Gerzina v Repatriation Commission

[2004] FCAFC 96

FEDERAL COURT OF AUSTRALIA

Gerzina v Repatriation Commission [2004] FCAFC 96

VETERANS’ AFFAIRS – disease – post-traumatic stress disorder – whether requires reaction of “horror” or of “intense horror”

ADMINISTRATIVE  LAW – whether interpretation of DSM-IV is a question of fact or law

Veterans’ Entitlements Act 1986 (Cth) ss 9(1), 13(1)

Benjamin v Repatriation Commission (2001) FCA 1879 referred to

ALDO ANDRE GERZINA v REPATRIATION COMMISSION
V 1060 of 2003

BLACK CJ, HEEREY AND BENNETT JJ
3 MAY 2004

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1060 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	ALDO ANDRE GERZINA APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGES:	BLACK CJ, HEEREY AND BENNETT JJ
DATE OF ORDER:	3 MAY 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.There be no orders 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 1060 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	ALDO ANDRE GERZINA APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGES:	BLACK CJ, HEEREY AND BENNETT JJ
DATE:	3 MAY 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1. The appellant appeals from a judgment of McInnis FM given on 7 November 2003:   Gerzina v Repatriation Commission [2003] FMCA 490. The learned Federal Magistrate dismissed the appellant’s appeals under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal which affirmed the respondent Repatriation Commission’s decision rejecting a claim for a pension under Pt II of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).

2. The condition relevant for present purposes was an alleged condition of post‑traumatic stress disorder (“PTSD”).  The issue raised by the appeal is whether the Tribunal erred in law in considering the construction of the diagnostic criteria for PTSD in

   
   

   the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (“DSM-IV”).  That criterion is relevantly as follows:

   “Diagnostic criteria for 309.81 Posttraumatic Stress Disorder

   A. The person has been exposed to a traumatic event in which both of the following were present:

   (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others

   (2)the person's response involved intense fear, helplessness, or horror.”

3. In essence, the argument on the appeal was that the Tribunal erred in elevating DSM-IV to the position of a statute and further misconstruing it by regarding the adjective “intense” as qualifying the words “helplessness” and “horror” as well as “fear”. The submission of senior counsel for the respondent was that this was not a question of law and therefore not a matter as to which an appeal lay under s 44(1). We note that this issue was not raised before the learned Federal Magistrate who understandably therefore embarked…