O'Neil v Repatriation Commission

[2001] FCA 1492

FEDERAL COURT OF AUSTRALIA

O’Neil v Repatriation Commission [2001] FCA 1492

JOHN O’NEIL v REPATRATION COMMISSION
V921 OF 2000

NORTH J
13 SEPTEMBER 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V921 OF 2001

BETWEEN:	JOHN O’NEIL APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	13 SEPTEMBER 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application is allowed. 

2.        The decision of the Administrative Appeals Tribunal made on
           31 October 2000 is set aside. 

3.        The matter is remitted to the Administrative Appeals Tribunal for
           rehearing according to law. 

4.        The respondent is to pay the applicant’s costs of and incidental to the
           application.

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	V921 OF 2001

BETWEEN:	JOHN O'NEIL APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	NORTH J
DATE:	13 SEPTEMBER 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act) from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 31 October 2000.

2. The essential issue in the appeal relates to the meaning of the definition of ‘stressful event’ in the Statement of Principles, Instrument No 49 of 1994, concerning Generalised Anxiety Disorder.  How that central legal issue arises can be seen from the facts which are set out in the Tribunal’s decision at pars 8 – 11.  I do not propose to repeat those facts in this judgment.

3. The Statement of Principles (SoPs), so far as relevant, required the Tribunal to be satisfied that Mr O’Neil had established that he had experienced, in accordance with section (1)(a) of the SoPs:

   “a stressful event not more than one year before the clinical onset of generalised anxiety disorder.”

4. The SoPs defines ‘stressful event’ as:

   “an occurrence which evokes feelings of anxiety or stress.”

5. The way in which the Tribunal applied the SoPs to the facts is contained in pars 16 ‑ 21 of its decision, as follows:

   “16.The Tribunal turns to the relevant SoPs and Mr Moore’s and Mr Nyhof’s submissions.  Mr Moore contended that Mr O’Neil had experienced stressful events which evoked feelings of anxiety and stress during service and that the Tribunal should not confuse the issue with definitions in other SoPs, particularly the SoPs concerning post traumatic stress disorder.  That is clearly so.

   17.The Tribunal also accepts Mr Moore’s submission that it should take the applicant as it finds him, particularly with respect to his underlying personality and his subjective responses, but it is an objective test as to whether a stressful event occurred.  The Tribunal is reasonably satisfied that no stressful event did occur.  There was a breakout of Japanese prisoners of war at Cowra.  This was not an occurrence which Mr O’Neil experienced.  It occurred nine months prior to his arrival at Cowra.  Mr O’Neil was on guard duty over a number of nights.…