Masliczek v Repatriation Commission

Case [2008] FCA 1535

FEDERAL COURT OF AUSTRALIA

Masliczek v Repatriation Commission [2008] FCA 1535

DEFENCE AND WAR – Veterans’ entitlements – Disability Pension – Whether appeal raised a question of law – Post-traumatic stress disorder – Question whether veteran experienced a severe traumatic event – Osteoarthrosis – Whether disease war-caused – Statements of Principles – Whether Administrative Appeals Tribunal failed to provide adequate reasons  

Veterans’ Entitlements Act 1986 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2B), 44(1)
Federal Court Rules O 53 r 3(2)(b)

Repatriation Commission v Deledio (1998) 83 FCR 82 applied
TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 cited
Australian Telecommunications Corporation v Lamroglou (1990) 12 AAR 515 cited
Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 cited
Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 cited
Comcare v Etheridge (2006) 149 FCR 522 cited
Commissioner of Taxation v Dixon (2006) 155 FCR 101 cited
Hussain v Minister for Foreign Affairs (2008) 248 ALR 456 cited
Mines v Repatriation Commission (2004) 86 ALD 62 applied
Fenner v Repatriation Commission [2007] FCA 406 cited
Repatriation Commission v Hill [2008] FCA 50 cited
Repatriation Commission v Keeley (2000) 98 FCR 108 cited
Benjamin v Repatriation Commission (2001) 70 ALD 622 cited

MIRON MICHAEL MASLICZEK v REPATRIATION COMMISSION

VID 276 OF 2008

TRACEY J
22 OCTOBER 2008
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 276 OF 2008

BETWEEN:

MIRON MICHAEL MASLICZEK
Appellant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

22 OCTOBER 2008

WHERE MADE:

MELBOURNE

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.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 276 OF 2008

BETWEEN:

MIRON MICHAEL MASLICZEK
Appellant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

TRACEY J

DATE:

22 OCTOBER 2008

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. Mr Miron Masliczek joined the Australian Army as a National Serviceman in 1966.  He served for two years.  For part of this time he was on active service in South Vietnam.  In later years he suffered a number of medical conditions which were caused by his war service.  He was paid a disability pension by reason of these conditions.

  2. In 2005 he applied for a further pension entitlement because of, among other conditions, post‑traumatic stress disorder (“PTSD”), osteoarthrosis of the fingers of the right hand and hearing problems in the right ear.  He attributed these conditions to his service in South Vietnam.  His application insofar as it was based on these conditions was rejected by the Repatriation Commission (“the Commission”) and his appeal to the Veterans’ Review Board (“the VRB”) from the Commission’s decision failed.  He appealed to the Administrative Appeals Tribunal (“the Tribunal”).  The Tribunal affirmed the decision of the VRB.  Mr Masliczek now purports to appeal to this Court.

  3. The issues raised by the appeal are:

    ·Whether the Court…

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Details
AGLC
Masliczek v Repatriation Commission [2008] FCA 1535
Case
[2008] FCA 1535
Decision Date

CaseChat Overview and Summary

In the case of Masliczek v Repatriation Commission, the appellant, Mr Masliczek, appealed against a decision of the Administrative Appeals Tribunal (AAT) that he did not suffer from post-traumatic stress disorder (PTSD) or hearing loss related to his operational service in Vietnam. The AAT had determined that although Mr Masliczek suffered from a psychiatric condition, it could not be linked to his operational service. The primary issues for the court were the jurisdiction of the appeal, whether the AAT had erred in applying the Veterans’ Entitlements Act 1986, and whether the AAT had failed to provide adequate reasons for its decision.

The court first considered the jurisdiction to entertain the appeal, confirming that it had the authority to review the AAT’s decision. The court then assessed whether the AAT had applied the provisions of the Veterans’ Entitlements Act correctly, particularly in relation to the criteria for diagnosing PTSD and the link to operational service. The court examined the AAT’s findings that Mr Masliczek’s claims of traumatic events did not meet the criteria for PTSD, as outlined in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. The court found that the AAT had appropriately evaluated the evidence and concluded that Mr Masliczek did not suffer from PTSD. Additionally, the court determined that the AAT’s reasoning was sufficient under the Administrative Appeals Tribunal Act to support its decision, and that the AAT had met its obligation to provide reasons for its decision.

