Godwin v Repatriation Commission

Case [2008] FCA 576

FEDERAL COURT OF AUSTRALIA

Godwin v Repatriation Commission [2008] FCA 576

VETERANS’ ENTITLEMENTS – Veterans’ Entitlements Act1986 (Cth) – decision of Administrative Appeals Tribunal – subsequent s 31 review decision – s 31 review not beyond power – evidence before Commission “false” – “matter” may include new evidence – no res judicata or estoppel – no misuse of the s 31 power of review

Administrative Appeals Tribunal Act1975 (Cth) s 43(6)
Administrative Decisions (Judicial Review) Act1977 (Cth) ss 5, 6, 10(2)(b)
Veterans’ Entitlements Act 1986 (Cth) ss 31, 178(1)

Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353 cited
Browne v Dunn (1893) 6 R 67 cited
Davis v Repatriation Commission (1997) 74 FCR 577 followed
Hanna v Australian Postal Corporation (1990) 12 AAR 511 considered
Lilienthal v Migration Agents Registration Authority [2001] FCA 2 cited
Midland Metal Overseas Limited v Comptroller-General of Customs (1991) 30 FCR 87 followed
Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 considered
Murphy v Farmer (1988) 165 CLR 19 followed
Musgrave v Martin [2003] FCA 920 followed
Repatriation Commission v Richardson [2001] FCA 1626 followed
W J & F Barnes Pty Ltd v Federal Commissioner of Taxation (1957) 96 CLR 294 followed

JOHN ROBERT GODWIN v REPATRIATION COMMISSION
NSD 1886 OF 2007

FLICK J
30 APRIL 2008
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1886 OF 2007

BETWEEN:

JOHN ROBERT GODWIN
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

FLICK J

DATE OF ORDER:

30 APRIL 2008

WHERE MADE:

SYDNEY

THE ORDERS OF THE COURT ARE:

1.Application dismissed.

2.The Applicant to pay the costs of the Respondent of and incidental to the application.

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1886 OF 2007

BETWEEN:

JOHN ROBERT GODWIN
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

FLICK J

DATE:

30 APRIL 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. The Application for an Order of Review in these proceedings seeks to challenge a decision of the Repatriation Commission made on 10 September 2007. The jurisdiction of the Court is invoked pursuant to ss 5 and 6 of the Administrative Decisions (Judicial Review) Act1977 (Cth).

  2. The decision of the Commission was the product of a review undertaken pursuant to s 31(4), (6) and (7) of the Veterans’ Entitlements Act1986 (Cth). The result of the review undertaken by the Commission’s delegate was that the delegate was “satisfied beyond reasonable doubt that Mr Godwin did not experience a severe service-related stressor nor did he suffer a service related psychiatric illness”. The delegate went on to conclude that he was “therefore satisfied beyond reasonable doubt that his PTSD is not war-caused”.

  3. A number of grounds are set forth in the Application as filed. One matter which the Applicant contends assumes particular importance is the fact…

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AGLC
Godwin v Repatriation Commission [2008] FCA 576
Case
[2008] FCA 576
Decision Date

CaseChat Overview and Summary

In the matter of Godwin v Repatriation Commission, the applicant, Mr Godwin, sought review of a decision regarding his entitlement to a pension under the Veterans' Entitlements Act 1986. The primary dispute centred on whether Mr Godwin's post-traumatic stress disorder (PTSD) arose from a war-related incident, specifically whether he had witnessed an event during his military service that could be classified as a severe stressor. The case was initially heard by the Administrative Appeals Tribunal (AAT) in 2005, which determined that Mr Godwin was entitled to a pension based on his PTSD. However, subsequent to this decision, the Repatriation Commission conducted a review under section 31 of the Act, which led to a reconsideration of Mr Godwin's eligibility for the pension.

The legal issues that the court needed to address were whether the Commission's review under section 31 of the Veterans' Entitlements Act 1986 was justified, and whether Mr Godwin's PTSD was genuinely attributable to a war-related incident. The primary question was whether the Commission had sufficient evidence to conclude that Mr Godwin did not witness the specific event he claimed to have seen, which was pivotal in determining the origin of his PTSD.

The court found that the Repatriation Commission was justified in conducting a review under section 31 of the Act. The key point in the court's reasoning was the availability of a new report from Writeway Research Service Pty Ltd dated 24 February 2007, which contradicted Mr Godwin's account of the incident. The report, based on extensive research into official records, concluded that the event Mr Godwin described did not occur in the manner he claimed. The court accepted that this new evidence, which was not available to the AAT in 2005, was sufficient to warrant a review. The Commission's decision to vary the pension payment was therefore upheld, as it was found that Mr Godwin did not experience a severe service-related stressor, and consequently, his PTSD was not war-caused.

In light of the findings, the court ordered that Mr Godwin's pension be varied, in accordance with the Repatriation Commission's decision. The new pension rate was to be effective from a date determined by the Commission, reflecting the conclusion that Mr Godwin's PTSD was not related to his military service.

