Stan Kaluza and Repatriation Commission - [2013] AATA 424

[2013] AATA 424

Division GENERAL ADMINISTRATIVE DIVISION

File Number

N200600840

Re

Stan Kaluza

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Ms N Bell, Senior Member
Dr S H Toh

Date 24 June 2013

Place Sydney
The Tribunal varies the decision under review and decides that Mr Kaluza suffers from generalised anxiety disorder, alcohol dependence and hypertension, but not from post traumatic stress disorder or alcohol abuse. The Tribunal further decides that Mr Kaluza’s generalised anxiety disorder, alcohol dependence and hypertension are not war caused.
........[sgd]................................................................
Ms N Bell, Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – pension – period of operational service – whether applicant suffers from conditions – posttraumatic stress disorder – generalised anxiety disorder – anxiety disorder – alcohol dependence – alcohol abuse – hypertension – whether conditions war caused – decision under review varied.
LEGISLATION
Veterans Entitlements Act 1986 (Cth), ss 5B(1), 5B(2), 5B(2)(a), 5B(2)(c), 6C
CASES
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1

Kowalski v Military Rehabilitation and Compensation Commission [2010] FCA 408
Lees v Repatriation Commission (2002) 125 FCR 331
McKenna v Repatriation Commission (1999) 86 FCR 144
Onorato v Repatriation Commission [2011] FCA 1507
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Brady [2007] FCA 1087
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Milenz [2006] FCA 1436
Repatriation Commission v Warren [2007] FCA 866
Sloan v Repatriation Commission [2012] FCA 1079
Summers v Repatriation Commission [2012] FCAFC 104

Woodward v Repatriation Commission [2003] FCAFC 300
SECONDARY MATERIALS
Statements of Principles No. 5 of 2008 concerning Post Traumatic Stress Disorder

Statements of Principles No. 1 of 2009 concerning Alcohol Dependence and Alcohol Abuse
Statements of Principles No. 101 of 2007 concerning Anxiety Disorder
Statements of Principles No. 1 of 2000 concerning Anxiety Disorder
Statements of Principles No. 5 of 2008 concerning Post Traumatic Stress Disorder
Statements of Principles No. 1 of 2009 concerning Alcohol Dependence and Alcohol Abuse
Statements of Principles No. 101 of 2007 concerning Anxiety Disorder
Statements of Principles No. 1 of 2000 concerning Anxiety Disorder
Statements of Principles No. 1 of 2009 concerning Alcohol Dependence and Alcohol Abuse
Statements of Principles No. 76 of 1998 concerning Psychoactive Substance Abuse or Dependence
Statements of Principles No. 35 of 2003 concerning Hypertension
Statements of Principles No. 3 of 2004 concerning Hypertension

Statements of Principles No. 11 of 2008 concerning Hypertension
REASONS FOR DECISION
Ms N Bell, Senior Member
Dr S H Toh
24 June 2013

This is the third time this application has come before the Tribunal. It was first lodged in 2006. In two appeals to the Federal Court the application was remitted to the Tribunal; on the first occasion, because the Court found the Tribunal had erred in its construction of the instrument determined under section 5B(2)(c) of the Veterans’ Entitlements Act concerning Mr Kaluza’s period of operational service and, on the last occasion, because the Full Court found that the Tribunal was, among other reasons, in error when…

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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Details

Case: [2013] AATA 424
Decision Date

CaseChat Overview and Summary

Stan Kaluza brought an appeal against the Repatriation Commission in relation to his service and the conditions he suffers from, which he claims to be war caused. Kaluza claimed that he suffered from post-traumatic stress disorder and alcohol abuse, among other conditions. The Commission found that Kaluza suffered from generalised anxiety disorder, alcohol dependence and hypertension, but not from post-traumatic stress disorder or alcohol abuse, and that these conditions were not war caused.

