Repatriation Commission v Brady

Case [2007] FCA 1087

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Brady [2007] FCA 1087

SOCIAL SECURITY – appeal from decision of Administrative Appeals Tribunal - pension entitlement of veteran – alcoholism and anxiety related diseases – whether reasonable hypothesis connecting veteran’s death and service – application of principles relevant to analysis – error of law 

Administrative Appeals Tribunal Act1975 (Cth) s 44
Veterans’ Entitlements Act1986 (Cth) ss 13, 14, 15, 120, 120A

Attorney-General (NSW) v Quin (1990) 170 CLR 1 cited
Bull v Repatriation Commission (2001) 188 ALR 756 cited
Byrnes v Repatriation Commission (1993) 177 CLR 564 cited
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 cited
Constable v Repatriation Commission [2005] FCA 928 cited
Deledio v Repatriation Commission (1997) 47 ALD 261 cited
East v Repatriation Commission (1987) 16 FCR 517 cited
Ergon Energy Corporation Ltd v Commissioner of Taxation (2006) 232 ALR 652 cited
Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 distinguished
Hill v Repatriation Commission [2005] FCAFC 23 referred to
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80 ALJR 367 cited
Repatriation Commission v Bey (1997) 79 FCR 364 cited
Repatriation Commission v Butcher (2007) 94 ALD 364 cited
Repatriation Commission v Cornelius [2002] FCA 750 referred to
Repatriation Commission v Codd [2007] FCA 877 cited
Repatriation Commission v Deledio (1998) 83 FCR 82 cited
Repatriation Commission v Milenz (2006) 93 ALD 107 cited
Repatriation Commission v Owens (1996) 70 ALJR 904 cited

REPATRIATION COMMISSION v WILLIAM BRADY
VID 320 OF 2007

GORDON  J
31 JULY 2007
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 320 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR J HANDLEY, SENIOR MEMBER

BETWEEN:

REPATRIATION COMMISSION
Applicant

AND:

WILLIAM BRADY
Respondent

JUDGE:

GORDON  J

DATE OF ORDER:

31 JULY 2007

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The Appeal is allowed.

2.The decision of the Administrative Appeals Tribunal is set aside.

3.The matter is remitted to the Administrative Appeals Tribunal for further hearing and determination according to law by a differently constituted Tribunal.  

4.There will be no order as to costs.

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

VID 320 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR J HANDLEY, SENIOR MEMBER

BETWEEN:

REPATRIATION COMMISSION
Applicant

AND:

WILLIAM BRADY
Respondent

JUDGE:

GORDON  J

DATE:

31 JULY 2007

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. Mr William Brady (“the veteran”) is a Vietnam Veteran.  He served in Vietnam between 2 April 1970 and 12 December 1970 as a member of the 102 Field Workshops. 

  2. On 20 April 2007, the Repatriation Commission (“the Commission”) appealed under s 44(1) of the Administrative Appeals Tribunal Act1975 (Cth) (“the AAT Act”) against the decision of the Administrative…

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Details
AGLC
Repatriation Commission v Brady [2007] FCA 1087
Case
[2007] FCA 1087
Decision Date

CaseChat Overview and Summary

The case of Repatriation Commission v Brady involved an appeal by the Repatriation Commission against a decision of the Administrative Appeals Tribunal (AAT) which determined that the veteran's conditions of anxiety disorder and alcohol dependence were war-caused. The High Court of Australia was tasked with reviewing the AAT's decision and its application of the Deledio methodology in determining the origin of the veteran's conditions. The central legal issue revolved around whether the Tribunal appropriately applied the Deledio methodology in assessing if the veteran's conditions were war-caused, specifically if the veteran's exposure to a severe stressor during service was a significant contributing factor.

The Court found that the Tribunal had correctly applied the Deledio methodology in its assessment, particularly in identifying a hypothesis connecting the veteran's service to his conditions and determining the reasonableness of this hypothesis. However, the Court held that the Tribunal failed to adequately address whether the incapacity arose from a war-caused injury, as required by the fourth step of the Deledio methodology. The Court noted that the Tribunal did not sufficiently consider the evidence regarding the veteran's pre-service and pre-clinical onset alcohol consumption and the nature of the stressor he experienced during service.

