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Repatriation Commission v Malady

[2010] FCA 798

COURT Federal Court, Melbourne
JUDGE Tracey J
DECISION Appeal allowed
ISSUES causal connection between depressive disorder, alcohol abuse and drug abuse and operational service – no reasonable hypothesis connecting borderline personality disorder to operational service

Facts

Mr Malady enlisted in the Australian Army in 1998 and was in posted to East Timor in 1999. Five days after arriving in East Timor, Mr Malady was evacuated to Darwin suffering from dysentery. He did not return to East Timor and in 2000 he was discharged from the Army on medical grounds. In the period between his return to Australia and his discharge, Mr Malady was treated successfully for dysentery and also emotional disorders which were diagnosed as post-traumatic stress disorder (“PTSD”) and major depression.

Mr Malady applied for disability pension for “major depression”. He claimed that, during his period of service in East Timor, he experienced the following events:

His claim was treated by a delegate of the Commission as a claim for “major depression, alcohol abuse and drug abuse” and it was refused. The Board affirmed the Commission’s decision and Mr Malady applied to the Tribunal for review. The Tribunal set aside the Commission’s decision and substituted its own decision that Mr Malady’s major depressive disorder, alcohol dependence or abuse and drug dependence or abuse were war-caused.  The Commission appealed and the Federal Magistrates Court allowed the appeal and set aside the Tribunal’s decision remitting it back. The Tribunal, differently constituted, decided that Mr Malady suffered from major depressive disorder, alcohol abuse, and drug abuse, and that those conditions were war-caused. The Commission then lodged its appeal to the Federal Court. 

The Commission’s position 

The Commission contended that the principal error of law made by the Tribunal was that it had relied upon Borderline personality disorder (“BPD”), which was not war-caused, to link Mr Malady’s alcohol and drug abuse with operational service.

Mr Malady’s position 

Mr Malady accepted that the Tribunal erred in this way, and that if a question of law had properly been raised, the Court should set aside the Tribunal’s decision and remit the matter.

Questions of law raised on appeal 

Justice Tracey noted that the central question raised by the appeal was whether the Tribunal could rely on a condition, which it had found not to be war-caused, to connect Mr Malady ’s depressive disorder, alcohol and drug abuse to his war service. More specifically, the issue was whether the Tribunal could rely on a diagnosis of BPD to connect his major depressive disorder, alcohol abuse and drug abuse to his service.

The Court’s Consideration

Justice Tracey noted that it was not in dispute that, in determining that there was a connection between Mr Malady’s alcohol and drug abuse and his operational service, the Tribunal relied on his BPD as a relevant factor. His Honour noted the chain of causation as being: alcohol and drug abuse ß psychiatric disorder (BPD) ß operational service.

In order to uphold the above hypothesis, Justice Tracey considered that it was necessary that a causal link be established between Mr Malady’s BPD and his operational service. There was, as the Tribunal itself held, no causal nexus between Mr Malady’s operational service and the BPD from which he suffered. His Honour considered that there was no SoP in force that upheld the hypothesis connecting each of Mr Malady’s claimed conditions and his operational service.

His Honour also went on to note that in dealing with Mr Malady’s claim, the Tribunal fell into error when it got to the final stage of Deledio. Having found that Mr Malady suffered from a “recurrent major depressive disorder”, the Tribunal considered the “events in East Timor”  (noted above) and said that they were a cause of his developing depression. Justice Tracey noted that these “events” could not be factors linking Mr Malady’s depressive disorder to his operational service because the Tribunal had earlier found that he had not experienced any severe traumatic stressor in East Timor. In Justice Tracey’s  opinion, the Tribunal was bound to find that Mr Malady’s psychiatric condition was not related to his operational service in East Timor in any one of the ways identified in s 196B(14) of the Veterans’ Entitlements Act 1986.

Formal decision

Justice Tracey allowed the Commission’s appeal and set aside the Tribunal’s decision. Interestingly, his Honour went onto order that it was not appropriate for the matter to be remitted back to the Tribunal and that the decisions of the Board and the Commission should be affirmed.

Editorial note

Chain of SoPs

The decision in Malady emphasises that if there is an SoP in force for a claimed condition, as well as an SoP for a condition that is said to have lead to the claimed condition, then all of the relevant SoPs must be met for a claim to succeed: McKenna v Repatriation Commission [1999] FCA 323.

In his decision, Justice Tracey also made reference to the Full Court’s decision in  Repatriation Commission v Money [2009] FCAFC 11, that the factors which must be present to connect a condition to service are those set out in the relevant SoPs. The factors must be related to the service in one or more of the ways listed in s 196B (14) of the Act. 

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