ADMINISTRATIVE LAW – whether Administrative Appeals Tribunal (the Tribunal) was entitled to rely on concession made by Repatriation Commission – true meaning and effect of concession – concession made that evidence satisfied all criteria but one for veteran’s entitlement to pension and that Tribunal need concern itself only with that one Held: Tribunal entitled to act on concession, and no error of law in failing to satisfy itself independently that the other criteria were satisfied
VETERAN’S AFFAIRS – whether Administrative Appeals Tribunal (the Tribunal) was entitled to rely on concession made by Repatriation Commission – true meaning and effect of concession – concession made that evidence satisfied all criteria but one for veteran’s entitlement to pension and that Tribunal need concern itself only with that one Held: Tribunal entitled to act on concession, and no error of law in failing to satisfy itself independently that the other criteria were satisfied
LINDGREN, BENNETT AND LOGAN JJ 24 APRIL 2008 BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 189 OF 2007
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
REPATRIATION COMMISSION Appellant
AND:
MICHAEL ANTHONY WARREN Respondent
JUDGES:
LINDGREN, BENNETT AND LOGAN JJ
DATE OF ORDER:
24 APRIL 2008
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs.
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 189 OF 2007
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Repatriation Commission v Warren [2008] FCAFC 64
Case
[2008] FCAFC 64
Decision Date
CaseChat Overview and Summary
This case, Repatriation Commission v Warren, involved Mr Warren, a former member of the Australian Regular Army, who claimed a disability pension under the Veterans' Entitlements Act 1986 (Cth) due to stress, depression, anxiety, and alcoholism. The dispute centred on whether his conditions were related to his operational service in South Vietnam, which would make them war-caused and eligible for a pension. The Repatriation Commission initially determined that the claimed conditions were not related to Mr Warren's operational service, a decision upheld by the Veterans' Review Board. Mr Warren subsequently appealed this decision to the Administrative Appeals Tribunal, which found in his favour.
The key legal issues in this case were the interpretation of concessions made by the Repatriation Commission during the Tribunal hearing and whether the Tribunal was justified in relying on these concessions to reach its decision. Specifically, the court had to determine if the Commission's concession that Mr Warren had post-traumatic stress disorder (PTSD) and alcohol dependence (AD) constituted an admission that these conditions were war-caused, thereby satisfying the statutory criteria for a war-related pension.
The court found that the Tribunal was entitled to act on the Commission's concessions. It concluded that the concessions amounted to an admission that Mr Warren had PTSD and AD, which were the conditions he claimed were war-caused. The court further held that the Tribunal was not required to independently verify the war-related nature of these conditions, as the concessions effectively addressed the key elements of the statutory criteria. The court's reasoning was based on the fact that the concessions made by the Commission were clear and unambiguous, and the Tribunal had the authority to rely on them in making its decision.
The final orders of the court were that the appeal by the Repatriation Commission be dismissed, and that the appellant pay the respondent's costs. The court agreed with the reasoning of the lower tribunal, affirming that the concessions made by the Commission were sufficient for the Tribunal to find in favour of Mr Warren. This decision underscores the importance of clear and explicit concessions in administrative proceedings and the deference owed to tribunals when they act on such concessions.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs.
