Repatriation Commission v Robertson

Case [2007] FCA 1674

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Robertson [2007] FCA 1674

VETERAN’S ENTITLEMENT – Whether injuries or disabilities related to eligible service – wrong test identified and decided by Administrative Appeals Tribunal – findings made in the absence of evidence – whether futile to remit to Administrative Appeals Tribunal upon the possibility of a different outcome being reached.

Held: Appeal allowed, proceedings remitted to Administrative Appeals Tribunal

Administrative Appeals Tribunal Act 1975 (Cth), s 44(5)
Veteran’s Entitlement Act 1986 (Cth), ss 9, 68, 70, 120, 196B

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 followed
Arnott v Repatriation Commission (2001) 106 FCR 83 referred to
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to
Comcare v Sahu-Khan (2007) 156 FCR 536 referred to
Craig v South Australia (1995) 184 CLR 163 followed
Deledio v Repatriation Commission (1997) 25 AAR 396 referred to
Lees v Repatriation Commission (2002) 125 FCR 331 referred to
Mines v Repatriation Commission (2004) 40 AAR 238 followed
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 32 followed
Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 referred to
Re Robertson v Repatriation Commission (1998) 50 ALD 668 referred to
Repatriation Commission v Bendy (1989) 18 ALD 144 referred to
Repatriation Commission v Brady [2007] FCA 1087 referred to
Repatriation Commission v Cornelius [2002] FCA 750 referred to
Repatriation Commission v Deledio (1998) 83 FCR 82 referred to
Repatriation Commission v Milenz (2006) 43 AAR 565 referred to
Santa Sabina College v Minister for Education (1985) 58 ALR 527 referred to
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 referred to

REPATRIATION COMMISSION v PETER ROBERTSON
NSD 552 OF 2007

COWDROY J
4 DECEMBER 2007
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 552 OF 2007

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

REPATRIATION COMMISSION
Appellant

AND:

PETER ROBERTSON
Respondent

JUDGE:

COWDROY J

DATE OF ORDER:

4 DECEMBER 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The decision of the Administrative Appeals Tribunal of 7 March 2007 be set aside.

2.The matter be remitted to the Administrative Appeals Tribunal, differently constituted, for determination according to law.

3.The Respondent pay the Appellant’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

NEW SOUTH WALES DISTRICT REGISTRY

NSD 552 OF 2007

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

REPATRIATION COMMISSION
Appellant

AND:

PETER ROBERTSON
Respondent

JUDGE:

COWDROY J

DATE:

4 DECEMBER 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. The Repatriation Commission (‘the Commission’) appeals from a decision of the Veterans’ Appeals Division of the Administrative Appeals Tribunal (‘the Tribunal’) dated 7 March 2007. The Tribunal set aside the decision of the Commission which found that medical conditions from which the respondent (‘Mr Robertson’) suffers are not defence caused.

    BACKGROUND FACTS

  2. Mr Robertson served with…

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Details
AGLC
Repatriation Commission v Robertson [2007] FCA 1674
Case
[2007] FCA 1674
Decision Date

CaseChat Overview and Summary

The Repatriation Commission appeals from the decision of the Veterans’ Appeals Division of the Administrative Appeals Tribunal which held that the respondent, Mr Robertson, was entitled to a Disability Pension in respect of his post-traumatic stress disorder, alcohol dependence and major depression. The Tribunal held that these conditions were related to his service in the Royal Australian Navy. The Commission argues that Mr Robertson’s conditions were not related to his service and that the Tribunal applied the wrong legal tests in reaching its decision.

The court was required to determine whether the Tribunal applied the correct legal tests in deciding whether Mr Robertson's conditions were related to his service. The court also needed to consider whether the Tribunal’s error was such that the matter should be remitted to the Tribunal for redetermination, or whether it was so fundamental that the Commission was entitled to succeed on the merits. The Commission contended that the Tribunal misapplied the statutory provisions of the Veterans’ Entitlements Act 1986 (Cth) by referring to the wrong sections and failing to properly address the issue of whether Mr Robertson’s conditions were ‘defence caused’.

The court found that the Tribunal had indeed applied the wrong legal tests in reaching its decision. The Tribunal had referred to the wrong sections of the Act and had not properly considered whether Mr Robertson’s service was ‘defence service’ or whether his conditions were ‘defence caused’. The court held that these errors were jurisdictional and that the Tribunal’s decision should be set aside and the matter remitted for redetermination. The court rejected the Commission’s argument that the Tribunal’s error was so fundamental that the Commission was entitled to succeed on the merits. The court held that there was a possibility that the Tribunal might reach a different result if it applied the correct legal tests.

ORDERS:
1. The decision of the Administrative Appeals Tribunal of 7 March 2007 be set aside.
2. The matter be remitted to the Administrative Appeals Tribunal, differently constituted, for determination according to law.
3. The Respondent pay the Appellant’s costs of the appeal.

Orders

Orders of the court

1. The decision of the Administrative Appeals Tribunal of 7 March 2007 be set aside.

2. The matter be remitted to the Administrative Appeals Tribunal, differently constituted, for determination according to law.

