Renton v Repatriation Commission - [2009] FCA 268

FEDERAL COURT OF AUSTRALIA
Renton v Repatriation Commission [2009] FCA 268
VETERANS’ ENTITLEMENTS – Statement of Principles – alcohol dependence or alcohol abuse – whether applicant experienced a severe stressor – whether inability to obtain appropriate clinical management
ADMINISTRATIVE APPEALS TRIBUNAL – appeal from decision of the Tribunal – question of law – whether s 119(1)(h) and s 120 of the Veterans’ Entitlements Act 1986 (Cth) correctly applied – whether Statement of Principles correctly applied
Veterans’ Entitlements Act 1986 (Cth) ss 13(1), 119(1)(f), (g), (h), 120, 120A
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Repatriation Commission v Deledio (1998) 83 FCR 82 applied
Fenner v Repatriation Commission (2005) 218 ALR 122 cited
Stoddart v Repatriation Commission (2003) 74 ALD 366 considered
Repatriation Commission v Constable (2006) 151 FCR 391 applied
DONALD KEITH RENTON v REPATRIATION COMMISSION
QUD 280 of 2007
DOWSETT J
27 MARCH 2009
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 280 of 2007

BETWEEN:
DONALD KEITH RENTON
Applicant

AND:
REPATRIATION COMMISSION
Respondent

JUDGE:

DOWSETT J

DATE:

27 MARCH 2009

PLACE:

BRISBANE

REASONS FOR JUDGMENT
BACKGROUND

The applicant served in the Australian Army from 5 March 1968 until 2 December 1970. His service included a period of operational service in Vietnam from 4 June until 24 September 1970. The applicant claims a disability pension pursuant to s 13(1) of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). It has been accepted that he suffers from an anxiety condition which was war-caused. He claims also to suffer from war-caused alcohol dependence. The respondent (the “Commission”) rejected the claim. That decision was upheld by Veterans’ Review Board (the “Board”). The Administrative Appeals Tribunal (the “Tribunal”) upheld the Board’s decision. The applicant appeals against that decision.
LEGISLATION
Section 9(1) of the Act relevantly provides:
(1)Subject to this section, for the purposes of this Act … a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the … disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; [or]
(b)the … disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; [or]
…
The claim is pursuant to Part II of the Act. Section 120 prescribes the standard of proof to be applied in such claims. Relevantly, it provides that:
(1)Where a claim under Part II for a pension in respect of the incapacity from … disease of a veteran, … relates to the operational service rendered by the veteran, the Commission shall determine that the … disease was a war-caused disease … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
(2)…
(3)In applying subsection (1) … in respect of the incapacity of a person from … disease … related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
…
(b) that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Renton v Repatriation Commission

Details

AGLC: Renton v Repatriation Commission [2009] FCA 268
Case: [2009] FCA 268
Decision Date: 27 March 2009

CaseChat Overview and Summary

In the case of Renton v Repatriation Commission, the dispute centered on whether the applicant’s alcohol dependence condition was related to his war service. The matter was considered by the Tribunal, which needed to determine whether the applicant’s condition was linked to his military service under Section 120 of the relevant Act. This required the Tribunal to follow a four-step reasoning process, as outlined in the Full Federal Court's decision in Repatriation Commission v Deledio.

The Tribunal began by evaluating the applicant’s hypotheses regarding the cause of his alcohol dependence. The first hypothesis was that the condition resulted from alleged stressors during his service, while the second posited that it stemmed from his attempts to cope with an anxiety condition. The Tribunal accepted that the evidence supported both hypotheses. The next step involved applying the Standard of Proof (SoP) and considering whether the applicant's experiences met the criteria for severe stressors. The Tribunal found that the applicant's description of handling casualty lists did not meet the definition of a severe stressor, but acknowledged that the incident in Saigon could have been a severe stressor. However, the Tribunal concluded that the applicant’s account of the Saigon incident was implausible, thereby rejecting it as a cause.

Upon evaluating the evidence, the Tribunal determined that the applicant’s alcohol dependence likely began before the Saigon incident. As a result, the Tribunal concluded that the applicant could not have been suffering from an anxiety condition at the onset of his alcohol dependence, thereby rejecting his claim for war-related causation of his condition.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOWSETT J

Although the matter is not clear, it seems that the applicant also referred to paras 5(c) and 5(e) of the SoP.THE TRIBUNAL’S DECISION At para 2 of its reasons the Tribunal observed that:The parties agree the applicant suffers from an alcohol dependence condition. I accept the medical evidence to that effect. The question is whether the condition is related to his war service. That determination must be made having regard to s 120 of the Act. The Full Federal Court in Repatriation Commission v Deledio … said it was necessary to follow a four-step reasoning process in the application of s120 where a claim is made in respect of the periods of operational service. In considering the first step prescribed by Deledio, the Tribunal identified the applicant’s first hypothesis as being that the alleged stressors had caused his alcoholic dependence. The Tribunal concluded that the “material taken as a whole points to the hypothesis for which the applicant contends”. The second hypothesis was that his alcohol dependence resulted from his attempts to cope with his anxiety condition. The Tribunal accepted that the material also pointed to that hypothesis. In connection with the second step contemplated in Deledio, the Tribunal identified the SoP and then proceeded to the third step. With respect to the applicant’s handling of the casualty lists, the Tribunal was not satisfied that the events as he described them satisfied the definition of a severe stressor in the SoP on the basis that “none of the names he feared seeing were ever included on the list”. Additionally, the Tribunal concluded that:A person with the background and experience of the applicant – even one with a relative who had been hurt in the past – would not have regarded the experience of reading the lists as a severe stressor of a kind or magnitude of the other examples given in the definition.(Original emphasis.) The Tribunal then considered the events in Saigon. It was common ground that an incident such this would have been a severe stressor for the purposes of the SoP. The Tribunal noted that the SoP required that the severe stressor have occurred within two years before the clinical onset of alcohol dependence. The Tribunal considered that there was evidence suggesting that his alcohol dependence arose in 1970 following the alleged incidents. However there was also evidence which, in the Tribunal’s view, pointed to an earlier onset. Nonetheless, for the purposes of the third step, the Tribunal accepted that on the applicant’s evidence, the severe stressor arguably occurred within the prescribed time frame. The Tribunal then considered the applicant’s hypothesis based upon his anxiety condition, accepting that there was evidence suggesting that the condition arose out of the same circumstances as caused the applicant’s alcohol dependence. On that basis, the Tribunal accepted that the hypothesis was “capable of fitting the template of the SoP”. The Tribunal proceeded to the fourth step prescribed in Deledio, considering whether it was satisfied beyond reasonable doubt that there was no sufficient ground for deciding that the applicant’s alcohol dependency was war-caused. It concluded that the applicant’s account of the Saigon incident was implausible. It did not accept that the incident had occurred. This left the hypothesis that his anxiety condition had been caused by his alcohol dependence. The Tribunal concluded that the onset of such dependence was prior to the Saigon incident. The anxiety condition had been allegedly caused by that incident. Thus the applicant could not have been suffering from it at the time of onset of his alcohol dependence.

Ratio Decidendi

Legal Principle Established

Established by: DOWSETT J

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IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 280 of 2007

BETWEEN:	DONALD KEITH RENTON Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	DOWSETT J
DATE:	27 MARCH 2009
PLACE:	BRISBANE