The court dismissed the appeal with costs.

Orders

Orders of the court

1. The appeal be dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

TRACEY J
The issues raised by the appeal are:·Whether the Court has jurisdiction to entertain the appeal.·If so, whether the Tribunal has erred in law in applying various provisions of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).·Whether the Tribunal failed to meet its obligations, under the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), to provide reasons for its decision.THE TRIBUNAL’S DECISION The Tribunal determined that Mr Masliczek did not suffer from the claimed PTSD or hearing loss. It accepted that he suffered from a psychiatric condition which could be diagnosed as general anxiety disorder or depressive disorder and that he suffered from osteoarthrosis of the fingers of the right hand but held that neither of these conditions could be linked to his operational service. Mr Masliczek sought to persuade the Tribunal that he suffered PTSD as a result of a number of stressful incidents which occurred while he was in South Vietnam. The Tribunal identified these incidents as follows:“The first and most significant was when he and a fellow soldier witnessed the bodies of two young Vietnamese girls they had met earlier (the bodies event). The second was when he was at a fire support base and felt that his life was in danger from the firing of rockets and mortars (the firing event). The third was when he witnessed the body of a friend who had shot himself (the shooting event). The fourth was when he was threatened with a hand gun by a taxi driver (the taxi event). The fifth was the death of a friend during the Tet Offensive (the casualty event).”The Tribunal had regard to Mr Masliczek’s accounts of these events and to contemporaneous records about them. It also considered medical evidence about his claim to be suffering from PTSD. The Tribunal found Mr Masliczek to be an unsatisfactory witness. It concluded that the bodies event did not occur and that, if the other events did occur, they did not occur in the manner described by Mr Masliczek and they did not constitute traumatic events such as to give rise to a response involving intense fear, helplessness or horror. Such findings were necessary in order for a PTSD diagnosis to be made in accordance with the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th ed) which prescribes the following criteria for the condition:“The person has been exposed to a traumatic event in which both of the following were present:(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or threat to the physical integrity of self or others;(ii)the person’s response involved intense fear, helplessness, or horror …”These findings led the Tribunal to conclude “that Mr Masliczek does not, and did not, suffer from PTSD.” For reasons which it does not explain the Tribunal included a further paragraph, immediately after that in which it determined that Mr Masliczek did not suffer from PTSD. That paragraph reads:“[36] The Tribunal accepts that Mr Masliczek suffers from a psychiatric condition. He has a collection of symptoms that can be diagnosed as general anxiety disorder or depressive disorder. However, the Tribunal finds that the stressful events described by Mr Masliczek either did not occur or do not amount to a category 1A stressor or a category 1B stressor within the meaning of the Depressive Disorder Instrument or the Anxiety Disorder Instrument. It follows that the psychiatric condition suffered by Mr Masliczek cannot be linked to his operational service in Vietnam.”The Depressive Disorder Instrument to which the Tribunal refers appears to be the Repatriation Medical Authority’s (“the RMA”) Statement of Principles concerning Depressive Disorder (No 27 of 2008) or one of its predecessors. The reference to the Anxiety Disorder Instrument appears to be a reference to the RMA’s Statement of Principles concerning Anxiety Disorder (No 1 of 2000) or its successor (No 101 of 2007). Definitions of category 1A and category 1B stressors are to be found in the Statements of Principles on Depressive Disorder (No 17 of 2007 and No 27 of 2008) and Anxiety Disorder (No 101 of 2007) but not in their predecessors. The definitions are in the same terms. A category 1A stressor is defined to mean:“… one or more of the following severe traumatic events:(a)experiencing a life-threatening event;(b)being subject to a serious physical attack or assault …; or(c)being threatened with a weapon …”A category 1B stressor is defined to mean:“… one of the following severe traumatic events:(a)being an eye witness to a person being killed or critically injured;(b)viewing corpses or critically injured casualties as an eye witness;(c)being an eye witness to atrocities inflicted on another person or persons;(d)killing or maiming a person; or(e)being an eye witness or participating in the clearance of critically injured casualties …”

Ratio Decidendi

Legal Principle Established

Established by: TRACEY J

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