FEDERAL COURT OF AUSTRALIA
Malady v Repatriation Commission
[2011] FCAFC 45
Citation: Malady v Repatriation Commission [2011] FCAFC 45 Appeal from: Repatriation Commission v Malady [2010] FCA 798 Parties: MICHAEL PATRICK MALADY v REPATRIATION COMMISSION File number: VID 698 of 2010 Judges: EMMETT, DOWSETT AND RARES JJ Date of judgment: 31 March 2011 Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44(7)
Veterans Entitlement Act 1986 (Cth) ss 9, 120, 120A, 196BCases cited: Benjamin v Repatriation Commission (2001) 70 ALD 622 referred to
Re Malady v Repatriation Commission [2005] AATA 713 referred to
Re Malady v Repatriation Commission [2009] AATA 454 referred to
Repatriation Commission v Budworth (2001) 116 FCR 200 referred to
Repatriation Commission v Deledio (1998) 83 FCR 82 applied
Repatriation Commission v Malady [2006] FMCA 1050 referred toRepatriation Commission v Money (2009) 173 FCR considered
Roncevich v Repatriation Commission (2005) 222 CLR 115 referred to
Date of hearing: 10 February 2011 Place: Sydney (via video link to Melbourne) Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 71 Counsel for the Appellant: D Marchi Solicitor for the Appellant: De Marchi & Associates Counsel for the Respondent: J Wallace Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 698 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: MICHAEL PATRICK MALADY
AppellantAND: REPATRIATION COMMISSION
Respondent
JUDGE:
EMMETT, DOWSETT AND RARES JJ
DATE OF ORDER:
31 MARCH 2011
WHERE MADE:
SYDNEY (VIA VIDEO LINK TO MELBOURNE)
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s 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
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 698 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: MICHAEL PATRICK MALADY
AppellantAND: REPATRIATION COMMISSION
Respondent
JUDGE:
EMMETT, DOWSETT AND RARES JJ
DATE:
31 MARCH 2011
PLACE:
SYDNEY (VIA VIDEO LINK TO MELBOURNE)
EMMETT J
REASONS FOR JUDGMENT
This appeal concerns the question of whether a judge of the Court, having found error on the part of the Administrative Appeals Tribunal (the Tribunal), erred in declining to remit the matter to the Tribunal for further determination.
The appellant, Mr Michael Malady (the Veteran) enlisted in the Australian Army in the late 1990s. He was posted to East Timor on 20 September 1999. However, on 28 September 1999 he was evacuated to Darwin suffering from dysentery. He did not return to East Timor and on 10 September 2000 he was discharged from the army on medical grounds. In the period between his return to Australia in September 1999 and his discharge a year later, the Veteran was under medical care in Townsville. He was treated successfully for dysentery. However, he was also treated for emotional disorders, which were diagnosed as post-traumatic stress disorder…
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CaseChat Overview and Summary
In the case of Malady v Repatriation Commission, the applicant, Mr Malady, sought to appeal against a decision of the Social Security and Child Support Tribunal, which had determined that his claims for benefits under the Veterans Entitlement Act 1986 (Cth) were not substantiated. The Tribunal had found that Mr Malady had developed war-caused conditions of major depressive disorder, alcohol abuse, and drug abuse, but it had concluded that these conditions were not service-related, as required under the Act. Consequently, the Tribunal dismissed Mr Malady's claims for benefits.
The central legal issue before the court was whether the Tribunal had correctly determined that Mr Malady's conditions were not service-related. The court needed to examine the Tribunal's findings and reasoning to ascertain if they were consistent with the statutory requirements and if any errors of law had been made. Specifically, the court was required to consider whether the Tribunal had properly applied the relevant principles and whether it had correctly identified the factors linking Mr Malady's conditions to his operational service.
In its judgment, the court held that the Tribunal had erred in its determination. The Tribunal had incorrectly relied on Mr Malady's borderline personality disorder as a factor linking his conditions to his operational service. The court noted that the Tribunal had found no causal nexus between Mr Malady's operational service and his borderline personality disorder, which meant that it could not be used to establish the required link. Furthermore, the court held that the Tribunal had not found that Mr Malady had experienced any severe traumatic stressor in East Timor, which was necessary to connect his depressive disorder to his operational service according to the relevant Statement of Principles. As a result, the court found that the Tribunal's decision was flawed due to the error of law.
The court dismissed the appeal and ordered that the appellant pay the respondent's costs. This decision underscores the importance of correctly identifying and applying the relevant legal principles and factual findings in determining the service-relatedness of a veteran's conditions under the Veterans Entitlement Act.
The central legal issue before the court was whether the Tribunal had correctly determined that Mr Malady's conditions were not service-related. The court needed to examine the Tribunal's findings and reasoning to ascertain if they were consistent with the statutory requirements and if any errors of law had been made. Specifically, the court was required to consider whether the Tribunal had properly applied the relevant principles and whether it had correctly identified the factors linking Mr Malady's conditions to his operational service.
In its judgment, the court held that the Tribunal had erred in its determination. The Tribunal had incorrectly relied on Mr Malady's borderline personality disorder as a factor linking his conditions to his operational service. The court noted that the Tribunal had found no causal nexus between Mr Malady's operational service and his borderline personality disorder, which meant that it could not be used to establish the required link. Furthermore, the court held that the Tribunal had not found that Mr Malady had experienced any severe traumatic stressor in East Timor, which was necessary to connect his depressive disorder to his operational service according to the relevant Statement of Principles. As a result, the court found that the Tribunal's decision was flawed due to the error of law.