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

FLICK J
The Commission then determined the rate of pension and Mr Godwin again applied to the Veterans’ Review Board. The Board affirmed the Commission’s decision and on 22 May 2006 Mr Godwin applied to the Administrative Appeals Tribunal for review of the decision which had been affirmed. It was that decision of the Tribunal which was published on 28 August 2007. That decision was that the Applicant was “entitled to pension at the special rate pursuant to section 24 of the Veterans’ Entitlements Act 1986 as and from 5 May 2005”. THE TRIBUNAL’S 2005 DECISION AND THE SECTION 31 REVIEW The significance of the review undertaken pursuant to s 31 of the 1986 Act is that the delegate reached a very different conclusion as to the events relied upon by Mr Godwin. The Administrative Appeals Tribunal in 2005 in determining the eligibility of Mr Godwin for a pension concluded that it could not be satisfied that he had not witnessed the sampan incident. That Tribunal relevantly concluded:[71] … the question is whether the Tribunal is satisfied beyond reasonable doubt that Mr Godwin’s incapacity due to PTSD does not arise from a war-caused disease. If it is not so satisfied, beyond reasonable doubt, the claim must succeed.[72] There was no challenge to Mr Godwin’s credit, and the Tribunal was satisfied that he was a witness of credit who had given a consistent account of his experiences to the doctors who assessed him, and to the Tribunal.[73] The Tribunal accepted that no formal record of either the Gurkha incident or the sampan incident, or indeed the New Guinea incident was put before it, but was also satisfied that Mr Josephs’ research did not extend to all possible sources. Further, in relation to the sampan incident, an American Swift Boat may have been involved, which was likely to mean that Australian records would not be made. The Tribunal was mindful Mr Josephs did not check any American records, or ship’s logs from the archives, and concluded that there may have been no record of the sampan incident, or that it may have been recorded where Mr Josephs research did not extend.…[80] The Tribunal accepted that the template in Instrument No.3 of 1999 had been satisfied, and that Mr Godwin had been subjected to a severe stressor as defined there, in that he witnessed the sampan incident during his operational service. The Tribunal was satisfied that this was the cause of the development of his PTSD. [81] On the evidence of the Applicant, and the medical evidence therefore, the Tribunal could not be satisfied beyond reasonable doubt that Mr Godwin did not witness the sampan incident. Witnessing that event satisfied the definition of "experiencing a severe stressor" in the SoP, and led to the development of Mr Godwin’s PTSD. Accordingly Mr Godwin’s PTSD can be held to be war-caused pursuant to section 9 of the Act.Before the Tribunal in 2005 were two reports prepared by Writeway Research Service Pty Ltd, one dated 2 March 2002 and the other dated 16 July 2004.

Ratio Decidendi

Legal Principle Established

Established by: FLICK J

The delegate when making his decision recited that, unlike the Tribunal, there was now available a further report of the incident said to have been witnessed by Mr Godwin. This was the report from Writeway Research Service Pty Ltd dated 24 February 2007. The delegate sated:The claim for PTSD may be refused only if it can be shown beyond reasonable doubt, that Mr Godwin did not experience, witness or confront an event that involved actual or threat of death or serious injury or a threat to his or other people’s physical integrity.On 24 February 2007, a report was received from Writeway Research Services [Writeway], in relation to the incident in Vung Tau harbour which Mr Godwin had described in his evidence to the Tribunal and to the Board and in histories he provided to various psychiatrists. The report’s findings (in summary) were that:● There was no reference in the HMAS Sydney’s records of such an incident;●A number of personnel were posted on (and in boats around) the Sydney as sentries and observers;● These personnel were required to report significant incidents;●A civilian vessel being destroyed by machine-gun fire in sufficiently close proximity to the Sydney to allow for the observation from the Sydney of body parts of the victims would have almost certainly been reported by these personnel;● The Sydney’s escort, the HMAS Vampire, was berthed in the vicinity of the Sydney;● There was no reference in the Vampire’s records of such an incident; ●There was no reference in the Commander US Naval Forces Monthly Historical Supplement April 1967 to such an event; the only incidents recorded are an attack on an LST in the Long Tau River, the inspection and detention of a civilian vessel by an US patrol boat near the mouth of the Long Tau River and an inspection and detention of three civilian vessels by a US unit at Cat Lo. These events occurred at a significant distance from the anchorage of the Sydney and do not, in any event, correspond to the description of the event provided by Mr. Godwin.A copy of the Writeway report is attached.OPERATION OF S 31(4), (6) & (7) OF THE ACTSubsection 31(4) of the Act provides that the Commission, if it is satisfied that evidence before it when it made a decision was false in a material particular, may review the decision and vary it. The subsection further provides that the Commission may set a date, which it considers to be appropriate in all the circumstances, from which the variation shall operate. Similarly, subsection 31(6), provides that where the Commission is satisfied that having regard to a matter which affects the payment of pension (being a matter that was not before the Commission when the decision to grant pension was made) that pension should be cancelled or suspended or is being paid at a higher rate than it should be, the Commission may by a determination in writing cancel, suspend or decrease the rate of pension. Subsection 31(7) provides that the date of effect of such a determination may be earlier than the date on which the determination is made.Having considered the report submitted by Writeway on 24 February 2007, together with the official records on which it was based, I am satisfied beyond reasonable doubt that the event described by Mr. Godwin in his evidence to the Tribunal and the Board and in the histories he provided to various psychiatrists did not occur or did not occur in the manner described. I am therefore satisfied beyond a reasonable doubt that the evidence provided by Mr. Godwin and the reports provided by Dr Hayes, Dr. Allnutt and Professor Quadrio contained material which was false and misleading within the terms of subsection 31(4).I am also satisfied that matters which affect the payment of pension, and which have been detailed in the Writeway report received on 27 February 2007 were not before the Commission when it made its decision and that pension should now be varied.For the reasons given above, I am satisfied beyond reasonable doubt that Mr Godwin did not experience a severe service-related stressor nor did he suffer a service related psychiatric illness. I am therefore satisfied beyond reasonable doubt that his PTSD is not war-caused.SECTION 31 OF THE VETERANS’ ENTITLEMENTS ACT1986 (CTH)