Consequently, the Court set aside the AAT's decision and remitted the matter back to the Tribunal for further consideration and determination in accordance with the law. The Court emphasised that the Tribunal must ensure it thoroughly examines all relevant evidence and appropriately applies the Deledio methodology in its assessment. The final orders of the Court allowed the appeal, set aside the AAT's decision, and remitted the matter back to the AAT for reconsideration by a differently constituted Tribunal, with no order as to costs.

Orders

Orders of the court

1. The Appeal is allowed.

2. The decision of the Administrative Appeals Tribunal is set aside.

3. The matter is remitted to the Administrative Appeals Tribunal for further hearing and determination according to law by a differently constituted Tribunal.

4. There will be no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In reaching the conclusion that it did, there was no dispute that the Tribunal considered that it should follow and, in fact, did follow the Deledio methodology. As to the first two steps in the Deledio methodology, the Tribunal was satisfied that:(1)“a hypothesis connecting the injury or disease of anxiety disorder and alcohol dependence or alcohol abuse …with service [did] exist because there [was] material pointing to it [and that] hypothesis raised emerged … obviously and directly from the evidence… (refer Hill v Repatriation Commission [2005] FCAFC 23 at paragraph 98)”;(2)there were SoPs with respect to generalised anxiety disorder (No. 1 of 2000) (“the Anxiety SoP”) and alcohol dependence and alcohol abuse (No. 76 of 1998) (“the Alcohol SoP”);(3)with respect to the Anxiety SoP, the applicable factor was “experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder”: factor 5(a)(ii). The expression “severe psychosocial stressor” was defined in para 8 of the Anxiety SoP to mean “an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems”;(4)with respect to the Alcohol SoP, the applicable factor was “experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse”: factor 5(b). The third step of the Deledio methodology required the Tribunal to examine if the hypothesis was reasonable. The Tribunal found that the hypotheses were reasonable on the grounds that there was material pointing to the veteran having experienced a “severe psychosocial stressor” and a “severe stressor” within two years immediately before the clinical onset of the respective disorders. The fourth step of the Deledio methodology required the Tribunal to make findings of fact to determine whether it was satisfied beyond reasonable doubt that the incapacity did not arise from a war-caused injury. The Tribunal made the following findings of fact:(1)the veteran drank minimum quantities of alcohol on an infrequent basis both prior to enlistment and prior to commencing his service in Vietnam; (2)during his service in Vietnam, he “became apprehensive and fearful by a number of circumstances to which he had no direct involvement but by reason of his location he was concerned that they could get [him]” (original emphasis); (3)a helicopter incident in Vietnam was the most significant event to which the veteran was exposed and prior to that helicopter incident, the veteran was emotionally vulnerable. The helicopter incident was described in the following terms:“the [veteran] was a passenger … where he heard someone say “we’ve been hit” and the helicopter suddenly lurched. Door gunners then opened fire from each side of the helicopter, it descended quickly, the [veteran] thought that it would crash and on landing, an inspection revealed the presence of a bullet or a bullet hole. Whilst there were slight variations in that account of the episode by the [veteran’s] colleagues .., the incident itself and the circumstances immediately before landing, were corroborated. Indeed, [one colleague] said that he “feared that we would not make it” and [another colleague] said that he observed the [veteran] to be shaken. [The second colleague] said that he continues to have nightmares and dreams about that incident.” (Emphasis original)(4)as a result of the helicopter incident, the veteran significantly increased his alcohol consumption “to help him cope and to help him sleep”;(5)the helicopter incident was, within the meaning of the respective SoPs, a “severe psychosocial stressor” and a “severe stressor” and did occur within two years of the clinical onset of the respective diseases. In particular, the Tribunal was satisfied that the veteran, within two years of the helicopter incident, exhibited features or symptoms which would have caused a medical practitioner to diagnose the relevant disease or injury as then being present; and(6)the veteran’s injuries of anxiety and alcohol abuse or alcohol dependence were war-caused.

Decision

Reasons for decision

GORDON J
This aspect of the decision of the Tribunal will also be set aside and remitted to the Tribunal for further hearing and determination according to law.CONCLUSION For these reasons, I would allow the appeal, set aside the decision of the Administrative Appeals Tribunal and remit the matter to the Administrative Appeals Tribunal for further hearing and determination according to law by a differently constituted Tribunal. There will be no order as to costs.

Ratio Decidendi

Legal Principle Established

Established by: GORDON J

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