FEDERAL COURT OF AUSTRALIA
Hill v Repatriation Commission [2004] FCA 851
VETERANS’ AFFAIRS – claim for a disability pension under Veterans’ Entitlements Act 1986 (Cth) (VE Act) in respect of post traumatic stress disorder, psycho-active substance abuse or dependence and electrocution – whether the Administrative Appeals Tribunal erred in not following the decision-making process required by ss 120 and 120A of the VE Act and as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 – whether the applicant’s hypothesis connecting his diseases to his operational service was disproved beyond reasonable doubt
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth) ss 9(1), 13(1), 120, 120AHill v Repatriation Commission (2001) 66 ALD 293; [2001] FCA 1775 cited
Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192 cited
Byrnes v Repatriation Commission (1993) 177 CLR 564 applied
Repatriation Commission v Keeley (2000) 98 FCR 108 cited
Repatriation Commission v Gorton (2001) 110 FCR 321 cited
Fogarty v Repatriation Commission [2003] FCAFC 136 cited
Repatriation Commission v Deledio (1998) 83 FCR 82 applied
Dunlop v Repatriation Commission [2003] FCAFC 201 applied
Repatriation Commission v Crane [2004] FCAFC 86 cited
Repatriation Commission v Whetton (1991) 31 FCR 513 cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied
Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407 applied
Repatriation Commission v Thompson (1988) 44 FCR 20 applied
Willcocks v Comcare (2001) 66 ALD 119 applied
Waterford v The Commonwealth (1987) 163 CLR 54 applied
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 appliedKENNETH NORMAN HILL v REPATRIATION COMMISSION
D 13 of 2003
MANSFIELD J
1 JULY 2004
DARWIN
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
D 13 OF 2003
ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
KENNETH NORMAN HILL
APPLICANTAND:
REPATRIATION COMMISSION
RESPONDENTJUDGE:
MANSFIELD J
DATE OF ORDER:
1 JULY 2004
WHERE MADE:
DARWIN
THE COURT ORDERS THAT:
1. The application is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
D 13 OF 2003
ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
KENNETH NORMAN HILL
APPLICANTAND:
REPATRIATION COMMISSION
RESPONDENT
JUDGE:
MANSFIELD J
DATE:
1 JULY 2004
PLACE:
DARWIN
REASONS FOR JUDGMENT
INTRODUCTION
This is an application by way of appeal under s 44(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 17 November 2003. It relates to the applicant’s claim for disability pension first made on 24 September 1997 under s 13 of the Veterans’ Entitlements Act 1986 (Cth) (the VE Act) in respect of three conditions: post traumatic stress disorder (PTSD), psycho-active substance abuse or dependence (alcohol abuse), and electrocution.
The applicant served in the Royal Australian Navy between 23 October 1965 and 19 March 1978. He…
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- Hill v Repatriation Commission [2004] FCA 851
- Case
- [2004] FCA 851
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CaseChat Overview and Summary
The Court examined the process the Tribunal was required to follow as outlined in the decision of Repatriation Commission v Deledio (1998) 83 FCR 82. The Full Court, in that case, set out a clear process for the Tribunal to determine whether a hypothesis linking a claimant's injury or disease with their service was reasonable. This involved a series of steps: first, determining whether the material presented suggested a hypothesis connecting the injury or disease with the service; second, ascertaining whether there was an applicable SoP; and third, evaluating whether the hypothesis was reasonable by comparing it to the SoP. The Court found that the Tribunal had followed this process correctly, and had determined that Mr. Hill's hypothesis did not satisfy the SoP for PTSD or alcohol abuse because he did not experience a stressor or stressful event during the Sea Venom incident that involved intense fear, helplessness, or horror, nor did he exhibit subjective symptoms of increased stress. Based on these findings, the Tribunal concluded that Mr. Hill's claims for disability payments were not substantiated.
The Court concluded that the Tribunal's decision was correct and dismissed Mr. Hill's application. It affirmed the rejection of his claim for disability payments for PTSD, alcohol abuse, or electrocution. The Court found no error in the Tribunal's adherence to the required decision-making process and its application of the relevant SoP.
Orders
Orders of the court
1. The application is dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: MANSFIELD J
In the light of those findings, the Tribunal concluded:‘The hypothesis linking Mr. Hill’s PTSD and alcohol abuse with the Sea Venom incident is not reasonable. Neither the SoP for PTSD nor the SoP for alcohol abuse are satisfied because in Mr. Hill’s case he did not experience a stressor nor a stressful event during the Sea Venom incident and he certainly did not have a response involving intense fear, helplessness or horror, nor subjective symptoms of increased stress.’ The Tribunal then affirmed the decision to reject the claim for disability payments for alcohol abuse or PTSD or electrocution.CONSIDERATION The argument of the applicant on this application is founded in large measure upon the assertion that the Tribunal failed to follow the decision-making process required by ss 120 and 120A of the VE Act as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio). The Full Court (Beaumont, Hill and O’Connor JJ) at 97 – 98 described the steps to be taken where there is a claim in respect of incapacity for injury or disease which attracts those provisions. Their Honours said:‘At the risk of being repetitious we would restate the course which the Tribunal is to take in a case, such as the present, (that is, 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 would 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.