Gerzina v Repatriation Commission

[2003] FMCA 490

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GERZINA v REPATRIATION COMMISSION [2003] FMCA 490

ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – post traumatic stress disorder – Veterans Entitlements Act 1975 – war caused disease – whether diagnostic criteria for post traumatic stress disorder requires finding of “intense horror” or “horror” – meaning of “intense fear, helplessness or horror”.

Veterans Entitlements Act 1975, ss.9(1)(a), 9(1)(b), 13(1)

Administrative Appeals Tribunal Act 1975, s.44

Repatriation Commission v Cooke (1998) 160 ALR 17
Benjamin v Repatriation Commission (2001) 34 AAR 270
Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 335
Woodward v Repatriation Commission (2003) 200 ALR 332
Hill v Repatriation Commission (2001) FCA 1775
Repatriation Commission v Hill (2002) 69 ALD 581
Richardson v Austin (1911) 12 CLR 463
Harris v Repatriation Commission (2000) 32 AAR 84
Knight v Repatriation Commission (2002) FCA 103

Applicant: ALDO ANDRE GERZINA

Respondent: REPATRIATION COMMISSION

File No: MZ 668 of 2003

Delivered on: 7 November 2003

Delivered at: Melbourne

Hearing Date: 6 October 2003

Judgment of: McInnis FM

REPRESENTATION

Counsel for the Applicant: Mr Moore

Solicitors for the Applicant: Peter J Liefman

Counsel for the Respondent: Mr P. Hanks QC, with Ms J. McDonnell

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Application dated 1 April 2003 be dismissed.

2. The Applicant shall pay the Respondent’s costs pursuant to the Federal Court scale up to and including the date of transfer from the Federal Court to the Federal Magistrates Court and thereafter pursuant to Schedule 1 of the Federal Magistrates Court Rules with the costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 668 of 2003

ALDO ANDRE GERZINA

Applicant

and

REPATRIATION COMMISSION

Respondent

REASONS FOR JUDGMENT

1. By an application filed in the Federal Court and dated 1 April 2003 Aldo Andre Gerzina, the applicant, seeks to appeal from a decision of the Veterans Appeals Division of the Administrative Appeals Tribunal.  The decision which is the subject of the appeal was made by the AAT on 5 March 2003.  This application was transferred to the Federal Magistrates Court of Australia by order of the Federal Court made on 19 June 2003. 

2. The appeal relates to a decision made by the Administrative Appeals Tribunal following a decision before that tribunal of the Repatriation Commission made on 9 September 1999, affirmed by the Veterans Review Board (VRB) on 5 December 2000. 

3. The notice of appeal in the present application essentially raises a single ground of appeal.  The ground of appeal in the notice reads as follows:

   “The Tribunal erred in law in finding that the diagnostic criteria for Post Traumatic Stress Disorder (ICD_9-CM CODE 309.81) set out in the ‘Diagnostic and Statistical Manual of Mental Disorders’ Fourth Edition required it to find on the evidence before it that the Applicant's response to a traumatic event involved ‘intense horror’, and distinct from ‘horror’ simpliciter, before it could conclude that…