The court was required to determine Kaluza’s operational service, the conditions from which he suffered, and whether those conditions were war caused. Kaluza had claimed to have made several flights to Vietnam from Richmond Base, but had provided inconsistent information about the number of flights he had made. Kaluza’s claim that his service was operational service in Vietnam was based on a flight in the first half of 1968, which he said was under the command of Wing Commander McKimm and was diverted to Kuala Lumpur before continuing to Vietnam as a Medivac flight returning to Butterworth.

The court found that Kaluza’s service did not constitute operational service in Vietnam because he was not allotted for duty in Vietnam by a written instrument issued by the Defence Force. The court found that Kaluza’s claims to have made several flights to Vietnam were inconsistent and unreliable, and that there was no evidence to support his claim that he was on more than two flights to Vietnam. The court also found that Kaluza’s claimed psychiatric condition was not war caused, as he had not provided sufficient evidence to establish a causal link between his service and his condition.

The court varied the decision under review and decided that Kaluza suffers from generalised anxiety disorder, alcohol dependence and hypertension, but not from post-traumatic stress disorder or alcohol abuse, and that these conditions are not war caused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It follows that Mr Kaluza’s hypertension is not war caused. DECISION The Tribunal varies the decision under review and decides that Mr Kaluza suffers from generalised anxiety disorder, alcohol dependence and hypertension, but not from post traumatic stress disorder or alcohol abuse. The Tribunal further decides that Mr Kaluza’s generalised anxiety disorder, alcohol dependence and hypertension are not war caused.

Ratio Decidendi

Legal Principle Established

The issues for us to consider are:(i)What was Mr Kaluza’s operational service?(ii)From what conditions does Mr Kaluza suffer?(iii)Are those conditions war caused?WHAT WAS MR KALUZA’S OPERATIONAL SERVICE? Mr Kaluza has contended at various times over the years, on forms, to examining doctors, in statements and in evidence to tribunals, that he was on more than two flights to Vietnam from Richmond Base. On some occasions he said he was on four flights in total. On other occasions he said he was on five or six flights. Understandably, given the passage of time, he had no memory of the specific dates of flights. However, he has recalled a flight in the first half of 1968 which was to take stores, equipment and mail to Vietnam and then repatriated wounded personnel. He has said this flight was under the command of Wing Commander McKimm, that it was diverted to Kuala Lumpur after an air pressure incident and then continued to Vietnam as a Medivac flight returning to Butterworth. He relied on events on that flight in relation to his claimed psychiatric condition. The statutory provisions that govern and define “operational service” were well summarised by the Commission in its written submissions. We adopt that summary here as follows. The expression ‘operational service’ is relevantly defined in s 6C of the Act. It provides that a veteran has rendered continuous full-time service in an operational area and was:(a) a member who was allotted for duty in that area; or(b) a member of a unit of the Defence Force that was allotted for duty in that area … The expression operational area is defined in s 5B(1) to mean “an area described in column 1 of Schedule 2 during the period specified in column 2 of Schedule 2 opposite to the description of the area in column 1.” The expression allotted for duty is relevantly addressed in s 5B(2) as follows:(2) A reference in this Act to a person, or a unit of the Defence Force, that was allotted for duty in an operational area is a reference:(a) in the case of duty that was carried out in an operational area described in item 1, 2, 3, 4, 5, 6, 7 or 8 of Schedule 2 (in column 1)--to a person, or unit of the Defence Force, that is allotted for duty in the area (whether retrospectively or otherwise) by written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act; or…(c) to a person, or unit of the Defence Force, that is, by written instrument signed by the Minister for Defence, taken to have been allotted for duty in an operational area described in item 4 or 8 in Schedule 2 (in column 1). For the purpose of s 5B(2)(a), Schedule 2, Column 1 Item 4 of the Act provides:4. Vietnam (Southern Zone) The period from and including 31 July 1962 to and including 11 January 1973. The effect of this determination is that a veteran who was not posted to a unit in Vietnam but travelled to Vietnam in the course of his duties is deemed to have been allotted for duty to Vietnam in the terms provided by the instrument.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	N200600840
Re	Stan Kaluza
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Ms N Bell, Senior Member Dr S H Toh
Date	24 June 2013
Place	Sydney