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No4. May 2010

Border v Repatriation Commission

[2010] FCA 264

COURT Federal Court, Brisbane
JUDGE Reeves J
DATE OF DECISION 23 March 2010
DECISION Strike out motion dismissed
Appellant given leave to amend his notice of appeal
ISSUES Whether there is a real question of law,and one that is sufficiently strong to warrant a full hearing.
SoP for Post Traumatic Stress Disorder (PTSD)
– application of the Deledio steps 


The claim

Mr Border served in the Australian Army from 20 March 1967 to 20 March 1987 with “operational service” in Vietnam from 13 April to 28 October 1971, and “defence service” from 7 December 1972 until 20 March 1987. Mr Border’s claim was that his PTSD was due to certain events during his operational service in Vietnam.

Mr Border relied on four events which he contended individually or together caused his PTSD. The events were: being bitten by a scorpion; being told that he risked being shot when he turned on a torch; humiliation by a Sergeant shouting that he was mishandling rockets; and being absent overnight when his unit moved from Nui Dat to Vung Tau.

The Tribunal

The issue at the Tribunal was whether a reasonable hypothesis was raised satisfying factor 6(a) in SoP No 5 of 2008 for PTSD. The SoP provides:

6.   The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting posttraumatic stress disorder or death from posttraumatic stress disorder with the circumstances of a person’s relevant service is:
(a)      experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or …

9.    For the purposes of this Statement of Principles:
"a category 1A stressor" means one or more of the following severe traumatic events:
(a)      experiencing a life-threatening event;
(b)      being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)      being threatened with a weapon, being held captive, being kidnapped, or being tortured;

Tribunal Senior Member K S Levy RFD noted that the meaning of “life threatening event” is not defined in SoP No 5 of 2008, and he referred to the examples of a category 1A stressor to assess whether the hypothesis in relation to each event was of the magnitude necessary for it to satisfy SoP factor.

The Senior Member noted the 4 step process enunciated by the Full Federal Court in Repatriation Commission v Deledio [1998] FCA 391. Step 1: He identified the four hypotheses said to relate the applicant’s service with his PTSD. Step 2: He identified the relevant SoP. Step 3: In order to decide if the material “points to” a reasonable hypothesis he discussed each of the alleged stressful events, concluding that none of them could be assessed as “life threatening”. He concluded that the incidents were a “mere possibility” and “not tenable”. Step 3 was, therefore, not satisfied.

Grounds of appeal

Mr Border filed an appeal against the Tribunal’s decision in the Federal Court. In response the Commission filed a notice of motion to strike out the appeal, on the basis that it did not identify a question of law.

The issue to be determined on both notices of motion was whether Mr Border had identified a proper question of law arising out of the Tribunal’s decision..

The Court’s Consideration

The strike out application

Regarding the strike out application, Justice Reeves considered relevant precedents and concluded that his task was to identify if there was a real question of law taking a broad view of the grounds relied on, the orders sought, and the circumstances of the particular case. In relation to the prospect of success, his task was to determine whether the question of law was strong enough to warrant a hearing. Both questions were answered in the affirmative.

The Deledio steps

In relation to Deledio step 3 Justice Reeves noted the Tribunal’s terminology where it said: “the evidence must point to the criteria in the SoP” and the level of detail in which it considered each event. Also noted was the acknowledgement that: “There is a hypothesis raised between the facts presented by the applicant and his military service”.

Reeves J concluded: “I consider there is a real question about whether the Tribunal did, in fact, engage in a fact finding exercise when it was assessing whether Mr Border’s hypothesis was reasonably consistent with the template in the SoP, contrary to the Full Court’s decision in Deledio”.

Formal decision

The respondent’s notice of motion to strike out the appeal was dismissed, and the appellant was given leave to amend his notice of appeal.

Editorial note

When the case is heard the Court will be considering what is meant by “consistent with the template in the SoP”

A further practice note will be provided when the Court makes its decision.

All Practice Notes