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No.13 November 2010

Paddon v Repatriation Commission

COURT Federal Court, Brisbane
DECISION Appeal dismissed
ISSUES Answers favourable on questions of law is a necessary but not sufficient basis for remittal to the AAT – concession as to “clinical onset” finding fatal with respect to remittal


Mr Paddon served in the Australian Army from 1967 to 1970 and rendered two periods of “operational service” in South Vietnam as a member of the crew of the AV Clive Steele.

Mr Paddon applied for disability pension for post traumatic stress disorder and alcohol dependence.  After adverse decisions by the Repatriation Commission and the Veteran’s Review Board, the Administrative Appeals Tribunal (Tribunal) found he was suffering from generalised anxiety disorder and depression, but affirmed the decision to refuse Mr Paddon’s pension claim.  Mr Paddon made an appeal to the Federal Court on a question of law.

Questions of law raised on appeal

The relevant Statements of Principles define “category 2 stressor” as follows:

“a category 2 stressor” means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:

  1. being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;
  2. experiencing a problem with a long-term relationship including: the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce;
  3. having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;

The questions of law were whether, in relation to the definition of “category 2 stressor”, the Tribunal had misconstrued:

  1. paragraph (c) and in particular the phrase, “having concerns in the workplace…”; and
  2. the word “chronic” in the opening part of that definition?

A further question of law was not pressed.  Instead, the applicant conceded that the Tribunal’s conclusion on clinical onset was reasonably open to it and otherwise free from any error of law.  However, the Court was required to consider the concession, and whether, as submitted by the respondent, that carried with it the necessary consequence that remission of the matter to the Tribunal was pointless, even if either or each of the questions of law was answered in the applicant’s favour.

The Court’s Consideration

Paragraph (c) and “having concerns in the workplace”

The applicant submitted that a misunderstanding of the meaning of paragraph (c) of the definition was evident in the Tribunal’s reasons, and the events which the Tribunal found were not “category 1A stressors” were also capable of falling within paragraph (c) of that definition, properly construed, so the Tribunal had erred in failing to address whether the events were “category 2(c) stressors”.

The respondent submitted that the examples of “concerns in the work or school environment” listed in paragraph (c) of the definition in the SoP limited the meaning of “concerns”. 

Justice Logan considered it was an unlikely construction to regard the inclusory examples as intended to be exhaustive of the meaning of “concerns in the work….environment”.  It seemed to Justice Logan that the Tribunal had misunderstood the meaning of the word “concerns” in the context in which it is employed in paragraph (c) of the definition of “category 2 stressor”, and the applicant’s account of a helicopter attack was well capable of falling within the meaning of “concerns in the work…environment” as that term was to be construed.  Therefore, the Tribunal’s approach to finding whether the applicant satisfied this aspect of each SoP had been tainted by an error of law.  There was also a separate error of law in the Tribunal’s failure to appreciate that the events it dismissed as “category 1A stressors”  were capable of being regarded as “category 2 stressors”, as that definition was properly construed.

Meaning of the word “chronic”

His Honour then turned to the question of whether the Tribunal had misconstrued the word “chronic” in the opening part of the definition of “category 2 stressor”.  Both parties put forward definitions from the Oxford Dictionary, and the respondent also offered a definition from a medical dictionary.  Justice Logan considered there was no material difference between the meanings.  His Honour considered the language used by the Tribunal and decided the answer must be either that the Tribunal had misconstrued the word “chronic” or, at least, had failed to give adequate reasons for why the conditions were not “chronic”.

Effect of applicant’s concession on remittal

The respondent submitted that, even if such errors of law as Justice Logan had found were present, the concession as to the adverse finding regarding “clinical onset” meant that, as a matter of discretion, there should be no remission because that was futile i.e. there was no SoP in force which upheld the hypothesis.  Each party relied upon the observations of the Full Court in Repatriation Commission v Stoddart [2003] FCAFC 300; (2003) 134 FCR 392 at [43] that “the Court should be slow to exercise its discretion to shut an applicant out of relief on the basis of futility”.  The errors of law Justice Logan had found did not intrude on the factual conclusion as to clinical onset reached by the Tribunal.  His Honour concluded that answers favourable to the applicant on questions of law was a necessary but not sufficient basis for remittal to the Tribunal, and remittal was futile as a conceded basis for the Tribunal’s affirming of the decision under review remained.

Formal decision

Justice Logan dismissed the appeal.

Editorial note

The decision in Paddon emphasises that the meaning of “concerns in the work….environment” is not limited to the included examples, and where events are dismissed as “category 1A stressors” a decision maker should also consider whether they fit into the definition of “category 2 stressors”.  Importantly, where errors of law are found, a concession may be fatal with respect to remittal.

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