Meehan v Repatriation Commission

Case [2001] FCA 597


FEDERAL COURT OF AUSTRALIA

Meehan v Repatriation Commission [2001] FCA 597

ADMINISTRATIVE LAW – Veterans’ entitlements – Appeal from decision of Administrative Appeals Tribunal – Claim by veteran of generalised anxiety disorder resulting from naval service in Vietnam – Finding made by Tribunal, on balance of probabilities, that veteran suffered the disorder prior to his naval service and it was not aggravated by his visits to Vietnam – Whether this constituted an error of law – Significance of aggravation of an ailment or disorder itself being a “disease” – Whether the existence of a particular disease (as distinct from the veteran suffering some relevant disease) is to be determined by reference to the balance of probabilities, rather than the reverse criminal standard – Course appropriate to be undertaken where there is no agreement as to whether an applicant suffers a particular disease.

Veteran’s Entitlements Act 1986: ss 5D, 9, 13, 120, 120A

Repatriation Commission v Cooke (1998) 90 FCR 307 distinguished

JAMES SYDNEY MEEHAN v REPATRIATION COMMISSION
N 1311 of 2000

WILCOX J
25 MAY 2001
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1311 of 2000

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

BETWEEN:

JAMES SYDNEY MEEHAN
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

WILCOX J

DATE OF ORDER:

25 MAY 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The decision of the Veterans’ Appeals Division of the Administrative Appeals Tribunal dated 18 November 2000 be set aside.

2.The matter be remitted to the Veterans’ Appeals Division of the Administrative Appeals Tribunal for further hearing (with or without additional evidence, as the Tribunal may direct) and determination according to law.

3.The respondent, Repatriation Commission, pay the costs of this proceeding of the applicant, James Sydney Meehan.

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 1311 of 2000

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

BETWEEN:

JAMES SYDNEY MEEHAN
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

WILCOX J

DATE:

25 MAY 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

  1. This is an application under s 44 of the Administrative Appeals Tribunal Act 1975 raising a question of law in respect of a decision of the Veterans’ Appeals Division of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of the Veterans’ Review Board upholding a refusal by the Repatriation Commission, the respondent to this proceeding, to accept that the applicant, James Sydney Meehan, suffered war-caused post traumatic stress disorder or, alternatively, generalised anxiety disorder or personality disorder.

    The Tribunal’s decision

  2. In its reasons for decision, the Tribunal recorded that Mr Meehan served in the Royal Australian Navy from 3 January 1968 to 2 January 1980.  He was a member of the crew of HMAS Sydney when, during the course of the Vietnam war, it made two trips to Vietnam.  On each trip HMAS Sydney spent a…

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AGLC
Meehan v Repatriation Commission [2001] FCA 597
Case
[2001] FCA 597
Decision Date

CaseChat Overview and Summary

The case of Meehan v Repatriation Commission involved an appeal by James Sydney Meehan against a decision of the Administrative Appeals Tribunal (AAT). Meehan sought recognition of his generalised anxiety disorder as a result of his service in the Royal Australian Navy during the Vietnam War. The AAT had found that Meehan's disorder predated his naval service and was not aggravated by his visits to Vietnam. The central legal issues before the court were whether the AAT had erred in its determination that the veteran's anxiety disorder was not caused or aggravated by his service, and whether the existence of a disease in such cases should be determined by the balance of probabilities or a higher standard of proof.

The court considered the appropriate standard of proof in cases where there is no agreement as to whether a veteran suffers from a particular disease. It was noted that the existence of a particular disease should be determined by the balance of probabilities, rather than requiring proof beyond reasonable doubt. The court found that the AAT had not adequately addressed the evidence and had made a finding that Meehan's disorder predated his naval service without sufficient justification. This misapplication of the standard of proof constituted an error of law, leading the court to set aside the AAT's decision.

The court ordered that the decision of the AAT be set aside and the matter be remitted to the AAT for further hearing and determination according to law. Additionally, the Repatriation Commission was ordered to pay the costs of the proceeding to Meehan. This decision highlights the importance of correctly applying the standard of proof in veterans' entitlement cases and the need for thorough consideration of all relevant evidence.

Orders

Orders of the court

1. The decision of the Veterans’ Appeals Division of the Administrative Appeals Tribunal dated 18 November 2000 be set aside.

2. The matter be remitted to the Veterans’ Appeals Division of the Administrative Appeals Tribunal for further hearing (with or without additional evidence, as the Tribunal may direct) and determination according to law.

3. The respondent, Repatriation Commission, pay the costs of this proceeding of the applicant, James Sydney Meehan.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WILCOX J
This is an application under s 44 of the Administrative Appeals Tribunal Act 1975 raising a question of law in respect of a decision of the Veterans’ Appeals Division of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of the Veterans’ Review Board upholding a refusal by the Repatriation Commission, the respondent to this proceeding, to accept that the applicant, James Sydney Meehan, suffered war-caused post traumatic stress disorder or, alternatively, generalised anxiety disorder or personality disorder.The Tribunal’s decision In its reasons for decision, the Tribunal recorded that Mr Meehan served in the Royal Australian Navy from 3 January 1968 to 2 January 1980. He was a member of the crew of HMAS Sydney when, during the course of the Vietnam war, it made two trips to Vietnam. On each trip HMAS Sydney spent a day in the port of Vung Tau. These visits occurred on 15 February 1969 and 19 May 1969, when Mr Meehan was only 17 years of age. In oral evidence, Mr Meehan claimed that, on each of the visits to Vung Tau, the ship was blacked out for some 24 hours and he was the upper deck sentry with responsibility to watch for divers or debris which could disguise mines. He said he was armed with an SLR rifle. Also, he acted as bowman in the landing craft ferrying soldiers and equipment to and from the ship:“He said that, at all times as sentry and bowman, he was afraid and thought he could die being in a war zone with no knowledge of how far away were any enemy. Scare charges were dropped near the ship with no set pattern or timing and they were very loud and startling particularly when off duty in the mess which was under the water-line. He could not recall whether scare charges were dropped when the ship was moving or only while at anchor. He accepted that no shots were fired and he did not see any killed or injured. He said that some large canvas-type bags were carried on to the ship and, not having seen them before, assumed that they were body bags. He said that the returning soldiers appeared old, tired and ‘cranky’ and he became concerned at leaving new troops behind if they were to finish in the same state. He was firm in his recollection of seeing two rockets fired towards ‘Radar Hill’ which was some 1000 metres from the ship. He did not know who fired them or anything else about them.” The Tribunal noted Mr Meehan’s claims about psychological disturbances he commenced to suffer after the visits to Vung Tan. The applicant’s wife, who met him in 1988, also gave evidence about his experiencing psychological problems. The Tribunal also noted evidence provided by three psychiatrists. Dr Graham Altman had treated Mr Meehan over a period of four years and believed he suffers severe chronic post traumatic stress disorder with major depression. Dr Altman thought, if he was wrong about that, the next most obvious diagnosis was generalised anxiety disorder with major depression. Dr Anthony Dinnen opined that Mr Meehan suffers from generalised anxiety disorder and psychoactive substance dependence, the latter condition being in remission. He thought that both conditions were present before Mr Meehan’s naval service but were aggravated by that service. Dr Dinnen believed Mr Meehan’s generalised anxiety disorder had been masked by his alcohol abuse until recent years, when he stopped drinking on a chronically heavy basis.

Ratio Decidendi

Legal Principle Established

Established by: WILCOX J

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