Repatriation Commission v Milenz

Case [2006] FCA 1436

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Milenz [2006] FCA 1436

ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal – Tribunal found that veteran suffered from three war-caused diseases – whether Tribunal erred in construction of ss 120(1), (3), (4), 120A(3) of Veterans’ Entitlements Act 1986 (Cth) – inquiry to be made under Deledio steps – whether Tribunal failed to address the requirements of the Statements of Principles with respect to two of the diseases – construction of phrase “clinical worsening” – whether material capable of supporting finding of clinical worsening of two of the diseases – conclusion in relation to third disease dependent on conclusion in relation to second disease. 

Administrative Appeals Tribunal Act 1975 (Cth) s 44
Veterans’ Entitlements Act 1986 (Cth) s 120(1), s 120(3), s 120(4) and s 120A(3)

Repatriation Commission v Gosewinckel (1999) 59 ALD 690 applied
Repatriation Commission v Deledio (1998) 83 FCR 82 applied
Lees v Repatriation Commission (2002) 125 FCR 331 cited
Repatriation Commission v Cornelius [2002] FCA 750 cited

Santa Sabina College v Minister for Education (1985) 58 ALR 527 cited

REPATRIATION COMMISSION v YURGEN MILENZ

No VID 1488 of 2005

FINN J
8 NOVEMBER 2006
DARWIN (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1488 OF 2005
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR J HANDLEY, SENIOR MEMBER

BETWEEN:

REPATRIATION COMMISSION
Applicant

AND:

YURGEN MILENZ
Respondent

JUDGE:

FINN J

DATE OF ORDER:

8 NOVEMBER 2006

WHERE MADE:

DARWIN (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The decision of the Tribunal be set aside.

3.The matter be remitted to the Tribunal for hearing and determination according to law.

4.The respondent pay the applicant’s costs of the appeal. 

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 1488 OF 2005
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR J HANDLEY, SENIOR MEMBER

BETWEEN:

REPATRIATION COMMISSION
Applicant

AND:

YURGEN MILENZ
Respondent

JUDGE:

FINN J

DATE:

8 NOVEMBER 2006

PLACE:

DARWIN (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

  1. This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) against a decision of the Administrative Appeals Tribunal reversing that of the Repatriation Commission and granting the respondent, Yurgen Milenz, a further pension entitlement in respect of the three war-caused diseases. These were alcohol abuse, depressive disorder and irritable bowel syndrome. These diseases or their aggravation were ascribed to the occurrence of a single event in 1971 when Mr Milenz was on war service in Vietnam as a crew member of HMAS Yarra. That event involved the ship being called to “action stations” and “locked down” for a short period, though hostile action did not ensue. Mr Milenz was locked below decks during this event. He believed he was at risk of death or serious injury. The event is said to have evoked feelings of substantial distress.

  2. The…

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Details
AGLC
Repatriation Commission v Milenz [2006] FCA 1436
Case
[2006] FCA 1436
Decision Date

CaseChat Overview and Summary

In the case of Repatriation Commission v Milenz, the dispute involved the determination of whether Mr. Milenz's alcohol abuse condition was caused by his service in the Vietnam War. The matter was heard in the Federal Court of Australia, where the Court was tasked with reviewing the decision of the Administrative Appeals Tribunal (AAT) concerning the Commission's rejection of Mr. Milenz's claim for compensation related to his alcohol abuse. The core legal issue that the Court had to decide was whether the Tribunal correctly assessed the causal link between Mr. Milenz's alcohol abuse and his war service under the relevant legislative framework.

The Court examined the Tribunal's decision-making process, particularly focusing on the Tribunal's interpretation and application of the statutory criteria for establishing the war-causation of Mr. Milenz's alcohol abuse. The Court noted that the Tribunal had concluded that Mr. Milenz's alcohol abuse worsened after his service and that this worsening could be linked to the war service. However, the Court found that the Tribunal had erred in its reasoning by not adequately addressing the medical evidence provided by the psychiatrists. Specifically, the Court highlighted that the Tribunal did not sufficiently consider the medical evidence that did not support a causal link between Mr. Milenz's alcohol abuse and his war service. Consequently, the Court concluded that the Tribunal's decision was flawed and needed to be set aside.

Ultimately, the Court allowed the appeal, set aside the Tribunal's decision, and remitted the matter back to the Tribunal for a fresh hearing and determination in accordance with the law. The Court also ordered that the respondent bear the costs of the appeal. This decision underscores the importance of a thorough and balanced consideration of all relevant evidence when determining the causation of conditions for the purposes of veterans' compensation.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Tribunal be set aside.

