Repatriation Commission v Constable

[2006] FCAFC 102

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Constable [2006] FCAFC 102

VETERANS’ ENTITLEMENTS – Appeals - Statement of Principles – alcohol dependence or alcohol abuse - correct interpretation of the definition ‘experiencing a severe stressor’ - whether respondent’s alcohol abuse or dependence is related to his war service – whether there is a requirement of immediacy into the definition of ‘experiencing a severe stressor’ - whether there is a subjective element in the requirement of ‘experiencing a severe stressor’

Held: the primary judge was correct in ordering the matter be sent back to the AAT for consideration in accordance with the law – the primary judge was correct in concluding that the AAT had impermissibly imposed a requirement of immediacy into the definition of ‘experiencing a severe stressor’ in the Statement of Principles for alcohol dependence and alcohol abuse

Veterans’ Entitlements Act 1986 (Cth), ss 9, 120, 120A
Statement of Principles concerning Alcohol Dependence or Alcohol Abuse, Instrument No 76 of 1998

Repatriation Commission v Deledio (1998) 83 FCR 82 considered
Dixon v Repatriation Commission (1999) 29 AAR 235 cited
Repatriation Commission v Stoddart (2003) 77 ALD 67 cited
Stoddart v Repatriation Commission (2003) 74 ALD 366 cited
Woodward v Repatriation Commission (2003) 75 ALD 420 cited

REPATRIATION COMMISSION v ROBERT PATRICK CONSTABLE

QUD 228 of 2005

SPENDER, WEINBERG and EDMONDS JJ
26 JUNE 2006
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 228 of 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	REPATRIATION COMMISSION Appellant
AND:	ROBERT PATRICK CONSTABLE Respondent
JUDGES:	SPENDER,  WEINBERG and EDMONDS JJ
DATE OF ORDER:	26 JUNE 2006
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs, to be taxed if not agreed.      

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 228 of 2005

ON APPEAL FROM THE SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	REPATRIATION COMMISSION Appellant
AND:	ROBERT PATRICK CONSTABLE Respondent
JUDGES:	SPENDER,  WEINBERG and EDMONDS JJ
DATE:	26 JUNE 2006
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from a decision by a single judge of the Federal Court on 8 July 2005, setting aside a decision of the Administrative Appeals Tribunal (‘the AAT’) dated 4 November 2004, remitting the matter to the AAT for further consideration in accordance with law, and ordering the Repatriation Commission to pay Mr Constable’s costs.

2. The decision of the AAT which his Honour set aside was that the respondent’s condition of alcohol abuse or dependence was not a war-caused injury or disease for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’).

3. The proceedings at first instance, and this appeal, concern the proper interpretation and application of par 5(b) of Instrument No 76 of 1998, the Statement of Principles (the ‘SoP’) concerning Alcohol Dependence or Alcohol Abuse,…