FEDERAL COURT OF AUSTRALIA
Kaluza v Repatriation Commission [2010] FCA 1244
Citation: Kaluza v Repatriation Commission [2010] FCA 1244 Appeal from: Re Kaluza and Repatriation Commission [2010] AATA 498 Parties: STANISLAW KALUZA v REPATRIATION COMMISSION File number(s): NSD 948 of 2010 Judge: JACOBSON J Date of judgment: 15 November 2010 Catchwords: DEFENCE AND WAR – scope of remittal to Tribunal – whether veteran on operational service – time for determination of clinical onset of medical conditions – application of relevant SoPs – definition of severe psychological stressor in relevant SoPs Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Veterans’ Entitlements Act 1986 (Cth) ss 5B, 6C, 9, 120, 120ACases cited: Kaluza v Repatriation Commission [2008] AATA 392 discussed
Kaluza v Repatriation Commission [2008] FCA 1365 discussed
Kaluza v Repatriation Commission [2010] AATA 498 affirmed
Lees v Repatriation Commission (2002) 125 FCR 331 discussed
Deledio v Repatriation Commission (1997) 47 ALD 261 cited
Repatriation Commission v Deledio (1998) 83 FCR 82 applied
Peacock v Repatriation Commission (2007) 161 FCR 256 distinguished
Repatriation Commission v Nation (1995) 57 FCR 25 followed
Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 cited
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1 followed
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 cited
Stoddart v Repatriation Commission (2003) 74 ALD 366 referred to
Woodward v Repatriation Commission (2003) 131 FCR 473 distinguishedDate of hearing: 1 November 2010 Date of last submissions: 1 November 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 118 Counsel for the Applicant: Mr C Colborne Solicitor for the Applicant: Vardenega Roberts Solicitors Counsel for the Respondent: Ms K Eastman Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 948 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: STANISLAW KALUZA
ApplicantAND: REPATRIATION COMMISSION
Respondent
JUDGE:
JACOBSON J
DATE OF ORDER:
15 NOVEMBER 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 948 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: STANISLAW KALUZA
ApplicantAND: REPATRIATION COMMISSION
Respondent
JUDGE:
JACOBSON J
DATE:
15 NOVEMBER 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION AND OVERVIEW
Mr Stanislaw Kaluza is a veteran who served in the Royal Australian Airforce from 1963 to 1983. During the period of the Vietnam War he participated in several flights to and from Vietnam. He suffers from a number of medical conditions which he claims to be war-caused.
Mr Kaluza relied on two events which he said were stressors that caused his conditions.…
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Details
- AGLC
- Kaluza v Repatriation Commission [2010] FCA 1244
- Case
- [2010] FCA 1244
- Decision Date
CaseChat Overview and Summary
The case of Kaluza v Repatriation Commission concerns the dispute over whether the appellant, Mr Kaluza, was entitled to a pension for incapacity from war-caused medical conditions. The dispute was heard by the Federal Court of Australia. The primary issue before the court was whether the Tribunal had correctly applied the test for a psychological stressor in determining Mr Kaluza’s eligibility for a pension. Specifically, the court was required to decide if the Tribunal properly assessed whether Mr Kaluza had confronted events that involved an actual threat of death or injury, as required by the Statement of Principles (SoP) for psychological stressor.
The court considered the evidence presented by Mr Kaluza and the Commission. Mr Kaluza testified about witnessing injured soldiers in early 1968, but the Tribunal found that he could not have been on the flights in question due to a lack of supporting records. The Tribunal also rejected Mr Kaluza’s claim regarding a specific incident on 24 February 1969, determining that it did not occur during operational service. Despite these findings, the Tribunal acknowledged that Mr Kaluza suffered from anxiety disorder, alcohol abuse, and hypertension. The court needed to determine whether the Tribunal properly assessed these conditions under the SoP criteria.
In its reasoning, the court found that the Tribunal had correctly applied the SoP test by considering the evidence of Mr Kaluza’s exposure to traumatic events and the records provided by the Commission. The court held that the Tribunal’s assessment was reasonable and that it appropriately considered the evidence, including the discrepancies in Mr Kaluza’s recollections and the lack of supporting documentation. Consequently, the court upheld the Tribunal’s decision, affirming that the Tribunal had properly evaluated Mr Kaluza’s claims under the applicable criteria.
