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No.14 December 2010

Kaluza v Repatriation Commission

[2010] FCA 1244

COURT Federal Court, Sydney
JUDGE Jacobson J
DECISION Appeal dismissed
ISSUES Scope of remittal to Tribunal; time for determination of clinical onset of medical conditions; application of relevant SoP definitions 


Mr Kaluza served in the Royal Australian Air Force from 1963 to 1983.  During the Vietnam War he participated in several flights to and from Vietnam.

Mr Kaluza applied for disability pension for a number of medical conditions.  After adverse decisions by the Repatriation Commission and the Veteran’s Review Board, the Administrative Appeals Tribunal (Tribunal) varied the diagnoses of Mr Kaluza’s conditions but affirmed the decision to refuse his pension claim.  Mr Kaluza made an appeal to the Federal Court on two questions of law.  His appeal was successful on the second question and the matter was remitted to the Tribunal (see Practice Note 18 of 2008).  On remittal, the Tribunal found that none of the conditions from which Mr Kaluza suffers were war-caused.  Mr Kaluza appealed this second decision of the Tribunal to the Federal Court.

Questions of law raised on appeal

The questions of law were whether:

  1. The Tribunal committed an error of law by limiting its review on remittal to an alleged stressor in 1969, without considering another alleged stressor in 1968;
  2. If the Tribunal conducted a full review (contrary to the first error claimed by Mr Kaluza), it misapplied the provisions of s 6C of the Act and “failed to ask the correct question” as to whether Mr Kaluza was in operational service;
  3. The Tribunal misapplied the decision in Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331 by determining the clinical onset of Mr Kaluza’s medical conditions at the time when he sought treatment;
  4. The Tribunal misapplied the relevant Statement of Principles (SoP), in particular the necessary factors for a severe psychological stressor; and
  5. The Tribunal misapplied the SoP test of a psychological stressor for alcohol abuse.

The Court’s Consideration

Question 1 - scope of remittal
Counsel for the applicant submitted that the order made by Justice Branson in the earlier Federal Court decision was clear and unqualified, and the Tribunal rehearing the matter was required to determine all questions of fact and law relevant to Mr Kaluza’s claim, in accordance with Peacock v Repatriation Commission [2007] FCAFC 156; (2007) 161 FCR 256. 

However, Justice Jacobson considered there was sufficient ambiguity in the terms of the order to warrant consideration of the reasons for judgment and context, which begins with the statutory conferral of power on the Court, giving jurisdiction only on a question of law.  Where the Court has jurisdiction, it may make such order as it thinks fit under s 44 of the AAT Act.  The exercise of power by Justice Branson in making the order was expressly predicated on Her Honour’s reasons for answering the second question of law favourably to Mr Kaluza i.e. the matter which was remitted was the question of whether the leg of the journey from Vietnam, via Butterworth to Peace, in 1969 (during which an alleged stressor occurred) was part of his operational service.  Therefore, the Tribunal adopted the correct construction of the scope of the remittal, and was correct in refusing to permit Mr Kaluza from adducing further evidence as to whether he rendered operational service on a flight in 1968 (when another alleged stressor occurred).

Question 2 - embarking on a full review but failure to complete the exercise of jurisdiction
Counsel for the applicant argued the Tribunal had made a new finding about the flight in 1968, which required the Tribunal to determine whether it constituted operational service and whether Mr Kaluza’s medical conditions were caused by this flight.  However, Justice Jacobson indicated that when the reasons of the Tribunal were read as a whole the Tribunal made no new finding, and the entire scope of the review was limited to the flight in 1969 from Butterworth to Pearce.

Question 3 - date of clinical onset
Counsel for the applicant submitted the Tribunal misstated the test referred to in Lees, so as to treat the date of clinical onset as the date on which treatment was sought.  His Honour did not consider this to be a fair reading of the Tribunal’s reasons, and the Tribunal had determined the dates of clinical onset of the conditions on the basis of the medical evidence.

Question 4 - severe psychological stressor
Counsel for the applicant argued the Tribunal failed to properly consider and apply this definition in the relevant SoP, as the Tribunal indicated in its reasons the Mr Kaluza needed to point to a threat of death or serious injury, or a threat to his physical integrity.  Although this language followed more closely the wording of the SoP for PTSD rather than the relevant SoP for anxiety disorder (which referred to an identifiable occurrence that evokes feelings of substantial distress), in Justice Jacobson’s view the Tribunal did not depart in its reasoning from the definition in the SoP for anxiety disorder.

Question 5 - severe stressor for alcohol abuse
Counsel for the applicant submitted the Tribunal applied the wrong test for the definition of “severe stressor” in the SoP for alcohol abuse, and as in Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473 the definition did not require the person to see or personally experience the events referred to in the SoP.  However, His Honour did not consider the Tribunal fell into the error identified in Woodward, and the Tribunal had identified the correct test.

Formal decision

Justice Jacobson dismissed the appeal.

Editorial note

All of the questions of law raised in this appeal were answered in the negative.  The Court found the Tribunal had correctly limited the scope of its review on remittal i.e. to the second question of law answered favourably to Mr Kaluza in his first appeal to the Federal Court.  The Court considered the definition of clinical onset in Lees emphasised the need for a determination of the clinical onset by medical evidence.

All Practice Notes