Repatriation Commission v Binding

[1999] FCA 974

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Binding [1999] FCA 974

ADMINISTRATIVE LAW – Veterans’ affairs – appeal from decision of Administrative Appeals Tribunal (“the AAT”) – whether error of law committed by the AAT in its approach to the definition of “experiencing a stressor” in determining whether post traumatic stress disorder war caused.

Veterans’ Entitlements Act 1986 (Cth) ss 120(1)&(3), 120A, 196B

Repatriation Commission v Deledio (1998) 83 FCR 82, referred to

Re Queensland Electricity Commission; Ex p Electrical Trades Union of Australia (1987) 72 ALR 1, applied

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, applied

REPATRIATION COMMISSION v MAXWELL WILLIAM BINDING

VG 243 of 1998

MARSHALL J
MELBOURNE
23 JULY 1999

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 243 OF 1998

BETWEEN:	REPATRIATION COMMISSION Applicant
AND:	MAXWELL WILLIAM BINDING Respondent
JUDGE:	MARSHALL J
DATE OF ORDER:	23 JULY 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

2.   The applicant pay the respondent’s costs of the appeal, including reserved costs, if any.

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	VG 243 OF 1998

BETWEEN:	REPATRIATION COMMISSION Applicant
AND:	MAXWELL WILLIAM BINDING Respondent

JUDGE:	MARSHALL J
DATE:	23 JULY 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal by the applicant, the Repatriation Commission (“the Commission”) from a decision of the Veterans’ Appeals Division of the Administrative Appeals Tribunal (“the AAT”) made on 15 May 1998.

2. In its decision the AAT set aside a decision of the Commission made on 13 December 1995. The Commission’s decision had been affirmed by the Veterans’ Review Board on 8 April 1997. The Commission decided that the post traumatic stress disorder suffered by the respondent, Mr Binding, was not war caused.

   Factual Background

3. Mr Binding served in the Royal Australian Navy (“the Navy”) commencing in November 1964 at the age of seventeen. After basic training he was assigned to HMAS Sydney. He had operational service for one month between 25 May 1965 and 25 June 1965 when he served on HMAS Sydney.

4. HMAS Sydney spent three days in Vung Tau Harbour in South Vietnam from 8 to 11 June 1965. Mr Binding served in the boiler room of HMAS Sydney, located seven levels below deck.

5. The AAT found that Mr Binding:

   “… was very frightened of being trapped in the boiler room. He could not see what was going on around the Sydney which heightened his fear. He considered that if the Sydney was hit by enemy fire there would be no escape for him… When he felt an explosion he had no way of knowing whether the explosion was due to a scare charge or enemy fire. He recalled that on one occasion he took off from the boiler room up a flight of stairs on hearing an explosion which he thought was different to…