Kaluza v Repatriation Commission

Case [2014] FCA 1137

FEDERAL COURT OF AUSTRALIA

Kaluza v Repatriation Commission [2014] FCA 1137

Citation: Kaluza v Repatriation Commission [2014] FCA 1137
Appeal from: Kaluza v Repatriation Commission [2013] AATA 424
Parties: STAN KALUZA v REPATRIATION COMMISSION
File number: NSD 1414 of 2013
Judge: FOSTER J
Date of judgment: 23 October 2014
Catchwords: DEFENCE AND WAR – whether, in an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the two questions postulated by the applicant/veteran are questions of law – if so, whether, in considering the “raised facts” brought forward by the veteran in support of the hypotheses advanced by him for the purposes of s 120 and s 120A of the Veterans’ Entitlements Act 1986 (Cth), the Tribunal failed to apply the correct principles as explained in Kaluza v Repatriation Commission (2011) 280 ALR 621 and Repatriation Commission v Deledio (1998) 83 FCR 82
Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44(1)
Veterans’ Entitlements Act 1986 (Cth), ss 6C, 13(1)(b), 120, 120A
Cases cited: Kaluza v Repatriation Commission [2008] AATA 392
Kaluza v Repatriation Commission (2011) 280 ALR 621
Kaluza v Repatriation Commission [2013] AATA 424
Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55
Constable v Repatriation Commission [2005] FCA 928
Federal Commissioner of Taxation v Crown Insurance Services Ltd (2012) 207 FCR 247
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Constable (2006) 151 FCR 391
Repatriation Commission v Deledio (1998) 83 FCR 82
Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 260
Date of hearing: 11 November 2013
Date of last submissions: 15 November 2013
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 103
Counsel for the Applicant: Mr C Colborne
Solicitor for the Applicant: Vardanega Roberts
Counsel for the Respondent: Ms K Eastman SC
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1414 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

STAN KALUZA
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

FOSTER J

DATE OF ORDER:

23 OCTOBER 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The Application be dismissed.

2.The applicant pay the respondent’s costs of and incidental to the Application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1414 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

STAN KALUZA
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

FOSTER J

DATE:

23 OCTOBER 2014

PLACE:

SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION AND BACKGROUND

  1. This proceeding is an appeal to this Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), on two questions of law, from a decision of the Administrative Appeals Tribunal (Tribunal) given on 24 June 2013 (Kaluza v Repatriation Commission [2013] AATA 424) (Kaluza No 3).  Such an

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AGLC
Kaluza v Repatriation Commission [2014] FCA 1137
Case
[2014] FCA 1137
Decision Date

CaseChat Overview and Summary

Kaluza was a veteran who appealed the decision of the Tribunal in respect of his application for a war-caused disability pension. The Tribunal had found that Kaluza suffered from generalised anxiety disorder, alcohol dependence and hypertension, but not from post traumatic stress disorder or alcohol abuse, and that those conditions were not war caused. Kaluza argued that the Tribunal failed to properly consider the "raised facts" brought forward by him in support of the hypotheses advanced by him for the purposes of s 120 and s 120A of the Veterans’ Entitlements Act 1986 (Cth). Specifically, Kaluza contended that the Tribunal failed to apply the correct principles as explained in Kaluza v Repatriation Commission (2011) 280 ALR 621 and Repatriation Commission v Deledio (1998) 83 FCR 82.

The court considered whether the two questions postulated by Kaluza were questions of law and, if so, whether the Tribunal failed to apply the correct principles in considering the "raised facts". The court found that the questions were indeed questions of law and that the Tribunal had failed to properly consider the "raised facts" in accordance with the principles explained in Kaluza and Deledio. The court held that the Tribunal had not adequately weighed the evidence under s 120(1) of the Veterans’ Act to decide whether the hypotheses were disproved beyond reasonable doubt. The court concluded that the Tribunal's failure to properly consider the "raised facts" constituted a failure to apply the correct principles.

The court dismissed Kaluza's application and ordered that he pay the respondent's costs of and incidental to the Application. The court held that Kaluza's appeal was without merit and that the Tribunal's decision was correct. The court found that the Tribunal had properly considered the evidence and had reached a conclusion that was supported by the evidence. The court held that Kaluza's arguments were misdirected and that the Tribunal had not erred in law.

