FEDERAL COURT OF AUSTRALIA
Summers v Repatriation Commission [2011] FCA 1451
Citation: Summers v Repatriation Commission [2011] FCA 1451 Appeal from: Summers v Repatriation Commission [2010] AATA 803 Parties: RONALD JOHN SUMMERS v REPATRIATION COMMISSION File number: VID 977 of 2010 Judge: NORTH J Date of judgment: 8 November 2011 Corrigendum: 9 January 2012 Date of hearing: 8 November 2011 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 34 Solicitor for the Applicant: Mr D De Marchi of De Marchi & Associates Counsel for the Respondent: Ms C Dowsett Solicitor for the Respondent: Australian Government Solicitor FEDERAL COURT OF AUSTRALIA
Summers v Repatriation Commission [2011] FCA 1451
CORRIGENDUM
1.After [32] in the Reasons for Judgment, insert the following paragraph:
33The fifth complaint is that the Tribunal failed to identify the death of the applicant’s father as a reasonable hypothesis to link the applicant’s service to his alcohol dependence. The basis upon which the Tribunal dealt with this contention depended on the terms of the relevant Statement of Principles. The reason why the notification of the death could not provide a reasonable hypothesis was derived from the terms of paragraph 6(d) of the relevant Statement of Principles which require that the experience of the death of a significant other precede the clinical onset of alcohol dependence or alcohol abuse. The Tribunal found as a fact that the applicant’s alcohol dependence commenced in Vietnam when he was operating the Other Ranks canteen. The death of the applicant’s father occurred a number of months afterwards. It was therefore impossible for the reasonable hypothesis to be established upon those facts.
2.Paragraph 33 in the Reasons for Judgment becomes [34].
3.Paragraph 34 in the Reasons for Judgment becomes [35].
I certify that the preceding three (3) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 9 January 2012
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 977 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: RONALD JOHN SUMMERS
ApplicantAND: REPATRIATION COMMISSION
Respondent
JUDGE:
NORTH J
DATE OF ORDER:
8 NOVEMBER 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The appeal is dismissed.
2. The applicant pay the respondent’s costs of the appeal.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 977 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: RONALD JOHN SUMMERS
ApplicantAND: REPATRIATION COMMISSION
Respondent
JUDGE:
NORTH J
DATE:
8 NOVEMBER 2011
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION
Before the Court is an appeal from a decision of the Administrative Appeals Tribunal dated 20 October 2010. The Tribunal affirmed a decision of the Veterans’ Review Board, which in turn affirmed a decision of the Repatriation Commission, the respondent. The appeal is brought under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), which allows a party to appeal…
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- AGLC
- Summers v Repatriation Commission [2011] FCA 1451
- Case
- [2011] FCA 1451
- Decision Date
CaseChat Overview and Summary
The Court considered the evidence provided by the applicant and four psychiatrists. The Tribunal had given particular weight to the investigating officer’s report which provided an objective account of the Watson’s Bay incident, contrasting with the applicant’s and the psychiatrists' testimonies. The Tribunal found that there was insufficient evidence to substantiate a diagnosis of PTSD due to the lack of a clear recollection of the traumatic event by the applicant and the medical evidence which did not align with a PTSD diagnosis. Regarding the alcohol dependence, the Tribunal found that there was no evidence that the applicant’s father's death had aggravated his alcohol dependence.
The Court upheld the Tribunal's findings, noting that the Tribunal had followed a rational approach in evaluating the evidence. The Court concluded that the Tribunal's decision was reasonable and not so unreasonable that no reasonable Tribunal could have arrived at it. Consequently, the appeal was dismissed, and the applicant was ordered to pay the respondent's costs.
Orders
Orders of the court
1. The appeal is dismissed.
2. The applicant pay the respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Finally, it is argued that the notification of the applicant’s father’s death had an aggravating effect on the alcohol dependence. This was a factor, so it was argued, that the Tribunal did not consider. At [36] of the written submissions, the argument was put thus:Equally, the Tribunal did not consider the possibility that the fact of this occurrence aggravated the Applicant’s alcohol dependence or abuse, such aggravation occurring after the veteran was informed of the fact of his father’s death. This precluded it from finding that the Applicant suffered from war-caused alcohol abuse. CONSIDERATION The first complaint, namely, that the Tribunal came to a decision which was so unreasonable that a reasonable Tribunal could not have arrived at it, has not been made out. The hurdle for establishing such a ground is high. In [22] and [23], which have been set out, the Tribunal set out the evidence relevant to the question whether the applicant suffered PTSD as a result of the Watson’s Bay incident. It analysed the evidence obtained from the applicant and from the four psychiatrists who had given evidence: Dr Pomorin, Dr Strauss, Dr Velakoulis and Dr Debenham. Between [13] to [16] of its decision, the Tribunal summarised the evidence of each of those psychiatrists. The Tribunal referred to the report of Dr Pomorin, and to his statement that Mr Summers did not experience any emotionally traumatic event during his period of service, and there was no history of re-experiencing symptoms, anxiety or depressive illness. The Tribunal then referred to reports of Dr Strauss in which he stated that Mr Summers did not have a diagnosable PTSD as there was insufficient reliable information to substantiate the claim of risk of death or serious injury. The Tribunal continued: Dr Strauss noted that Mr Summers was unable to remember the alleged assault and being thrown over the cliff because he was unconscious when found, although Dr Strauss said that Mr Summers had claimed to dream about the incident, despite having a vague recollection of the events and no memory of the actual assault. Dr Strauss concluded that there was no psychological impairment arising from the alleged assault. The Tribunal subsequently dealt with the report of Dr Velakoulis who was Mr Summers’ treating psychiatrist for just over a year. Importantly, the Tribunal observed that Mr Velakoulis made no mention of the Watson’s Bay event. The Tribunal further observed that Dr Velakoulis also agreed that in respect of the Watson’s Bay event, conscious recall is normally required before a diagnosis of PTSD may be made, but acknowledged that he is not an expert in this field. The Tribunal then referred to the very short report of Dr Debenham, another consultant psychiatrist, who simply asserted in his report that the applicant was suffering from service related PTSD. The Tribunal noted that Dr Debenham gave no reasons. The Tribunal made an assessment of this medical evidence in [22] and [23]. Clearly there was some contention between the views expressed by the doctors. The Tribunal took a rational approach by looking to the only objective report of the incident which was by the investigating officer shortly after the event.