Meehan v Repatriation Commission

Case [2003] FCA 1371

FEDERAL COURT OF AUSTRALIA

Meehan v Repatriation Commission [2003] FCA 1371

VETERANS’ ENTITLEMENTS – reasonable hypothesis based on a statement of principles - whether generalised anxiety disorder was war-caused

Veterans’ Entitlements Act1986 (Cth) ss 120, 120A & 196B

Bushell v Repatriation Commission (1992) 175 CLR 408 applied
Byrnes v Repatriation Commission (1993) 177 CLR 564 applied
Lees v Repatriation Commission (2002) 74 ALD 68 referred to
Repatriation Commission v Deledio (1998) 83 FCR 82 applied

JAMES SYDNEY MEEHAN v REPATRIATION COMMISSION
N 683 OF 2003

JACOBSON J
SYDNEY
28 NOVEMBER 2003


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

 N 683 of  2003

ON APPEAL FROM THE VETERANS’ APPEAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

JAMES SYDNEY MEEHAN
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

JACOBSON J

DATE OF ORDER:

28 NOVEMBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Applicant pay the Respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

 N 683 of 2003

ON APPEAL FROM THE VETERANS’ APPEAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

JAMES SYDNEY MEEHAN
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

JACOBSON  J

DATE:

28 NOVEMBER 2003

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Introduction

  1. This is an appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of a delegate of the Repatriation Commission (“the Commission”) rejecting a claim by the Applicant for a disability pension for post traumatic stress disorder. The Commission rejected the claim because it found that the Applicant’s recollection of the events, which were said to have caused the disorder, were unreliable. The effect of the question of law stated in the Notice of Appeal is whether this finding satisfied the standard of proof laid down by s 120(1) of the Veterans’ Entitlements Act1986 (Cth) (“the Act”) under which the Commission is to determine that an injury was war-caused unless it is satisfied beyond a reasonable doubt that there is no sufficient ground for making that determination.

  2. The proceedings have a long history. The decision of the Tribunal was its third decision on the Applicant’s claim. Its first and second decisions were successfully appealed to the Court and remitted to the Tribunal for further hearing. On the third rehearing the Tribunal determined that the material before it, which raised a claim for generalised anxiety disorder (“GAD”) based on the Applicant’s service in Vietnam, raised a reasonable hypothesis connecting the disability with the circumstances of the Applicant’s service in accordance with s 120(3) of the Act. However, the Tribunal was satisfied beyond a reasonable doubt that there was no sufficient ground for determining that the Applicant’s general anxiety disorder was a war-caused disease.

    The Legislation

  3. Section 120 of the Act relevantly provides:-

    (1)Where a claim under Part II for…

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Details
AGLC
Meehan v Repatriation Commission [2003] FCA 1371
Case
[2003] FCA 1371
Decision Date

CaseChat Overview and Summary

The case of Meehan v Repatriation Commission involved a claim by the applicant for a psychiatric injury sustained during service in Vietnam. The Full Court outlined the four-stage process that a Tribunal must follow when dealing with such a claim, starting with determining whether there is an applicable Statement of Principles (SoP) in force. The applicant argued that he had served on HMAS Sydney in Vietnam in 1969, witnessed traumatic events such as men being killed and injured, and saw corpses transported in body bags. The Tribunal was satisfied that the first two stages of the Deledio test had been met, and it assessed whether the hypothesis was reasonable, considering the material evidence before it.

The Tribunal considered whether the hypothesis suggested that the applicant experienced anxiety or stress not more than two years before the onset of his Generalised Anxiety Disorder (GAD). It referred to the evidence of Dr Dinnen, a consultant psychiatrist, who concluded that the applicant showed signs of GAD within two years of the stressors if he had not self-medicated with alcohol. The Tribunal quoted extensively from Dr Dinnen’s reports, noting his opinion that the applicant’s account of anxiety developing during his two trips to Vietnam was established.

The Full Court found that the Tribunal had correctly applied the Deledio test and properly assessed the evidence. The appeal was dismissed, and the applicant was ordered to pay the respondent's costs. The Court held that the Tribunal's decision was sound and that the applicant's claim for a psychiatric injury arising from his service in Vietnam did not meet the criteria set out in the applicable Statement of Principles.

Orders

Orders of the court

1. The appeal be dismissed.

2. The Applicant pay the Respondent’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JACOBSON J
At the end of its judgment, the Full Court stated the four stages which a Tribunal must follow when dealing with a claim. The first stages are to determine whether the material points to an hypothesis and, if so, whether there is an SoP in force. Where that is the case, the third stage is reached. Here the Tribunal is to form the opinion as to whether the hypothesis is reasonable. It must contain one or more of the factors which the Authority has determined to be the minimum. If the hypothesis is reasonable the Tribunal moves to the fourth stage which was described by the Full Court at 97 to 98 as follows:-4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.The Tribunal’s Decision The Tribunal was satisfied that the first two stages referred to in Deledio had been satisfied. The hypothesis on which the claim was based was in summary, that the Applicant had served on the HMAS Sydney in Vietnam in 1969, that he had been on sentry duty in Vung Tau Harbour in the dark, that he had seen men killed and injured and that he had seen corpses transported on his vessel in body bags. The SoP was stated in Instrument 48/94 with the relevant factors being those set out at [6] above. Thus, the Tribunal said at [21] of its decision that it had to assess whether the hypothesis suggested that the veteran experienced an occurrence which evoked feelings of anxiety or stress not more than two years before the onset of his GAD. The Tribunal then considered at some length the question raised by the third stage referred to in Deledio, (i.e. whether the hypothesis was reasonable). This was a determination of whether the material before the Commission raised a reasonable hypothesis within s 120(3) in light of the 1994 amendments. The Tribunal referred at [25] to a decision of the Full Court in Lees v Repatriation Commission (2002) 74 ALD 68 in which the purpose of the definition of GAD in the SoP was stated. It was to identify those symptoms which, if observed by a clinician, would warrant a conclusion that the patient suffered from GAD and that the symptoms be revealed within two years of the veteran experiencing a severe psychological stressor during operational service. The Applicant relied on the evidence of Dr Dinnen, a consultant psychiatrist, whose evidence was that the Applicant showed signs of GAD which would have been present within two years of the stressors if the Applicant had not self-medicated with alcohol. The Tribunal set out Dr Dinnen’s evidence at some length from paras [42] to [53]. It quoted at [44] from one of his reports in which Dr Dinnen said that, in his opinion, the Applicant’s account of anxiety developing during his two trips to Vietnam was established. He referred to the Applicant’s account of taking up drinking with a vengeance to control his fear and his statement that he could hear the charges being dropped and that this still causes him to get anxious.

Ratio Decidendi

Legal Principle Established

Established by: JACOBSON J

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