Orders

Orders of the court

1. The Application be dismissed.

2. The applicant pay the respondent’s costs of and incidental to the Application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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

In due course, it will be necessary for me to decide whether such a case was advanced before the Tribunal. THE DECISION OF THE TRIBUNAL IN KALUZA NO 3 The Tribunal which determined Kaluza No 3 was constituted by Ms N Bell, Senior Member, and Dr SH Toh. After dealing with certain introductory matters, at [9] of its Reasons the Tribunal set out the issues which it proposed to address in the following terms:ISSUESThe issues for us to consider are:(i) What was Mr Kaluza’s operational service?(ii) From what conditions does Mr Kaluza suffer?(iii) Are those conditions war caused? The Tribunal dealt with Issue 1 (What was Mr Kaluza’s operational service?) at [10]–[26] of its Reasons for Decision. At [25]–[26], the Tribunal said:We do not consider that the evidence and inferences urged on us are sufficient to satisfy us that on the balance of probabilities Mr Kaluza was on the flight on 14 February 1968. We find that they do not “do more than give rise to conflicting inferences of equal degrees of probability”. We find “that the choice between them is a matter of conjecture”. There is too much of a speculative nature. Nor are we satisfied that he was on the medical evacuation flight in January 1968 whose departure was delayed because of unserviceability.Mr Kaluza also said he had operational service on a flight in February 1969 that he says transported a coffin and SAS soldiers from Butterworth to Pearce. There is now no dispute that he was on a flight to Vietnam on 21-24 February 1969 and that he had operational service for those days. Mr Kaluza relied on events on that flight in relation to his claimed psychiatric condition and his alcohol related condition. As I have already mentioned, Mr Kaluza does not challenge the findings which the Tribunal made at [25]–[26] of its Reasons. For present purposes, therefore, it is common ground between Mr Kaluza and the Commission that Mr Kaluza undertook operational service during the period 21–24 February 1969 and that, on one of those days, the coffin incident occurred. At [27]–[80], the Tribunal discussed and determined Issue 2 (From what conditions does Mr Kaluza suffer?). At [27]–[33], the Tribunal said:27Through the course of these proceedings Mr Kaluza has raised as possible diagnoses post traumatic stress disorder, generalised anxiety disorder, anxiety disorder not otherwise specified, alcohol dependence and alcohol abuse. There is no dispute that he suffers from hypertension. 28In Repatriation Commission v Bawden [2012] FCAFC 176 the Full Court said:While there is no onus on a veteran to attach a label to the disease or injury manifest in his or her symptoms, if the disease or injury is alleged to be PTSD, the question of diagnosis is squarely raised and must be resolved.29We consider that this observation applies to all of the diagnoses urged on the Tribunal by Mr Kaluza at different stages in these proceedings. We must reach our conclusion as to the kind of disease(s) suffered by Mr Kaluza to the standard of reasonable satisfaction. In this regard we note the clear distinction drawn by the Full Court in Bawden between questions of diagnosis, all aspects of which are to be determined to the standard of reasonable satisfaction or on the balance of probabilities, and, on the other hand, questions of causation which are to be determined in accordance with the steps explained by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82. As the Full Court in Bawden said, that four step process is not concerned with the issue of whether the disease or injury occurred; rather, the question of diagnosis is governed by section 120(4) of the Veteran’s Entitlements Act 1986 which requires determination to the standard of reasonable satisfaction.30We also had regard to the Full Court’s judgment in Summers v Repatriation Commission [2012] FCAFC 104 in which the Court said that the question of whether Mr Summers had PTSD was “at least on its face, one of diagnosis involving expert medical opinion.” After extracting the definition of PTSD in clause 3 of the Statement of Principles concerning Post Traumatic Stress Disorder (SoP No. 5 of 2008), the Court said:For the Tribunal to be satisfied that Mr Summers suffered from PTSD it therefore had to be reasonably satisfied of the six matters in sub-cll (b)(A)-(F).31In addition, we had regard to the judgment of the Court in Repatriation Commission v Warren [2007] FCA 866 in which Kiefel J said: The function of the SoP, in general terms, is to identify the minimum factors which must be present in the circumstances of the veteran’s case, to provide the necessary linkage between the disease suffered and operational service. The factors necessarily refer to the disorder in question. The principal purpose of the definition of each of PTSD and alcohol dependence is to permit a determination as to whether the SoP applies to the condition as found by the Tribunal, presumably upon the basis of clinical diagnosis. The diagnostic criteria for the disorders in the SoP are said to be “those specified in DSM-IV, and are as follows”. The criteria are intended as part of the definition for the purpose of the application of the SoP.The anterior, or threshold, question for the tribunal is whether the veteran suffers from the disease as claimed. It is a distinct and separate statutory question, in the nature of a precondition to any entitlement to a pension. There is no provision of the VEA which expressly requires the tribunal to have regard to the SoP criteria in determining this question. The requirement that the tribunal be reasonably satisfied that the veteran suffers from the claimed disease will usually require medical opinion. A clinical diagnosis of a condition classified under DSM-IV would necessarily have regard to that manual and the criteria provided by it.32We note that the above paragraphs of the judgment in Warren were quoted in full by the Full Court in Summers.33From these statements of the Court we take that we must:ŸDecide the question of what diseases or injuries are suffered by Mr Kaluza as a separate question that is a precondition to any entitlement to pension;ŸDetermine all aspects of that question to the standard of reasonable satisfaction;ŸDetermine the question by reference to evidence of clinical diagnosis by medical experts that have, in turn, had regard to the diagnostic criteria provided for the relevant disease by DSM-IV and which in the cases of PTSD and anxiety and alcohol related disorders have been adopted in the definition part of the relevant SoPs.

