Summers v Repatriation Commission

Case [2012] FCAFC 104

FEDERAL COURT OF AUSTRALIA

Summers v Repatriation Commission [2012] FCAFC 104

Citation: Summers v Repatriation Commission [2012] FCAFC 104
Appeal from: Summers v Repatriation Commission (includes Corrigendum dated 9 January 2012) [2011] FCA 1451
Parties: RONALD JAMES SUMMERS  v REPATRIATION COMMISSION
File number: VID 1335 of 2011
Judges: GILMOUR, PERRAM & JAGOT JJ
Date of judgment: 31 July 2012
Catchwords: DEFENCE AND WAR – Veterans’ entitlements – special rate pension – whether case of post-traumatic stress disorder pursued before Tribunal – whether Tribunal’s treatment of alcohol dependence erroneous – consideration of diagnostic criteria for alcohol dependence
Legislation:

Veterans’ Entitlements Act 1986 (Cth) ss 5D, 13, 24, 120, 120B, 196B

Statement of Principles Concerning Alcohol Dependence and Alcohol Abuse (SoP No 1 of 2009)
Statement of Principles Concerning Alcohol Dependence and Alcohol Abuse (SoP No 17 of 2008)
Statement of Principles Concerning Post Traumatic Stress Disorder (SoP No 5 of 2008)

Cases cited:

Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321; [2003] FCAFC 232 cited
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 cited
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26 followed
Fogarty v Repatriation Commission (2003) 37 AAR 363; [2003] FCAFC 136 followed
Grant v Repatriation Commission (1999) 57 ALD 1; [1999] FCA 1629 cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 followed
Plaintiff M61/2010E v Commonwealth (2010 243 CLR 319; [2010] HCA 41 followed
Repatriation Commission v Gorton (2001) 110 FCR 321; [2001] FCA 1194 cited
Repatriation Commission v Stoddart (2003) 134 FCR 392; [2003] FCAFC 300 followed
Summers v Repatriation Commission [2010] AATA 803 reversed
Summers v Repatriation Commission [2011] FCA 1451 reversed
Woodward v Repatriation Commission (2003) 131 FCR 473; [2003] FCAFC 160 followed

Diagnostic and Statistical Manual of Mental Disorders (4th Ed, Text Revision)

Date of hearing: 1 May 2012
Date of last submissions: 23 May 2012
Place: Sydney (Heard in Melbourne)
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 79
Counsel for the Appellant: Mr D De Marchi of De Marchi & Associates
Counsel for the Respondent: Ms S Maharaj QC and Ms C Dowsett
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1335 of 2011
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

RONALD JAMES SUMMERS
Appellant
AND:

REPATRIATION COMMISSION
Respondent

JUDGES:

GILMOUR, PERRAM & JAGOT JJ

DATE OF ORDER:

31 JULY 2012

WHERE MADE:

SYDNEY (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The orders of North J of 8 November 2011 be set aside and in lieu thereof it be ordered that:

1.The order of the Tribunal dated 20 October 2010 affirming the decisions of the Veterans Review Board of 21 April 2009 in applications V07/0174 and V08/0307 be set aside.

2.The matter be remitted to the Tribunal for determination according to law.

3.There be no…

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AGLC
Summers v Repatriation Commission [2012] FCAFC 104
Case
[2012] FCAFC 104
Decision Date

CaseChat Overview and Summary

The appellant, Summers, appealed against a decision of the Full Federal Court concerning his eligibility for a special rate pension. The respondent, Repatriation Commission, was the body responsible for adjudicating on Summers' claim. The dispute centred around whether Summers' case of post-traumatic stress disorder was properly pursued before the Veterans' Review Board and the Tribunal, and if the Tribunal had erred in its treatment of Summers' alcohol dependence. In particular, the court had to consider whether the Tribunal correctly applied the diagnostic criteria for alcohol dependence in its assessment of Summers' claim.

The central legal issue was whether the Tribunal's handling of Summers' alcohol dependence was flawed, and if this error impacted the overall assessment of his eligibility for a special rate pension. The court had to examine the Tribunal's application of the diagnostic criteria for alcohol dependence and determine if this was consistent with the relevant medical standards and guidelines. Additionally, the court considered whether the Tribunal's failure to adequately address Summers' post-traumatic stress disorder constituted a material error that warranted setting aside the Tribunal's decision.

The Full Federal Court found that the Tribunal had indeed erred in its treatment of Summers' alcohol dependence, as it had not correctly applied the diagnostic criteria. The court held that this error was material and affected the outcome of the case. Consequently, the appeal was allowed, and the orders of the Tribunal were set aside. The matter was remitted to the Tribunal for re-determination according to law, with no orders as to costs at the trial or appeal level.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders of North J of 8 November 2011 be set aside and in lieu thereof it be ordered that:

1. The order of the Tribunal dated 20 October 2010 affirming the decisions of the Veterans Review Board of 21 April 2009 in applications V07/0174 and V08/0307 be set aside.

2. The matter be remitted to the Tribunal for determination according to law.

3. There be no order as to costs of the trial.

3. There be no order as to the costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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