3. The matter be remitted to the Tribunal for hearing and determination according to law.

4. The respondent pay the applicant’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In consequence the Tribunal was not satisfied beyond reasonable doubt that the Commission had established that the condition of alcohol abuse was not war-caused.(ii) The medical evidence Three psychiatrists, Drs Percival, Ratnayake and Strauss provided reports for the Commission and two of them (Drs Percival and Strauss) gave brief oral evidence. Mr Milenz did not call any medical witnesses.Dr Percival I would note at the outset that the very detailed history of alcohol consumption which Dr Percival attributed to Mr Milenz was disputed in part by Mr Milenz. Dr Percival reaffirmed in cross-examination that the history was recounted as given. The history had Mr Milenz, by the end of his first year’s service in the navy and prior to his departure for Vietnam, drinking every day when on shore, getting so drunk that he had no idea of his total consumption of alcohol, and experiencing frank alcoholic blackouts as a consequence. Dr Percival’s report of 28 January 2003 noted (inter alia) that Mr Milenz:“… concedes that he was never at any time in any specific situation of danger, or even in a situation where he might have had a reasonable apprehension as to a specific danger, as opposed to the generalized uncertainty inevitably associated with service under the conditions of the Vietnam War. On one occasion, when HMAS Yarra was leaving harbour, the vessel was closed up at action stations, and actually fired its guns at a target whose nature was unknown at the time to Mr Milenz, and in fact has remained so, but there is no question of there having been any return fire.” His diagnosis in summary was that:“… there is a primary Axis I diagnosis of Alcohol Dependence, but no evidence to link this to the veteran’s war service, either in terms of the temporal relationship of the developing severity of his dependence and his period of eligible service, or in his having experienced any sufficiently stressful event during his eligible service for which could be reasonably argued at least a causal relationship to an alleged subsequent exacerbation of his problems with alcohol.”Dr Ratnayake Two reports were prepared by Dr Ratnayake, one on 23 June 2003, the other on 16 July 2003. The former diagnosed Mr Milenz as having Axis 1 alcohol abuse. Dr Ratnayake did not consider that that condition was the result of a factor listed in the SoP. Further, it was considered that Mr Milenz’s diagnosis could not be related to his eight day period of operational service. The report indicated that the earliest date for alcohol abuse would be shortly after he joined the Navy, around 1966 or 1967. In her second report, Dr Ratnayake noted the history in Dr Percival’s report and stated that it was difficult to establish when Mr Milenz first met the criteria for alcohol abuse. She could only state with certainty that, “at present, he fulfils the criteria for alcohol abuse”.Dr Strauss The doctor’s report of 11 October 2004 indicated the strong belief that Mr Milenz had a long standing depressive condition which, to a certain extent, would account for his alcohol abuse. That abuse began soon after he joined the Navy and this was confirmed by the histories given both to Dr Percival and to himself. Dr Strauss did not believe that the circumstances of Mr Milenz’s navy service satisfied any causal factor in relation to alcohol dependence or alcohol abuse.

Decision

Reasons for decision

FINN J
Because the above conclusion on this matter hangs off the Tribunal’s earlier conclusion on depressive disorder, it too must fall with my decision that that conclusion cannot stand. In consequence of this it is unnecessary to consider whether material relating to the concession noted above, which the Commission sought to tender after the hearing, should be admitted. Conclusions I will order that (i) the appeal be allowed; (ii) the decision of the Tribunal be set aside; (iii) the matter be remitted to the Tribunal for hearing and determination according to law; and (iv) the respondent pay the applicant’s costs of the appeal.

Ratio Decidendi

Legal Principle Established

Established by: FINN J

For the purposes of Deledio step four, the Tribunal was satisfied that (i) the psychosocial stressor was an identifiable event that evoked feelings of distress in Mr Milenz: Reasons [75]; and (ii) there had been a clinical worsening of the alcohol abuse: Reasons [77]. As to the latter, it commented at [78]:“The history of alcohol consumption is confusing and inconsistent, however, it was consumed prior to operational service. On occasions the quantity was immodest. But after operational service, the quantity, type and frequency of alcohol consumed was far greater. It follows that there has been a clinical worsening of alcohol abuse. The worsening, in my view is referable to him having experienced a severe stressor, as defined and within two years of the worsening. There was an event which objectively did occur and from which Mr Milenz suffered a subjective reaction. His increased alcohol consumption was an element of that reaction:” emphasis added. In consequence the Tribunal was not satisfied beyond reasonable doubt that the Commission had established that the condition of alcohol abuse was not war-caused.(ii) The medical evidence Three psychiatrists, Drs Percival, Ratnayake and Strauss provided reports for the Commission and two of them (Drs Percival and Strauss) gave brief oral evidence. Mr Milenz did not call any medical witnesses.Dr Percival I would note at the outset that the very detailed history of alcohol consumption which Dr Percival attributed to Mr Milenz was disputed in part by Mr Milenz. Dr Percival reaffirmed in cross-examination that the history was recounted as given. The history had Mr Milenz, by the end of his first year’s service in the navy and prior to his departure for Vietnam, drinking every day when on shore, getting so drunk that he had no idea of his total consumption of alcohol, and experiencing frank alcoholic blackouts as a consequence. Dr Percival’s report of 28 January 2003 noted (inter alia) that Mr Milenz:“… concedes that he was never at any time in any specific situation of danger, or even in a situation where he might have had a reasonable apprehension as to a specific danger, as opposed to the generalized uncertainty inevitably associated with service under the conditions of the Vietnam War. On one occasion, when HMAS Yarra was leaving harbour, the vessel was closed up at action stations, and actually fired its guns at a target whose nature was unknown at the time to Mr Milenz, and in fact has remained so, but there is no question of there having been any return fire.” His diagnosis in summary was that:“… there is a primary Axis I diagnosis of Alcohol Dependence, but no evidence to link this to the veteran’s war service, either in terms of the temporal relationship of the developing severity of his dependence and his period of eligible service, or in his having experienced any sufficiently stressful event during his eligible service for which could be reasonably argued at least a causal relationship to an alleged subsequent exacerbation of his problems with alcohol.”Dr Ratnayake