disease was not war-caused be set aside and, to that extent, the matter be remitted to the Tribunal to be heard and determined according to law.

3.        THAT the said decision of the Tribunal be otherwise affirmed.

4.        THAT there be no order as to costs.

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


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 725 of 2000

BETWEEN:

WILLIAM FRANCIS FOGARTY
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

RYAN J

DATE:

13 DECEMBER 2002

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. This is an application by way of appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of the Veterans’ Review Board that the conditions of ischaemic heart disease (“IHD”) and generalised anxiety disorder (“GAD”) suffered by William Francis Fogarty (“the veteran”) had not been war-caused.  The decision of the Tribunal was made on 24 August 2000 when the veteran was still living and he lodged the present appeal.  However, while the appeal was pending, the veteran died on 13 July 2001 and the present applicant, his widow, Olive Mildred Fogarty, was approved by the Repatriation Commission as the person to continue the appeal pursuant to s 126 of the Veterans’ Entitlement Act 1986 (“the Act”).  Accordingly, I shall order that the application to this Court be amended by substituting the said Olive Mildred Fogarty as the applicant.

  2. The veteran was born on 1 June 1922 and served in the Royal Australian Navy from 30 September 1940 to 4 January 1946.  That period of service is accepted on both sides as “eligible war service” as defined in the Act.  Because that service was rendered on Royal Australian Navy ships in South-Western Pacific waters, it is also common ground that the whole of the veteran’s service was “operational service” as defined in the Act. 

  3. The respondent Commission has conceded that the appeal should succeed in respect of the condition IHD and that such part of the Tribunal’s decision as is related to IHD should be set aside and the matter the subject of that part of the decision be remitted to the Tribunal to be heard and determined according to law.  The error of law which is accepted as infecting the IHD part of the Tribunal’s decision is its failure to…

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AGLC
Fogarty v Repatriation Commission [2002] FCA 1541
Case
[2002] FCA 1541
Decision Date

CaseChat Overview and Summary

Fogarty v Repatriation Commission involved a dispute concerning a veteran's entitlement to benefits under Australian law. The case was heard in the Federal Court of Australia, where the applicant, Mr. Fogarty, challenged the decision of the Tribunal regarding his eligibility for a pension adjustment based on his service-related disabilities. The central issue was whether the Tribunal had properly considered all relevant standards of proof (SoPs) in its assessment of the veteran's mental health condition, specifically Generalized Anxiety Disorder (GAD).

The legal issues revolved around whether the Tribunal had erred in its consideration of applicable SoPs and whether it had failed to make a specific finding on the existence of the veteran's claimed mental disorder. The Court examined whether the Tribunal had adequately applied the SoPs in force at different times and whether it had considered all relevant SoPs, as required by previous jurisprudence. The applicant argued that the Tribunal should have considered the SoP in force at the time of application and the current SoP, but did not demonstrate how this would have materially altered the outcome.

The Court found that while the Tribunal had indeed erred in not considering the SoP in force at the relevant time, this error was not material in the context of this case. The Court noted that there was no significant difference between the current SoP for "anxiety disorder" and the earlier GAD SoP. As a result, the Tribunal's errors, including the failure to conduct a preliminary inquiry into the existence of the claimed disorder, did not affect the outcome. Consequently, the application was successful in that it demonstrated the veteran's entitlement to an Extreme Disablement Adjustment based on his ischaemic heart disease, and the Court decided not to order costs.

The Court's decision resulted in the remitter to the Tribunal being limited to the consideration of the case made by the applicant regarding the veteran's ischaemic heart disease. The Court concluded with orders that reflected the successful outcome for the applicant concerning the pension adjustment, without imposing costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

RYAN J
As a general proposition, it is desirable, where the existence of any disease at all is in issue, for the Tribunal to make a specific finding on that issue so that it can then proceed to examine the disease or collection of symptoms (if any) which it has found against every available SoP and not merely those relied on by the applicant. Neither before the original decision-maker, the Veterans Review Board, nor the Tribunal, is the applicant obliged to raise every potentially applicable SoP. The decision-maker must therefore consider whether there are any other SoPs and not merely confine the decision to the case articulated by the applicant: Grant v Repatriation Commission (1999) 57 ALD 1; [1999] FCA 1629; Benjamin at [48]. However, before this Court, an applicant contending that the Tribunal has failed to consider the more beneficial of two applicable SoPs (given the reasoning in Grant) must point to that instrument and indicate how its application would have brought about a different result. No SoP more beneficial to the applicant has been indicated in the present proceedings. Mr De Marchi has confined himself to submitting that the Tribunal failed to consider the applicable SoP currently in force, although there was an accrued right to have the veteran’s circumstances also considered under the terms of the SoP in force at the time of application, if that earlier SoP would have yielded a result denied by the later SoP; see Repatriation Commission v Gorton (2000) 110 FCR 321 at [65] per Allsop J with whom Emmett J agreed. Clearly, the Tribunal did not consider the SoP actually in force immediately before it published its decision. However, in the circumstances of this case, I do not see that there is a material difference between the current “anxiety disorder” SoP and the earlier GAD SoP. Therefore, although I consider that the Tribunal erred in law both in failing to have regard to the “anxiety disorder” SOP of 2000, and in failing to conduct what I have called the preliminary inquiry (as it appears that the existence of the claimed mental disorder was in issue), those errors were not material in the result.ConclusionSince the applicant has failed to demonstrate a material error in relation to any condition which could be comprehended within those categorised as GADs, it follows that the remitter to the Tribunal must be confined to a consideration of the case which the applicant seeks to make out by contending that an entitlement to an Extreme Disablement Adjustment to the barrier pension arose by virtue of the veteran’s having suffered from IHD. Because the application has been successful to that extent, I consider it an appropriate exercise of the Court’s discretion to make no order as to costs. There will be orders accordingly.

Ratio Decidendi

Legal Principle Established

Established by: RYAN J

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