Veterans' Review Board
Home | About the VRB | Contact us | Members and Staff | Publications | Factsheets | ADR trial | Links | Notices | Vacancies | Site map
No.10 November 2009

Cunningham v Repatriation Commission

[2009] FCA 1272

COURT Federal Court, Melbourne
JUDGE Sundberg J
DECISION Appeal allowed
ISSUES SoP for depressive disorder – experiencing a severe psychosocial stressor – severe seasickness on operational service  - disposition to sea sickness preceded operational service


Mr Cunningham appealed from the decision of the Federal Magistrates Court, which dismissed an appeal from the decision of the Tribunal. The Tribunal had affirmed the Commission’s decision that Mr Cunningham’s depressive disorder was not war related.

Grounds of appeal

Counsel for Mr Cunningham contended that the Tribunal’s reasons revealed two questions of law:

The Commission argued that the Tribunal erred in law in finding or assuming that the appellant experienced a severe psychosocial stressor

The Court’s Consideration

First ground – the section 196B Question

Justice Sundberg was not satisfied that the Tribunal had properly considered section 196B(14) of the VEA.  His Honour noted that it was necessary for the Tribunal to go through the ‘related to service’ exercise in section 196B(14) and said:

I am not satisfied that the Tribunal’s use of the expressions “not attributable to operational service” and “the cause of the seasickness” shows that it properly considered s 196B(14). The subsection is broader than “attributable” in par (b) and “cause” in par (f). Paragraph (a) was potentially applicable. It could be that the appellant’s seasickness resulted from an occurrence (rough seas) on the way to Vietnam. The Tribunal did not consider whether the appellant’s pre-existing disposition to seasickness was aggravated by his service (par (d)). Nor did it consider whether the seasickness “arose out of” his operational service (par (b)). In Roncevich v  Repatriation  Commission [2005] HCA 40; (2005) 222 CLR 115 at [27], in considering a provision in the same terms as s 169B(14)(b), the Court said the use disjunctively of the expressions “arose out of” and “attributable” manifests an intention to give “defence-caused” a broad meaning. What was there said in relation to the expression “defence-caused injury” is applicable to “injury ... related to service” in s 196B(14).

Second ground – pre-existing condition

Justice Sundberg considered that in relation to this ground of appeal, the Tribunal had made an error of law by asking itself the wrong question. His Honour considered that the Tribunal should have directed itself to the various “related to service” elements of s 196B(14) in order to determine whether the seasickness was related to his operational service.  Further, his Honour said:

… I am unable to see why the pre-operational severe seasickness should foreclose the possibility that a later occurrence of seasickness on operational service would be a stressor that was related to service within s 196B. To take subs (14)(b) as an example, it would in my view be open to the Tribunal to find that the appellant’s seasickness on the voyages to Vietnam arose out of, or was attributable to, that operational service notwithstanding that he had earlier suffered from seasickness when engaged in non-operational service.

The Commission’s contention -  severe psychosocial stressor

Before the Federal Magistrate, the Commission had argued that there was no evidence before the Tribunal that seasickness was a severe illness and therefore an occurrence, which, of its nature was an identifiable occurrence that evoked feelings of substantial distress in an individual.

Justice Sundberg noted that the Tribunal did not expressly address whether the appellant’s seasickness was an identifiable occurrence that evoked feelings of substantial distress in an individual. His Honour went onto note that the Tribunal had evidence before it of Dr Strauss, and that he agreed with the Magistrate’s interpretation that Dr Strauss’ report evinced or was at least open to the interpretation that “he regarded these matters both objectively and as they affected Mr Cunningham individually.”

In Justice Sundberg’s view, that evidence

…satisfies the requirements that the seasickness suffered by the appellant was objectively an occurrence the nature of which is such to evoke feelings of substantial distress.

Finally, his Honour concluded that the findings of fact made by the Magistrate were open to him on the evidence.

Formal decision

The appeal was allowed and the orders of the Magistrate dismissing the appeal were set aside and the matter was remitted to the Tribunal for determination in accordance with the Court’s reasons.

Further reading:

All Practice Notes