The court dismissed the appeal and ordered that the appellant pay the respondent's costs. This decision underscores the importance of correctly identifying and applying the relevant legal principles and factual findings in determining the service-relatedness of a veteran's conditions under the Veterans Entitlement Act.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs.
Note:
Background
Background to the litigation
His Honour noted that Mr Malady had made a submission, in the event that the appeal before his Honour were allowed, that the matter should be remitted to the Tribunal to be reheard and determined according to law. The primary judge observed that such an order would be appropriate in cases in which the Tribunal’s error of law had distracted it from making findings or dealing with issues that might be resolved favourably to an applicant. However, his Honour had invited counsel for Mr Malady to identify any alternative basis on which the Tribunal might have been persuaded to uphold Mr Malady’s claim. Counsel did not suggest to the primary judge any process of reasoning, consistent with the factual findings made by the Tribunal, that could have enabled it to find that any of the three conditions suffered by Mr Malady was service related.FACTS The following account has been taken largely from the primary judge’s reasons. Mr Malady enlisted in the Australian Army Reserve in June 1998 and transferred to the Australian regular army in June 1999 when he was nearly 26 years old. He was posted to East Timor on 20 September 1999, but the posting was short lived. Mr Malady had been posted to East Timor with the Second Battalion of the Royal Australian Regiment, as part of the international peace keeping force, known as INTERFET. INTERFET was operating at that time to secure vital infrastructures in and around the capital of East Timor, Dili, in co-operation with Indonesian Armed Forces. On 25 September 1999 he became ill, and on the following day he was admitted to a field hospital. Three days later he was evacuated to Darwin suffering from dysentery. He never returned to East Timor. On 10 September 2000, Mr Malady was discharged from the army on medical grounds. The primary judge lucidly distilled the essential elements of Mr Malady’s claims to be entitled to benefits under the Veterans Entitlement Act 1986 (Cth) (the Act). Mr Malady claimed that during his period of service in East Timor he experienced the following events:·colleagues accidently discharging rounds from their firearms;·while in a patrol vehicle, observing a person who appeared to be carrying a rifle, whom he (Mr Malady) contemplated having to shoot, but ultimately did not do so because the person disappeared from view (the patrol vehicle incident);·coming across a substance that appeared to be, and smell like, blood and seeing what he described as a shallow grave (the shallow grave incident);·seeing guns held by Indonesian soldiers, who were travelling in a truck, being pointed in his general direction. In the period between his return to Australia in September 1999 and his discharge a year later, Mr Malady was under medical care in Townsville. He had been treated successfully for dysentery. He was also being treated for emotional disorders that at that time were diagnosed as post-traumatic stress disorder and major depression. Prior to being posted to East Timor, Mr Malady completed a medical examination on 19 May 1999. There, his “emotional stability” and “mental capacity” were recorded as “normal”. The medical officer conducting that examination concluded that Mr Malady drank a considerable quantity and either used, or had experimented with, marijuana or with other drugs. The medical officer recorded that Mr Malady consumed about 20-25 alcoholic drinks per week and smoked approximately 20 cigarettes per day and had tried “marijuana several times” about 9 or 10 years earlier.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Tribunal found that the Statement of Principles for depression (SoP No 27 of 2008) contained no objective requirement that needed to be present before a veteran could be found to suffer depression. It rejected the Commission’s argument that Mr Malady’s depression did not arise out of his operational service but arose following completion of the service and related to his feelings of letting down his fellow servicemen as a result of his early return to Australia. It found that the events in East Timor were a cause of Mr Malady’s having developed depression sufficient for him to satisfy the requirements of the Statement of Principles. The Tribunal accepted Dr Strauss’ opinions that Mr Malady’s experiences in East Timor had had a direct aetiological role in precipitating his current psychological difficulties and that two experiences had played a significant part in the development of his depression. Those two experiences were first, that at the time Mr Malady left East Timor, he had a significant sense of guilt and remorse that affected him when he got back and threw him into a significant depression and, secondly, that he found his time in East Timor stressful and to a certain extent frightening.The Tribunal’s Conclusion The Tribunal concluded that it was satisfied that Mr Malady had the war-caused conditions of major depressive disorder, alcohol abuse and drug abuse. It remitted the claim to the Commission to calculate the pension payable.THE PRIMARY JUDGE’S REASONING As noted above, the primary judge accepted Mr Malady’s concession that the Tribunal had made an error of law in relying upon the existence of his borderline personality disorder to find that a factor for the worsening of his alcohol abuse and drug abuse had been established. The concession did not extend to the Tribunal’s use of the borderline personality disorder in relation to its finding that his depression also satisfied the Statement of Principles for that condition. His Honour reasoned that the alcohol and drug abuse had to be linked to Mr Malady’s operational service. In order for such a link to be established the psychiatric condition of borderline personality disorder, in turn, had to be caused by operational service. His Honour noted that the Tribunal had found that there was no causal nexus between Mr Malady’s operational service and his borderline personality disorder. The primary judge then determined that it followed that, for the purposes of s 120A(3) of the Act, no Statement of Principles upheld an hypothesis connecting each disease (the worsening of each of the alcohol and drug abuse and the development of the depression) with the circumstances of his operational service. His Honour held that the Tribunal had erred in using the existence of Mr Malady’s pre-existing conditions of substance abuse (for both alcohol and drugs) and his borderline personality disorder as factors linking the development of his depressive disorder to his operational service in East Timor. He identified the Tribunal’s error as finding that the events in East Timor were a cause of Mr Malady developing depression, when those events were not specified in SoP No 27 of 2008 as factors that could link the depressive disorder to his operational service. This was because, he held, the Tribunal had not found that Mr Malady had experienced any severe traumatic stressor in East Timor.
Ratio Decidendi
Legal Principle Established
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