Linwood v Repatriation Commission

Case [2016] FCA 90

FEDERAL COURT OF AUSTRALIA

Linwood v Repatriation Commission [2016] FCA 90

Appeal from: Linwood v Repatriation Commission (Veterans’ entitlements) [2015] AATA 704
File number: QUD 958 of 2015
Judge: LOGAN J
Date of judgment: 16 February 2016
Catchwords: ADMINISTRATIVE LAW – veterans’ affairs – veterans’ entitlements – application for disability pension under Part IV of the Veterans’ Entitlements Act 1966 (Cth) – where applicant suffered depressive disorder – whether depressive disorder is related to defence service – application of statement of principles under Veterans’ Entitlements Act 1996 – whether Tribunal erred in law in finding insufficient evidence that the applicant suffered a category two stressor – where it was manifestly unreasonable for Tribunal to conclude there was not sufficient evidence – where Tribunal failed to take account of a relevant consideration – appeal allowed – matter remitted to Tribunal for redetermination  
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 33(1)(c), 37, 43(1), 44

Defence Force Discipline Act 1982 (Cth)

Supreme Court Act 1975 (PNG) s 14(1)(b)

Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth)

Veterans’ Entitlements Act 1996 (Cth) ss 70, 120(4), 120B(3), 196B(14)

War Pensions Act 1914 (Cth) (repealed)

Cases cited:

Attorney General (NSW) v Quin (1990) 170 CLR 1

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Belton v General Motors Holden's Ltd (No 1) (1984) 58 ALJR 352

Cocoa Cola Amatil (PNG) Ltd v Yanda [2012] PGSC 52

Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 77 ALJR 1088

Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135

FTZK v Minister for Immigration and Border Protection (2014) 88 ALJR 754

Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315

Haritos v Federal Commissioner of Taxation [2015] HCATrans 337

Jebb v Repatriation Commission (1988) 80 ALR 329

Knight v Repatriation Commission (2010) 52 AAR 547

Mahon v Air New Zealand [1984] AC 808

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405

Repatriation Commission v Bawden (2012) 206 FCR 296

Repatriation Commission vKnight (2012) 202 FCR 451

Repatriation Commission v Warren (2007) 95 ALD 606

R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228

Stead v State Government Insurance Office (1986) 161 CLR 141

Date of hearing: 3 February 2016
Registry: Queensland
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 64
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: Mr J R Streit
Solicitor for the Respondent: Australian Government Solicitor
Table of Corrections
2 November 2016 Date of Judgment, Order and certification date is amended to 16 February 2016

ORDERS

QUD 958 of 2015
BETWEEN:

MARK LINWOOD

Applicant
AND:

REPATRIATION COMMISSION

Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

16 FEBRUARY 2016

THE COURT ORDERS THAT:

1.The respondent’s…

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Details
AGLC
Linwood v Repatriation Commission [2016] FCA 90
Case
[2016] FCA 90
Decision Date

CaseChat Overview and Summary

Linwood brought an appeal against a decision of the Administrative Appeals Tribunal (the Tribunal) which had dismissed his application for a disability pension under Part IV of the Veterans’ Entitlements Act 1966 (Cth). Linwood contended that his depressive disorder was related to his defence service and, as such, he was entitled to a pension under the Act. The Tribunal had found that Linwood had not demonstrated that he had suffered a category two stressor as required by the applicable statement of principles under the Veterans’ Entitlements Act 1996. Linwood appealed to the Federal Court on the grounds that the Tribunal had erred in law in finding insufficient evidence that he suffered a category two stressor and that it was manifestly unreasonable for the Tribunal to conclude there was not sufficient evidence. He also submitted that the Tribunal failed to take account of a relevant consideration.

The court held that the Tribunal had erred in concluding that there was insufficient evidence that Linwood had suffered a category two stressor. The Tribunal had failed to properly consider the evidence before it and had not given adequate weight to the expert evidence provided by Linwood’s treating psychiatrist. The court held that it was manifestly unreasonable for the Tribunal to have reached the conclusion that it did and that the Tribunal had failed to take account of a relevant consideration. The appeal was allowed and the decision of the Tribunal was set aside. The matter was remitted to the Tribunal for further hearing and determination according to law. The respondent was ordered to pay the applicant’s travel expenses related to the applicant’s appearance at court.

Orders

Orders of the court

1. The respondent’s objection to competency is dismissed.

2. The appeal is allowed.

3. The decision of the Administrative Appeals Tribunal (the Tribunal) dated 11 September 2015 is set aside.

4. The matter is remitted to the Tribunal for further hearing and determination according to law.

5. The respondent pay the applicant’s travel expenses related to the applicant’s appearance at court which are fixed in the sum of $60.00 for return rail travel and car travel.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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