FEDERAL COURT OF AUSTRALIA
Repatriation Commission v Holden [2014] FCA 605
Citation: Repatriation Commission v Holden [2014] FCA 605 Parties: REPATRIATION COMMISSION v JEAN ISABEL HOLDEN and ADMINISTRATIVE APPEALS TRIBUNAL File number: VID 1287 of 2013 Judge: MORTIMER J Date of judgment: 12 June 2014 Catchwords: ADMINISTRATIVE LAW – veteran’s entitlements – widow’s pension claim – appeal from decision of Administrative Appeals Tribunal – whether Tribunal erred in construction of phrase “sufficient to warrant ongoing management” – whether there was no evidence on which the Tribunal’s conclusions could be based – whether the Tribunal complied with the requirement to give reasons under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) – nature of appropriate relief –decision set aside – direction given to Tribunal to provide further reasons and reissue its decision Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 43, 43AA, 44
Veterans’ Entitlements Act 1986 (Cth) ss 5C(1), 6A-6F, 7, 8, 13, 120, 120A, 196B(2)
Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321; [2003] FCAFC 232Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56
Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554; [2009] FCAFC 137
Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 108 ALD 329; [2009] FCA 49
Dornan v Riordan (1990) 24 FCR 564Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32
McKenna v Repatriation Commission (1999) 86 FCR 144; [1999] FCA 323
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30
Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141; [2001] FCA 744
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32
O’Dowd v Repatriation Commission [2013] FCA 991
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100
Rana v Repatriation Commission (2011) 126 ALD 1; [2011] FCAFC 124Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 133 ALD 39; [2013] FCAFC 26
Re Minister for Immigration and Multicultural Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock (2003) 37 AAR 383; [2003] FCA 711
Repatriation Commission v O’Brien (1985) 155 CLR 422
Simos v Repatriation Commission (2013) 212 FCR 391; [2013] FCA 607
TelePacific Pty Ltd v Commissioner of Taxation (2005) 218 ALR 85; [2005] FCA 158
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CaseChat Overview and Summary
The central legal issue before the court was the interpretation of the phrase "sufficient to warrant ongoing management" as it applied to Mr Holden's PTSD under the relevant provisions of the 2007 Schedule of Pensions. The applicant argued that the Tribunal had misconstrued this phrase, contending that it required actual ongoing management, a medical recommendation for such management, or a finding by the Tribunal itself that management was needed. Alternatively, the applicant argued that there was no evidence to support the Tribunal's conclusions. The court had to decide whether the Tribunal's reasoning and findings were legally sound and supported by the evidence.
The court found that the Tribunal had not misconstrued the phrase "sufficient to warrant ongoing management." It noted that there was no obligation for the Tribunal to explicitly set out its construction of the phrase. The court accepted that the phrase required an objective judgment by the Tribunal based on the evidence, rather than a historic fact or a medical opinion. The court emphasised that it was within the Tribunal's discretion to determine whether Mr Holden's PTSD warranted ongoing management, and the absence of medical evidence did not preclude such a finding. The court concluded that the Tribunal had made its findings correctly and that there was no basis to infer that the Tribunal had misunderstood or misconstrued the phrase.
In conclusion, the Full Court dismissed the appeal, affirming the Tribunal's decision. The court held that the Tribunal had properly exercised its discretion in finding that Mr Holden's PTSD was sufficient to warrant ongoing management, and that its conclusions were supported by the evidence. The Full Court's decision underscored the importance of allowing the Tribunal to make its own findings in such cases, provided they are based on a fair and reasoned consideration of the evidence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Although she accepted the brevity of the Tribunal’s reasoning at [47]-[48], the first respondent submitted that a fair reading of the Tribunal’s reasons, especially appreciating that the same material it relied on for the finding about Mr Holden suffering from PTSD could be used to assess severity, meant that it had set out earlier in its reasons enough material to satisfy the obligation in s 43(2B) to “refer” to the evidence or other material on which its findings in those paragraphs were based.CONSIDERATIONQuestion 1: construction of “sufficient to warrant ongoing management” In my opinion, the Tribunal’s reasons do not disclose any misconstruction of this phrase. It must be said that the reasons disclose no express construction at all. However, there is, as the applicant accepted, no obligation on the Tribunal (whether through s 43(2), s 43(2B) or otherwise) to set out in express terms its construction of part of a SoP in a circumstance such as this. I am not prepared to infer from the Tribunal’s conclusion on this issue, favourable to Mrs Holden, that it had misunderstood or misconstrued the phrase. After some development in oral submissions, the parties substantially agreed on the proper construction of this phrase. They agreed, and I accept, that the phrase is not directed solely at whether in fact a veteran obtained management for a clinically significant anxiety spectrum disorder. The phrase “sufficient to warrant” refers to an objective judgment to be made by the Tribunal on the basis of the evidence at the time of the review, rather than by reference to historic fact. Nor, as counsel for the applicant properly conceded, does the phrase require that there be any expert or medical opinion that management of the condition is warranted. Of course, in a given case there may be such evidence and the Tribunal will need to consider such evidence, and the weight to be given to it. Ultimately, however, like every other aspect of the SoP (see O’Dowd v Repatriation Commission [2013] FCA 991 at [37] per Marshall J and the cases there referred to), it is for the Tribunal itself to make findings about whether the condition suffered by the veteran is the condition specified in the SoP, and whether the SoP upholds the hypothesis put forward, so as to meet the reasonableness requirement in s 120A(3). In this case, the Tribunal made its own findings, as it was required to do. The fact that there was no medical evidence about the “need” for management of Mr Holden’s PTSD did not preclude the Tribunal making a finding that his PTSD was “sufficient to warrant ongoing management”. The applicant accepted, by reference to the observations of Tracey J in Simos 212 FCR 391; [2013] FCA 607 at [58] about a different SoP, that the word “warrant” means in this context “justify”. Accepting that meaning, the word “warrant” forms part of a larger phrase, used in a particular context and as part of a larger set of criteria. It is important to construe the phrase as a whole: Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 at [24] per French CJ and Hayne J; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] per McHugh, Gummow, Kirby and Hayne JJ.