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Malady v Repatriation Commission

[2011] FCAFC 45

COURT Federal Court, Sydney (via video link to Melbourne)
JUDGE Emmett, Dowsett and Rares JJ
DECISION The appeal was dismissed
ISSUES Whether a judge of the Court, having found error on the part of the Administrative Appeals Tribunal, erred in declining to remit the matter to the Tribunal for further determination


The matter before the Full Federal Court concerned Mr Malady’s claim for disability pension for major depression, alcohol abuse and drug abuse. His claim was rejected by the Repatriation Commission (the Commission) on 2 February 2001. On 7 October 2002, the Veterans’ Review Board (the Board) affirmed the decision of the Commission. The Veteran then appealed to the Administrative Appeals Tribunal (the Tribunal). On 28 July 2005, the Tribunal set aside the decision of the Board and substituted its own decision, that the Veteran’s major depressive disorder, alcohol dependence or abuse and drug dependence or abuse were war caused. The Commission then appealed to the Federal Magistrates Court. On 21 July 2006, the Federal Magistrates Court set aside the Tribunal’s decision and ordered proceedings be remitted to the Tribunal for further hearing and consideration. The Tribunal differently constituted decided that the veteran suffered from major depressive disorder, alcohol abuse and drug abuse and that those conditions were war caused.  The Commission then appealed to the Federal Court.

The Federal court found that it was not open to the tribunal to rely on the condition of borderline personality disorder to connect the claimed conditions to service in light of  the Tribunal’s  finding of fact that that the borderline personality disorder was not connected to the veteran’s operational service.
The Federal Court allowed the appeal and set aside the Tribunal’s decision and affirmed the decisions of the Board and the Commission.
The court noted that an order to remit the matter back to the Tribunal will only be appropriate in cases where the Tribunal’s error of law has distracted it from making findings which might resolve favourably to an applicant.

The veteran then appealed the decision to the Full Federal Court.

Grounds of appeal

It was argued on behalf of Mr Malady that the primary judge erred in failing to order that the proceedings be remitted to the Tribunal to be reheard and determined according to law. The Full Court granted leave to Mr Malady to file written submissions stating the findings the Tribunal could and should have made, had it not made the conceded error of law, indicating the evidence in the appeal papers on which those findings would be based and whether he invited the Full Court to make findings of fact.

Mr Malady in his written submissions contended that the Tribunal should have found that he experienced various stressors that aggravated his alcohol abuse condition and his drug abuse condition. He contended that the Tribunal should have considered whether each of his pre existing alcohol abuse and drug abuse had clinically worsened by his service in East Timor. He relied on each of the patrol vehicle and shallow grave incidents as satisfying the factor of  “experiencing a severe stressor”. Mr Malady also argued that the Tribunal should have found that his depressive disorder was causally linked to his service because one or both of his alcohol and drug abuse had been aggravated by that service.

The Court’s Consideration

Justice Rares noted that each of Mr Malady’s pre existing conditions( alcohol abuse, drug abuse and borderline personality disorder) could only be found by the Tribunal to be a clinically significant psychiatric condition if it related to service within  the meaning of s196B(14). He noted that for the purposes of 196B(14), none of those conditions resulted from an occurrence that happened while Mr Malady was rendering service because each existed beforehand. In relation to S196(14(b), none of them could be said to have arisen out of or be attributable to the service for the same reason. S196(14)(f) prescribed that a disease could be related to service if a factor that caused or contributed to it would not have occurred: “ (i) but for the rendering of that service by the person; (ii) but for changes in the person’s environment consequent upon his her having rendered that service.”

He further noted the Tribunal’s findings that Mr Malady’s service was not the sole cause of the worsening of the alcohol and drug dependence or the development of his depressive disorder would make remission to the Tribunal on this issue futile.

Justice Rares noted the primary judge referred to the Tribunal’s finding that Mr Malady had not experienced any severe traumatic stressor while in East Timor however, the Tribunal found that the alcohol abuse and drug abuse were aggravated by his operational service.

Justice Rares noted that there was no basis for a finding that Mr Malady experienced an event that fell within the definition of “ experiencing a severe stressor” in any substance abuse SoP. It therefore follows that there was no factual issue in relation to the alcohol and drug abuse SoPs that the Tribunal left open as capable of being found in favour of Mr Malady.

Justice rares therefore considered his claim under those Sops were not affected by the error of law and doomed to fail.

Emmett and Dowsett JJ agreed with the reasons and orders proposed by Rares J.


Mr Malady’s  appeal was dismissed with costs.

Editorial Note

For further reading on the primary judge’s decision please see Discourse Winter 2010 Issue 2.

All Practice Notes