VETERAN’S ENTITLEMENTS – Statement of Principles – whether accrued right to have entitlement determined by SoP in force at time of application as well as SoP in force at time of Repatriation Commission decision.
VETERAN’S ENTITLEMENTS – Statement of Principles – expression “experienced a severe stressor in SoP” – whether “threat” of death or serious injury can exist only where the perceived threat was objectively real i.e. based on events happening or about to happen with real risk of death or serious injury – whether perception of risk of death or serious injury based on real events which a person with the claimant’s knowledge and in the claimant’s circumstances would reasonably understand to involve a threat of death or serious injury could amount to a “threat” of death or serious injury under the SoP.
1.The decision of the Administrative Appeals Tribunal given on 11 September 2002 is set aside.
2.The claims for benefits under the Veterans’ Entitlements Act 1986 (Cth) made by the applicant be remitted to the Administrative Appeals Tribunal for further consideration or for reconsideration.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 232 OF 2002
BETWEEN:
LESLIE STODDART APPLICANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGE:
MANSFIELD J
DATE:
17 APRIL 2003
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
INTRODUCTION
The questions on this application are:
(1)whether the applicant was entitled to have his application for pension benefits under the Veterans’ Entitlements Act 1986 (the VE Act) in respect of incapacity from the conditions of post traumatic stress disorder (PTSD) and alcoholic liver damage (ALD) determined by applying the Statement…
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
AGLC
Stoddart v Repatriation Commission [2003] FCA 334
Case
[2003] FCA 334
Decision Date
CaseChat Overview and Summary
The case of Stoddart v Repatriation Commission concerns the determination of the applicable Statements of Principles (SoP) for assessing the entitlements of a veteran under the Veterans’ Entitlements Act 1986 (Cth). The veteran, Stoddart, was seeking benefits for conditions of alcoholic liver disease (ALD) and post-traumatic stress disorder (PTSD). The dispute centred on whether the Tribunal should apply the SoP in force at the time of its decision or those in force at the time the veteran made his claim. The case was heard by the Federal Court of Australia.
The central legal issue was the correct SoP to apply in determining the veteran's entitlement to benefits for his conditions. Specifically, the Court needed to decide whether the SoP in force at the time of the Tribunal’s decision or those in force at the time the veteran applied for pension should be applied. The Court also needed to determine if there was an "accrued right" under the earlier SoP, as decided in the case of Repatriation Commission v Gorton.
The Court found that the Tribunal had applied the SoP in force at the time of its decision, following the decision in Gorton. This approach was contrary to the Full Court's earlier decision in Repatriation Commission v Keeley, which established that a claimant has an accrued right to have their claim reviewed under the SoP in force at the time of the Commission’s decision. The Court held that the Tribunal should have considered the SoP in force at the time of the veteran's claim, as they were more favourable to the veteran. Consequently, the decision of the Tribunal was set aside, and the matter was remitted to the Tribunal for further consideration.
ORDERS:
1. The decision of the Administrative Appeals Tribunal given on 11 September 2002 is set aside.
2. The claims for benefits under the Veterans’ Entitlements Act 1986 (Cth) made by the applicant be remitted to the Administrative Appeals Tribunal for further consideration or for reconsideration.
Orders
Orders of the court
1. The decision of the Administrative Appeals Tribunal given on 11 September 2002 is set aside.
2. The claims for benefits under the Veterans’ Entitlements Act 1986 (Cth) made by the applicant be remitted to the Administrative Appeals Tribunal for further consideration or for reconsideration.
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
MANSFIELD J
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
MANSFIELD J
There is no issue between the parties to this point.CONSIDERATION OF THE FIRST QUESTION The first issue arises as to which SoP the Tribunal was required to address. There is no SoP for ALD, but the Tribunal considered that the condition of alcoholic liver damage is caused by alcohol abuse, and the chain of causation leads back then to that condition for which there is a SoP. It identified the appropriate SoP as that for “alcohol dependence or alcohol abuse”: see McKenna v Repatriation Commission [1999] FCA 323. The parties are agreed that that was an appropriate step for the Tribunal to take. It is the identification of the relevant SoP for alcohol dependence or alcohol abuse which is in issue. At the time of the Tribunal’s decision, and at the time of the Commission’s decision, the SoP for Alcohol Dependence or Alcohol Abuse was Instrument No.76 of 1998 (the 1998 Alcohol Abuse SoP). It revoked, and was in substitution for, Instrument No.5 of 1994 Statement of Principles concerning Psychoactive Substance Abuse or Dependence (the 1994 Alcohol Abuse SoP). The 1994 Alcohol Abuse SoP was in force at the time the applicant applied for pension for incapacity in respect of ALD, namely on 17 July 1998, and is more favourable to the applicant. The Tribunal said it followed the decision in Repatriation Commission v Gorton (2001) 110 FCR 321; [2001] FCA 1194 (Gorton). It decided that the SoP in force at the time of its decision and at the time of the Commission’s decision, namely the 1998 Alcohol Abuse SoP, was the one against which it should measure or determine the applicant’s entitlement. In relation to the condition of PTSD, the SoP concerning Post Traumatic Stress Disorder in force at the time of the Tribunal’s decision and at the time of the Commission’s decision was Instrument No.3 of 1999 as amended by Instrument No.54 of 1999 (the 1999 PTSD SoP). The applicant contended before the Tribunal that the SoP in force at the time he made his claim, namely 17 July 1998, should be the one against which his entitlement was determined. That was the SoP concerning Post Traumatic Stress Disorder in Instrument No.15 of 1994 (the 1994 PTSD SoP). It also was more favourable to the applicant than the 1999 PTSD SoP. Again the Tribunal made its determination by reference to the 1999 PTSD SoP based upon Gorton. In Gorton, the Full Court (Heerey, Emmett and Allsop JJ) determined that, in performing its function of review, the Tribunal should first approach the question of entitlement to a pension under the VE Act by reference to the SoP in force at the time of its decision. If it determined by reference to that SoP that there was no entitlement to a pension, only then should it consider whether, by virtue of an SoP in force at the time of the Commission’s decision (or perhaps at the time of the application) there was an “accrued right” which was preserved under that earlier SoP to have the claim determined also by reference to that earlier SoP. In the earlier decision of the Full Court in Repatriation Commission v Keeley (2000) 98 FCR 108; [2000] FCA 532 (Keeley) the Full Court decided that a claimant is entitled to an accrued right to have his or her claim considered and reviewed by the Tribunal on the basis of the SoP current at the time of the Commission’s decision, despite the later revocation of that earlier SoP. As explained in Gorton, it is only necessary to have regard to any such accrued right if the Tribunal, applying the SoP current at the date of its review, is of the view that the claim should be refused.