Background
Background to the litigation
The appeal raises questions as to:·the true meaning of concessions made by the Commission in the course of the hearing before the Tribunal; and·whether the Tribunal was entitled to act on those concessions.BACKGROUND Mr Warren had served in the Australian Regular Army between 1963 and 1972. He saw “operational service” in South Vietnam between January 1971 and March 1972. He was discharged from the Australian Regular Army in June 1972. On 15 October 2002 Mr Warren made a disability pension claim under the VE Act. In the claim form, his disability was described as “stress”, “depression” and “anxiety”. One of the symptoms was said to be “alcoholism”. He claimed to have been diagnosed as suffering from war-caused PTSD and major depression – conditions that were said to have had their origin in Mr Warren’s service in South Vietnam. A delegate of the Commission determined that neither PTSD nor AD were “related to Mr Warren’s operational service”. That determination was affirmed by the Veterans’ Review Board. It was the Board’s decision that gave rise to Mr Warren’s application to the Tribunal.LEGISLATIVE FRAMEWORK Section 13(1) of the VE Act provides, relevantly, that where a veteran has become incapacitated from a war-caused disease, the Commonwealth is, subject to the VE Act, liable to pay a pension by way of compensation to the veteran in accordance with the VE Act. Section 5D of the VE Act defines “disease” to mean, relevantly, any mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). Section 9(1) of the VE Act provides, relevantly, that subject to ss 9 and 9A, for the purposes of the VE Act a disease contracted by a veteran is to be taken to be war-caused if:(a) the … disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; (b)the … disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran. Sections 120 and 120A of the VE Act provide a method and standard of proof for determining whether there is a link between a disease and a veteran’s service, that is to say, whether a disease was war-caused. Subsection 120(1) provides:(1)Where a claim under Part II for a pension in respect of the incapacity from … disease of a veteran, … relates to the operational service rendered by the veteran, the Commission shall determine that … the disease was a war-caused disease … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Subsection 120(3) provides:(3)In applying subsection (1) … in respect of the incapacity of a person from ... disease ... related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:…(b)that the disease was a war-caused disease…; or…as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the ... disease ... with the circumstances of the particular service rendered by the person.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
LINDGREN, BENNETT AND LOGAN JJ
For the reasons already given, the Tribunal was not required to consider independently whether the concession of fact in relation to AD was properly made. It was not obliged independently to consider the timing of the clinical onset of PTSD relative to the AD, or whether cl 5(a) was satisfied, before determining that Mr Warren’s AD was war-caused.CONCLUSION For the above reasons, the application should be dismissed. The appellant is to pay the respondent’s costs. I agree that this appeal should be dismissed with costs. I had reached this view before having the advantage of reading in draft the reasons for judgement of Lindgren and Bennett JJ. I respectfully agree with their analysis of the course of proceedings before the Administrative Appeals Tribunal (“the Tribunal”), with their analysis of relevant case law and with their conclusion that a concession was made upon which the Tribunal was entitled to act in reaching its decision. An additional reason for the conclusion as to the extent of the concession made by the Repatriation Commission is offered by regard to the Statement of Facts and Contentions (“Statements”) lodged with the Tribunal and served inter partes prior to the commencement of the hearing in accordance with the Tribunal’s General Practice Direction. These Statements formed the background against which each party conducted its case and interchanged with the Tribunal in the course of the hearing. The Statement lodged on behalf of Mr Warren affirmed that the claimed conditions were post traumatic stress disorder and alcohol abuse/dependence. It identified the issues for the Tribunal as follows:(a)what condition(s), if any does Mr Warren currently suffer from; and(b)whether such conditions are war-caused within the meaning of s. 9 of the VEA? Mr Warren’s Statement further identified the relevant Statement of Principles (“SoP”) to be:(a)Instrument No. 3 of 1999 – Post traumatic stress disorder (PTSD) “(factor 5(a))”;(b)Instrument No. 76 of 1998 –Alcohol abuse/dependence “(factors 5(a) and (b))” [emphasis added] The bold “factors” which I have emphasised in the passages quoted from Mr Warren’s Statement were added parenthetically by that document’s author after the SoP references. They were obviously intended to highlight particular paragraphs of the SoP which Mr Warren apprehended were controversial. Mr Warren’s Statement further identified five “stressors” which were alleged to have occurred during the course of his war service in South Vietnam. Only two of these ultimately came to have prominence in the Tribunal’s determination of the review application. He then propounded the following hypothesis in his Statement:10. The Applicant’s hypothesis is that he witnessed, experienced or confronted events which he says involved a death or the threat of death or serious injury to either himself or others and which ultimately rise to the condition of post traumatic stress disorder. Alternatively, the said events caused the Applicant to experience substantial distress and in the following months (and in any event within 2 years of the said events) experienced a range of symptoms consistent with anxiety disorder. In addition the Applicant commenced consuming significant quantities of alcohol and in the following months (and in any event within 2 years of the said events) became dependant upon, or abused, alcohol.