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Dennis Hogno v Repatriation Commission

COURT Federal Court, Sydney
JUDGE FLICK J
DATE OF DECISION 25 February 2010
DECISION The Amended Notice of Appeal as filed on 13 July 2010 is dismissed
ISSUES  

Facts

The claim

Mr Hogno served in the Australian Army from May 1958 until May 1966.  He served at Butterworth in Malaya from 14 January to 20 October 1965
The matter before the Federal Court concerned his claim for disability pension lodged on 25 June 2004 contending that, amongst other things, emotional disorder and substance abuse/alcohol were related to his eligible service.
The Tribunal accepted that Mr Hogno suffered from anxiety disorder which was related to episodes of his military service in Malaya, rejected his contention that his alcohol dependence (in remission) was related to his eligible service; and continued his pension at 100% of the General Rate.

Grounds of appeal

The thrust of the veteran’s appeal was:

  1. Whether the Tribunal had applied the provisions of s 120(1) correctly; and
  2. whether the Tribunal must consider section 24(2)(b) in all cases when determining whether a claimant is entitled to payment of disability pension under the Act at the Special Rate provided by section 24 of the Act.

ISSUE:

Alcohol dependence

The Applicant submitted that the Tribunal using phrases such as “we are satisfied”; ‘the weight of the evidence is” failed to properly apply the “reasonable doubt test”. By this it meant that the Tribunal had not applied sections 120(1) and (3) properly. The Applicant also submitted that an alcohol questionnaire completed by him in 2001 should not have been relied on in determining whether or not his alcohol dependence was related to his eligible service.

The Court’s consideration

Alcohol Dependence

The Court rejected the submission relating to the correct application of section 120(1) of the Act.

It said that the Tribunal had properly applied the provisions of section 120 of the Act by applying the steps in Deledio.
The Court drew attention to the fact that

The Court rejected the submission relating to the alcohol questionnaire completed by the Applicant in 2001.  It said that the questionnaire “was evidence as to the reasons advanced by Mr Hogno for a change in his alcohol consumption......This together with …other evidence (provided by Mr Hogno) led it to conclude that the alcohol dependence was not war-caused.”

SPECIAL RATE PENSION

The Tribunal found that the veteran did not cease to engage in remunerative employment because of his anxiety disorder alone. That a number of business possibilities did not eventuate was attributable to a range of factors other than his anxiety disorder.
The veteran submitted that the Tribunal had not properly considered and applied section 24 of the Act. In that the Tribunal did not address the issues raised by section 24(2) (b) –whether or not the substantial cause of his inability to obtain remunerative employment was due to his accepted disabilities alone.
The Tribunal findings on the issue raised by 24(2)(a) were made out in para 45 of the reasons for judgment:

45   The principal conclusions of the Tribunal are relevantly as follows:

[64] Section 24 (2) relevantly provides that, for the purposes of s 24(1)(c), a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both.

[65] Mr Hogno had been engaged for many years in what might broadly be described as administrative work. He also had accountancy skills which he hoped to use. We accept that he found accounts payable work stressful and that there were other stressors at home and driving to work but they are the kind of stresses that lead many people to seek a change of lifestyle. The evidence is that he intended to keep working and to use those skills, but in a less stressful occupation.

[66] We find that Mr Hogno did not cease to engage in remunerative employment because of his anxiety disorder alone. That a number of business possibilities did not eventuate was attributable to a range of factors other than his anxiety disorder.

[67] We note, for completeness, that even if we are wrong about Mr Hogno’s alcohol dependence and it is a war-caused condition, the evidence is that he had all but stopped drinking by the time he ceased employment. There is no evidence to suggest that alcohol played any part in the reason he ceased employment or has not worked since.”

The Court observed at para 46:

46           It may be accepted that the reasons and findings provided by the Tribunal are less than fulsome. But such reasons and findings as are provided by the Tribunal must necessarily be considered by reference to the conclusions previously reached and in the factual context presented to the Tribunal and the submissions in fact advanced for resolution. 

The Commission submitted that for the purposes of s 24(2)(b) the evidence fell far short of establishing that Mr Hogno “was genuinely seeking to engage in remunerative work…and there was no evidence to show that ”incapacity was the substantial cause of his inability to obtain remunerative work in which to engage.”
The Court found that it was unnecessary to make findings on this submission, even though it harboured some doubt as to it was totally correct.

The Court said at para 51:

“Care must be taken by this Court when entertaining an appeal from the Tribunal to not itself review the evidence available to the Tribunal and to not itself consider whether findings of fact were open to the Tribunal to be made.…Where a factual issue has not been fully explored before the Tribunal, care must be exercised before this Court invokes the power conferred by s 44(7) to make additional findings of fact.…”

The Court said, at para 53:

“…reservation is nevertheless expressed as to whether the Respondent was correct in submitting that the evidence fell far short of Mr Hogno genuinely seeking employment…”.  The court went on to say that it held less reservation about the “submission that there was no evidence to show that Mr Hogno’s incapacity that was the substantial cause of his inability to obtain remunerative work. For the purposes of s 24(2)(b).”

The court then went on to make the point at para 54 that “no submission (or no substantial submission), it would appear, was directed to whether any incapacity was “the substantial cause” of his inability to engage in remunerative work. It is difficult to conclude that any question of law for the purposes of s 44(1) of  the Administrative Appeals Tribunal Act 1975 (Cth) arises where the Tribunal does not resolve a submission which was not advanced and where any such submission would seem to be not open to be advanced on the evidence available.

Formal decision

1. The Amened notice of appeal as filed on 13 July 2010 is dismissed.

2. The Applicant is to pay the costs of the Respondent

Editorial Note

This judgment of the Federal Court re-emphasises the primacy of determining entitlement issues by applying the process instituted in the well known Deledio judgment.
It also emphasises that decision-makers are not limited to referring to material raised only after the claim or application has been lodged with the Commission. Decision-makers can refer to relevant material raised prior to the claim being lodged.
In this case the relevant material was an alcohol questionnaire and was used in order to ascertain the weight of the applicant’s contentions on alcohol for the purposes of the present claim.

All Practice Notes