McKerlie v Repatriation Commission

[2010] FCA 1127

FEDERAL COURT OF AUSTRALIA

McKerlie v Repatriation Commission [2010] FCA 1127

Citation:

McKerlie v Repatriation Commission [2010] FCA 1127

Appeal from:

Trevor Desmond McKerlie and Repatriation Commission [2009] AATA 718

Parties:

TREVOR DESMOND MCKERLIE v REPATRIATION COMMISSION

File number:

SAD 166 of 2009

Judge:

BESANKO J

Date of judgment:

19 October 2010

Catchwords:

ADMINISTRATIVE LAW — appeal from Administrative Appeals Tribunal on question of law — where applicant a veteran who had lodged claim for disability pension under Veterans’ Entitlements Act 1986 (Cth) (‘the Act’) on basis of claimed post traumatic stress disorder — where diagnosis of post traumatic stress disorder required experiencing of ‘severe stressor’ — where applicant claimed ‘severe stressor’ had occurred during war service — where Tribunal applying standard of proof contained in s 120(4) not reasonably satisfied incident said to amount to ‘severe stressor’ had occurred — whether Tribunal should have applied reverse criminal standard of proof to question of whether incident had occurred pursuant to s 120(1) in deciding whether applicant had post traumatic stress disorder — whether Tribunal obliged to consider, on material before it, if symptoms claimed by applicant existed and could amount to some disease other than post traumatic stress disorder when that case was not articulated by applicant.

HELD: Appeal allowed. Tribunal had applied correct standard of proof. Previous authority established that standard in s 120(4) applied to diagnosis of post traumatic stress disorder and therefore to occurrence of severe stressor. In addition to determining case expressly articulated by applicant, Tribunal bound to consider and determine if applicant suffered from symptoms described and whether those symptoms constituted a disease for purpose of the Act, and then to follow steps set out in Repatriation Commission v Deledio (1998) 83 FCR 82. Failure to do so constituted an error of law.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44
Migration Act 1958 (Cth)
Veterans’ Entitlements Act 1986 (Cth) ss 9, 13, 120 and 120A

Cases cited:

Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622, applied
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, cited
Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334, cited
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, cited
Peacock v Repatriation Commission (2007) 161 FCR 256, cited
Repatriation Commission v Budworth (2001) 116 FCR 200, followed
Repatriation Commission v Cooke (1998) 90 FCR 307, followed
Repatriation Commission v Deledio (1998) 83 FCR 82, cited
Repatriation Commission v Warren (2008) 167 FCR 511, cited
Trevor Desmond McKerlie and Repatriation Commission [2009] AATA 718, reversed

Date of hearing:

9 July 2010

Place:

Adelaide

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

46

Counsel for the Applicant:

Mr S Ower

Solicitor for the Applicant:

Voumard Lawyers

Counsel for the Respondent:

Ms S Maharaj QC with Mr A Schatz

Solicitor for the Respondent:

Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA