FEDERAL COURT OF AUSTRALIA
Guy v Repatriation Commission [2002] FCA 525
SOCIAL SECURITY - Veterans affairs - war-caused injury or disease - gastro-oesophageal reflux disease - alcohol dependence or alcohol abuse - generalised anxiety disorder - whether Tribunal's failure to provide sufficient reasons constitutes error of law - use of statement of principles.
SOCIAL SECURITY - requirement that rendered operational service - whether failure to consider aspects of service as operational service constitutes error of law - whether service material to questions before Tribunal.
Veterans’ Entitlements Act 1986 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Acts Interpretation Act 1901 (Cth)Byrnes v Repatriation Commission (1993) 177 CLR 564 Appl
Repatriation Commission v Keeley (2000) 98 FCR 108 Apl
Repatriation Commission v Deledio (1998) 83 FCR 82 Cons
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 75 ALJR 1105 Cited
Repatriation Commission v O’Brien (1985) 155 CLR 422 Cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Appl
Repatriation Commission v Thompson (1988) 82 ALR 352 Cited
Waterford v The Commonwealth of Australia (1987) 71 ALR 673 Cited
Repatriation Commission v O’Brien (1985) 155 CLR 422 Cited
Applicant V346 of 2000 v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 536 Cited
Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1997) 76 FCR 513 ApplCOLIN MACKENZIE GUY v REPATRIATION COMMISSION
Q164 OF 2001COOPER J
BRISBANE
30 APRIL 2002
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q164 OF 2001
BETWEEN:
COLIN MACKENZIE GUY
APPLICANTAND:
REPATRIATION COMMISSION
RESPONDENTJUDGE:
COOPER J
DATE OF ORDER:
30 APRIL 2002
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The decision of the Administrative Appeals Tribunal given on 22 June 2001 to affirm the decision under review be set aside.
2.The matter be remitted back to the Administrative Appeals Tribunal for reconsideration according to law, by a differently constituted Administrative Appeals Tribunal.
3.The respondent pay the applicant’s costs, if any, of the application to be taxed if not agreed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q164 OF 2001
BETWEEN:
COLIN MACKENZIE GUY
APPLICANTAND:
REPATRIATION COMMISSION
RESPONDENT
JUDGE:
COOPER J
DATE:
30 APRIL 2002
PLACE:
BRISBANE
REASONS FOR JUDGMENT
BACKGROUND
On 3 February 1998, the applicant lodged with the Department of Veterans’ Affairs (“the Department”) a claim for a disability pension and medical treatment for a medical condition of gastro-oesophageal reflux disease, said to be service related. The claim was rejected by the Repatriation Commission (“the Commission”) on 13 March 1998. The decision of the Commission was affirmed by the Veterans’ Review Board on 29 November 1999.
On 27 January 1999, the applicant lodged with the Department a claim for a disability pension and medical treatment for alcohol dependence or alcohol abuse, said to be service related. The claim was rejected by the Commission on 9 March 1999. The decision of the Commission was…
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- AGLC
- Guy v Repatriation Commission [2002] FCA 525
- Case
- [2002] FCA 525
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the AAT erred in failing to consider specific periods of the applicant's service and certain incidents as material to the applicant's claim. The applicant argued that the AAT did not properly consider the nature of his service in Hong Kong and the alleged boiler incident as potentially stressful events under the relevant statutory instruments. The court needed to determine if the AAT's failure to address these aspects constituted a jurisdictional error or misapplication of the law.
The court found that the AAT had indeed failed to consider periods of the applicant's service and specific incidents that were material to the applicant's claim. The court highlighted that the AAT did not make any findings on whether the voyage to Hong Kong, the stay in Hong Kong, or the return voyage constituted "operational service" as defined in the Act. Similarly, the AAT did not determine if the boiler incident qualified as a stressful event under the relevant statutory instrument. The court concluded that these omissions constituted an error of law, as the service and incidents were clearly material to the applicant's entitlements. The court also noted that the Repatriation Commission's concession in the Federal Court that the service was material was inconsistent with their previous position before the AAT.
The court ordered that the AAT's decision be set aside and the matter be remitted back to the AAT for reconsideration by a differently constituted tribunal. Additionally, the court ordered the respondent to pay the applicant's costs of the application, if any, to be taxed if not agreed.
Orders
Orders of the court
1. The decision of the Administrative Appeals Tribunal given on 22 June 2001 to affirm the decision under review be set aside.
2. The matter be remitted back to the Administrative Appeals Tribunal for reconsideration according to law, by a differently constituted Administrative Appeals Tribunal.
3. The respondent pay the applicant’s costs, if any, of the application to be taxed if not agreed.
Note:
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: COOPER J
Mr Smith referred to the boiler incident in Hong Kong by reference to the criteria in SoP Instrument No 76 of 1998 relating to Alcohol Dependence or Alcohol Abuse in his final submission. As I stated earlier, this SoP revoked the earlier Instrument No 5 of 1994. However it was not applicable to the circumstances of the applicant and was not applied. Nonetheless, the Advocate said :“And it gives examples here of threat of :... serious injury or death, engagement of the enemy on which the casualty is to participate in the observation of casualty clearance.Etcetera. Now, the only one that might come into that would be the boiler room incident in Hong Kong but, as I pointed out, this would not be operational service. Not only that, but nobody, not even Dr Carter, has suggested that he’s experienced intense fear, helplessness or horror. As far as we can see, he just reacted as any - he was as scared as any normal person would have been and, not only that, - he was drinking heavily before that. He had said under cross-examination and in his written statements, he got shore leave most of time he was in port; he used to go out and get drunk most of the time.”(Emphasis added) The AAT made no findings as to whether or not the voyage to Hong Kong, the stay in Hong Kong for the refit, or the return voyage constituted “operational service” for the purposes of the Act. It also made no finding as to whether the incident of near electrocution during descaling of the ship’s boiler, claimed by the applicant as a stressful event as defined in SoP Instrument No 5 of 1994, occurred, and if so, whether it satisfied the definition. The failure of the AAT to make findings relevant to this period of the applicant’s service, having regard to s 43(2B) of the AAT Act, enables this Court to infer that such service was not considered by the AAT to be material. This then may reveal a misapplication of the law to the facts or jurisdictional error: Repatriation Commission v O’Brien (1985) 155 CLR 422 at 446; Minister for Immigration and Multicultural Affairs v Yusuf at [69]; Applicant V346 of 2000 v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 536 at [59]. The service in question was clearly material to the questions before the AAT, as were the incidents which the applicant pointed to as occurring during that period of service and which he contended amounted to stressful events for the purpose of SoP Instrument No 5 of 1994. The respondent’s position before this Court is that the respondent concedes that the particular service was operational service which was material to the deliberations of the AAT. Such a concession, I am satisfied, was not made to the AAT; it is inconsistent with the final submissions of the respondent’s Advocate as appears from the transcript of the proceedings before the AAT Why the service was not regarded as material to the AAT does not appear from its reasons. However, failure to treat it as material involved an error of law in my view.