Ratio Decidendi

Legal Principle Established

At [139], the Tribunal recorded its ultimate conclusions in the following terms:The Tribunal varies the decision under review and decides that Mr Kaluza suffers from generalised anxiety disorder, alcohol dependence and hypertension, but not from post traumatic stress disorder or alcohol abuse. The Tribunal further decides that Mr Kaluza’s generalised anxiety disorder, alcohol dependence and hypertension are not war caused.CONSIDERATIONThe Tribunal’s Task In Kaluza v Repatriation Commission (2011) 280 ALR 621 at 624 [15], the Full Court explained the approach which the Tribunal was required to take in respect of Mr Kaluza’s case as it was then known. In principle, the explanation of that task given by the Full Court applied to the way in which the Tribunal in Kaluza No 3 was obliged to carry out its task. The Full Court said:Mr Kaluza’s key conditions pertinent to this appeal are anxiety disorder and alcohol abuse. As he contends those conditions are war-caused based on operational service, the issues to be addressed by the Tribunal were as follows (adopting largely the submissions for Mr Kaluza):1The first question for the Tribunal was to identify the collection of relevant symptoms which the Tribunal was satisfied constituted the disease which the veteran contracted and which was comprehended by the claim. (Repatriation Commission v Budworth (2001) 116 FCR 200 (at [19]) (special leave refused [2002] HCATrans 303)).2If the Tribunal was satisfied that the symptoms constituted an injury or disease, as defined in s 5D of the Veterans’ Act, then the question of whether those symptoms were war-caused was to be resolved in accordance with s 120(1) of the Veterans’ Act as qualified by s 120(3) and s 120A (Budworth (at [19])).3In applying ss 120(1), 120(3) and 120A of the Veterans’ Act, the Tribunal was to consider all the material and determine whether:(i)it pointed to some fact or facts (the raised facts) which supported an hypothesis connecting the disease with the circumstances of operational service; and(ii)that hypothesis can be regarded as reasonable, if the “raised facts” are true.(Bushell v Repatriation Commission (1992) 175 CLR 408 (at 414)). 4If the “raised facts” pointed to one or more hypotheses of a connection, then the decision-maker must decide whether a Statement of Principles (SoP) was in force in respect of the “kind of disease” from which the veteran suffers (Repatriation Commission v Deledio (1998) 83 FCR 82 step two (at 97F) and Benjamin v Repatriation Commission (2001) 70 ALD 622 (at [55]) (special leave refused [2002] HCATrans 302)).5If an SoP is in force in respect of the kind of disease from which the veteran suffers, then the hypothesis is reasonable only if it is ‘upheld’ by the SoP in the sense of being ‘consistent with the “template” to be found in the SoP’ (Deledio step three (at 97G)). 6If an hypothesis is upheld by an SoP, or is not unreasonable under s 120(3), then the decision-maker must weigh the evidence under s 120(1) to decide whether the hypothesis is disproved beyond reasonable doubt (Deledio step four (at 97G) and Byrnes v Repatriation Commission (1993) 177 CLR 564 (at 571)). The claim succeeds if it is not so disproved.