The final orders of the court affirmed the decision of the Tribunal, dismissing Mr Kaluza’s appeal. The court found that the Tribunal’s assessment of the psychological stressor and the related medical conditions was sound and based on a proper application of the relevant principles.
The court considered the evidence presented by Mr Kaluza and the Commission. Mr Kaluza testified about witnessing injured soldiers in early 1968, but the Tribunal found that he could not have been on the flights in question due to a lack of supporting records. The Tribunal also rejected Mr Kaluza’s claim regarding a specific incident on 24 February 1969, determining that it did not occur during operational service. Despite these findings, the Tribunal acknowledged that Mr Kaluza suffered from anxiety disorder, alcohol abuse, and hypertension. The court needed to determine whether the Tribunal properly assessed these conditions under the SoP criteria.
In its reasoning, the court found that the Tribunal had correctly applied the SoP test by considering the evidence of Mr Kaluza’s exposure to traumatic events and the records provided by the Commission. The court held that the Tribunal’s assessment was reasonable and that it appropriately considered the evidence, including the discrepancies in Mr Kaluza’s recollections and the lack of supporting documentation. Consequently, the court upheld the Tribunal’s decision, affirming that the Tribunal had properly evaluated Mr Kaluza’s claims under the applicable criteria.
The final orders of the court affirmed the decision of the Tribunal, dismissing Mr Kaluza’s appeal. The court found that the Tribunal’s assessment of the psychological stressor and the related medical conditions was sound and based on a proper application of the relevant principles.
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
The fifth question arises from [92] of the reasons for the Second Tribunal Decision. This is said to raise a question as to whether the Tribunal properly applied the SoP test of a psychological stressor for alcohol abuse because the Tribunal considered that Mr Kaluza did not “confront” events that involved an actual threat of death or injury.THE FIRST TRIBUNAL DECISION The Tribunal received evidence from Mr Kaluza about a flight to Vietnam in early 1968. The Commission called evidence from Air Commodore Brennan who conducted a review of the records of Mr Kaluza’s air force unit which was Squadron 37. The following passages of the Tribunal’s reasons are relevant:34.We were mindful of Mr Kaluza’s evidence that he had seen injured soldiers in January or February 1968 although he could not specify a date. His evidence was that there were “badly hurt” soldiers on board, and that “those with the worst injuries appeared to be sedated and most were on stretchers with bandages that did not control the bleeding well … I was badly affected by seeing the casualties..” We accepted from the official records which Air Commodore Brennan had searched in detail that Mr Kaluza was not on those flights. Accordingly we were satisfied that he could not have been given operational service in January or February 1968. …40. We are mindful that the records of the time may have some inaccuracies. Unfortunately we were not able to rely on Mr Kaluza’s recollections as to further additional flights which could be classified as operational service, because understandably given the effluxion of time, he was not able to remember specific dates. We were mindful that Mr Kaluza participated in many flights, and could not be expected to recall them all. We have noted that he had a recollection of a flight in 1968, and described the aircraft having pressurisation problems. However we do not have a date on which to consider operational service, and we were satisfied from the thorough Brennan search of the records that Mr Kaluza was not recorded as having been on an operational service flight in early 1968. The Tribunal’s reasons for finding that the flight on 24 February 1969, which involved the card-playing incident, was not on operational service are set out at [37] –[38]. The essence of the reasons was that the incident occurred on the second leg of the flight from Butterworth (in Malaysia) to Pearce in Western Australia, rather than on the first leg from Vietnam to Butterworth. Although the Tribunal therefore rejected Mr Kaluza’s claims that he was rendering operational service on the two flights, namely January or February 1968 and 24 February 1969, the Tribunal went on to consider the conditions on which Mr Kaluza relied for a pension for incapacity from war-caused medical conditions. The Tribunal rejected Mr Kaluza’s claims that he suffered from post-traumatic stress disorder (“PTSD”) and alcohol dependence but found that he suffers anxiety disorder, alcohol abuse and hypertension.
Ratio Decidendi
Legal Principle Established
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