Hardman v Repatriation Commission

Case [2005] FCAFC 83

FEDERAL COURT OF AUSTRALIA

Hardman v Repatriation Commission [2005] FCAFC 83

VETERAN’S ENTITLEMENTS – Administrative Law – claim by veteran that he sustained depressive disorder during operational service in the Navy – where Tribunal rejected hypothesis as not reasonable by impermissible fact finding

Veterans’ Entitlements Act 1986 (Cth), ss 120(1), 120(3), 120A

Hardman v Repatriation Commission [2004] FCA 1174, reversed
Bull v Repatriation Commission (2001) 188 ALR 756, cited
Bushell v Repatriation Commission (1993) 175 CLR 408, applied
Byrnes v Repatriation Commission (1993) 177 CLR 564, applied
East v Repatriation Commission (1987) 16 FCR 517, cited
Hill v Repatriation Commission [2005] FCAFC 23, cited
Meehan v Repatriation Commission (2002) 35 AAR 353, cited
Repatriation Commission v Deledio (1998) 83 FCR 82, followed

GARY JAMES HARDMAN v REPATRIATION COMMISSION
NSD 1440 OF 2004

BLACK CJ, FRENCH AND GYLES JJ
13 MAY 2005
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1440 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

GARY JAMES HARDMAN
APPELLANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

BLACK CJ, FRENCH AND GYLES JJ

DATE OF ORDER:

13 MAY 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be allowed.

2.        The judgment of the primary judge be set aside.

3.The decision of the Administrative Appeals Tribunal given on 3 March 2004 be set aside and the matter remitted to the Tribunal for reconsideration according to law.

4.The respondent pay the appellant’s costs of the appeal and of the proceedings before the primary judge.

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 1440 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

GARY JAMES HARDMAN
APPELLANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

BLACK CJ, FRENCH AND GYLES JJ

DATE:

13 MAY 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

  1. Gary James Hardman (the appellant) was born on 14 March 1947.  He enlisted in the Royal Australian Navy in 1963.  Following basic training he was posted to HMAS Parramatta.  He went to sea as an Ordinary Seaman and sailed to Singapore where the ship undertook exercises and patrols along the Malayan and Borneo coasts.  This was at the time of the Confrontation between Indonesia and Malaya.  One of the tasks of the Royal Australian Navy was to interdict Indonesian fishing vessels smuggling arms and ammunition into Malaya.  The appellant commenced operational service on 17 August 1964.  He claimed to have witnessed or been involved in certain stressful incidents whilst on operational service which ceased on 11 August 1966.

  2. The appellant claimed that as a result of these incidents and the attitude of his superiors to them, he suffered post-traumatic stress disorder (PTSD) manifested principally by excessive drinking.  The appellant was discharged from the Navy in 1972.  He continued to drink excessively and developed ischaemic…

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AGLC
Hardman v Repatriation Commission [2005] FCAFC 83
Case
[2005] FCAFC 83
Decision Date

CaseChat Overview and Summary

The case of Hardman v Repatriation Commission involved a dispute regarding the onset of depression in relation to a claim for a service-related disability. The appellant, Hardman, sought compensation for depression allegedly caused by his military service. The Tribunal had previously determined that the clinical onset of Hardman's depression could not have occurred within two years of his appendectomy, which was a critical period for the claim. The primary judge had found that the Tribunal had erred in its determination and had misapplied the legal principles outlined in the Deledio case. The appeal to the court was centred on whether the Tribunal had correctly identified and applied the relevant principles in assessing Hardman's claim.

The legal issue before the court was whether the Tribunal had erred in its application of the principles set out in Deledio in determining the hypothesised clinical onset of depression. Specifically, the court had to consider whether the Tribunal correctly identified if there were facts in the material that suggested a clinical onset within the required two-year period. The court also needed to determine if the Tribunal had correctly assessed whether the hypothesis raised by the material was reasonable under the applicable Statement of Principles (SoP).

The court found that the Tribunal had indeed erred in its application of the Deledio principles. The court held that the Tribunal had engaged in fact-finding when it should have only been considering whether there were facts in the material that pointed to the required hypothesis. According to the Deledio case, the Tribunal should not have determined the exact onset date but rather assessed if the material suggested a clinical onset within the two-year period. The court also noted that the Tribunal did not properly consider whether the hypothesis raised by the material was reasonable under the SoP. Therefore, the court concluded that the Tribunal's determination was flawed and required reconsideration.

The court allowed the appeal, set aside the primary judge's judgment, and remitted the matter back to the Tribunal for reconsideration in accordance with the law. The court also ordered that the respondent pay the appellant's costs of the appeal and the proceedings before the primary judge.

Orders

Orders of the court

1. The appeal be allowed.

2. The judgment of the primary judge be set aside.

3. The decision of the Administrative Appeals Tribunal given on 3 March 2004 be set aside and the matter remitted to the Tribunal for reconsideration according to law.

4. The respondent pay the appellant’s costs of the appeal and of the proceedings before the primary judge.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BLACK CJ, FRENCH AND GYLES JJ
The error on a question of law identified in the appeal to the Court was:‘Did the Tribunal err in making its findings on the hypothesised clinical onset of depression within 2 years of the Applicant having his appendectomy at the Cottage hospital?’and the ground of appeal was expressed as follows:‘The Tribunal found that “this material overwhelmingly suggests a clinical onset of depression no earlier than 1969”. In arriving at that finding, the Tribunal erroneously engaged in fact finding and failed to determine whether there were facts raised by the material that pointed to clinical onset within the 2 years required by the SoP.’There was no appeal in relation to the finding concerning para 5(c).THE PRIMARY JUDGE’S REASONS FOR DECISION It was accepted by both parties before the primary judge that the relevant principles which the Tribunal was bound to apply were those set out by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio) at 97–98:‘At the risk of being repetitious we would restate the course which the Tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.’

Ratio Decidendi

Legal Principle Established

Established by: BLACK CJ, FRENCH AND GYLES JJ

Full text does not contain this section.