3. The Respondent pay the Appellant’s costs of the appeal.

Background

Background to the litigation

The Repatriation Commission (‘the Commission’) appeals from a decision of the Veterans’ Appeals Division of the Administrative Appeals Tribunal (‘the Tribunal’) dated 7 March 2007. The Tribunal set aside the decision of the Commission which found that medical conditions from which the respondent (‘Mr Robertson’) suffers are not defence caused. BACKGROUND FACTS Mr Robertson served with the Royal Australian Navy (‘the RAN’) from 5 January 1965 to 22 March 1988 and had been trained as a diver. By the end of his naval career he had attained the rank of Chief Petty Officer. On 3 June 1969 Mr Robertson was serving on HMAS Melbourne when it collided with USS Frank E Evans. As a diver his duties immediately following the collision included recovery of survivors, bodies and body parts. Subsequently he experienced psychological stressors caused by his involvement in a diving incident in Hong Kong; being in proximity to HMAS Melbourne and experiencing a fire on HMAS Supply. Following his discharge from the RAN in 1988 Mr Robertson claimed to suffer from post traumatic stress disorder (‘PTSD’), alcohol dependence and major depression. On 12 September 2003 Mr Robertson lodged a claim with the Commission for a Disability Pension in respect of such conditions on the basis that they were related to his service in the RAN. In its decision of 28 April 2004 the Commission determined that Mr Robertson’s depressive disorder, PTSD, alcohol dependence or alcohol abuse and hypertension were not service related diseases or injuries within the meaning of s 70 of the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’). Mr Robertson appealed such decision to the Veterans Review Board (‘the VRB’) on 11 May 2004. On 2 December 2004 the VRB affirmed the Commission’s decision. On 16 February 2005 Mr Robertson lodged an Application for Review of the VRB’s decision with the Tribunal. On 7 March 2007 the Tribunal set aside the decision of the VRB and determined that Mr Robertson’s PTSD, alcohol dependence and major depression were related to his ‘eligible service’. By Amended Notice of Appeal filed on 30 July 2007 the Commission appeals to this Court from the decision of the Tribunal.STATUTORY PROVISIONS Section 70(1) contained in Division 2 of Part IV of the Act makes provision for pensions payable by the Commonwealth of Australia to a member of the Forces, as defined, who is incapacitated, or who dies, from a defence-caused injury or disease. Section 70(5) makes provision for the circumstances in which an injury or disease suffered by a member of the Forces shall be taken to be defence caused. Such circumstances include those in which a member of the Forces suffers aggravation of or contribution to a condition due to defence service rendered after the member suffered the injury or contracted the disease: see s 70(5)(d). Part XIA of the Act provides for the establishment, functions and powers of the Repatriation Medical Authority (‘the Authority’). Section 196B thereof sets out the functions of the Authority and relevantly provides, inter alia, for the determination by it of a Statement of Principles (‘SoP’) in respect of various kinds of conditions, and factors which must exist and be related to service rendered by a person before it can be said that a reasonable hypothesis has been raised connecting such conditions with the service rendered. STATEMENTS OF PRINCIPLES

Evidence

Evidence Before The Court

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Decision

Reasons for decision

COWDROY J
In view of the Tribunal’s application of the erroneous tests referred to above in relation to Mr Robertson’s PTSD, namely the failure to find that Mr Robertson’s service was ‘defence service’, and whether the PTSD was ‘defence-caused’, the Tribunal misdirected itself. Further, in consequence of the finding in relation to the cause of Mr Robertson’s PTSD, the findings of the Tribunal relating to the depressive illness cannot be maintained as any finding is dependent upon the existence of Mr Robertson’s PTSD as being defence caused.CONCLUSION The Commission submits that the Court should find that the collision between HMAS Melbourne and USS Frank E Evans was the stressor which caused Mr Robertson’s PTSD, and that as such his PTSD, his alcohol dependence and his major depressive illness were not ‘defence caused’. Mr Robertson submits that the Tribunal’s findings relating to his PTSD and depression should be upheld, and that only the claim relating to his alcohol dependence should be referred to the Tribunal for redetermination. The Court is not satisfied that if the Tribunal had addressed the correct questions, its decision would be the same, irrespective of the error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 384. The errors of the Tribunal include the reference to eligible service under s 9(1) when the correct test was contained in s 70(5) of the Act; the reference to ‘war service’ when the only service relevant was Mr Robertson’s ‘defence service’; the failure to refer to the correct provisions in s 70(5) of the Act; and the finding made in the absence of evidence of Mr Robertson’s alcohol dependence. The Tribunal did not identify the correct issues which it was required to determine and accordingly fell into jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 347-348. In view of the above findings of error in the decision of the Tribunal, the Court is not of the opinion that it would be ‘futile to remit the matter’: see Arnott v Repatriation Commission (2001) 106 FCR 83 at [36]. Rather the Court considers that there is a possibility that a different result would be reached on such remitter: see Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540; and Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 at 213-214. Accordingly the Court orders that the Tribunal’s decision be set aside and the proceedings be remitted for determination by a differently constituted Tribunal pursuant to s 44(5) of the Administrative Appeals Tribunal Act 1975 (Cth).

Ratio Decidendi

Legal Principle Established

Established by: COWDROY J

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