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Kaluza v Repatriation Commission

[2011] FCAFC 97

COURT Federal Court, Sydney
JUDGE McKerracher, Perram and Robertson JJ
DECISION The appeal was allowed
ISSUES What was actually remitted to the Tribunal and how the Tribunal perceived its role, whether the test for clinical onset was misstated and whether the tribunal addressed itself to the wrong SoP.


On appeal to the Federal Court ( the first appeal) the question for determination was whether Mr Kaluza was rendering operational service at the time when the claimed stressors occurred. In the first appeal, Branson J concluded that there was no proper basis for review in relation to the 1968 incident which had been determined on the merits. However, her Honour decided the question relating to the 1969 claim favourably to Mr Kaluza.  The first Tribunal decision was set aside and remitted to the Tribunal to be determined according to law.

On remittal, the Tribunal concluded that none of the conditions which Mr Kaluza suffers were war caused. Mr Kaluza sought review appealing that decision to the Federal Court ( the second appeal).

Mr Kaluza appeals from the judgment of the Court in the second appeal dismissing his appeal from the second Tribunal decision.

Grounds of appeal

  1. His Honour erred in construing the remittal, made by Branson J as being limited to the Applicant’s operational service in 1969.
  2. His Honour erred in holding that the Tribunal had not erred in finding that the clinical onset of the Appellant’s anxiety disorder was in 1972.
  3. His Honour erred in holding that the Tribunal  had not erred in determining whether there were raised facts pointing to the hypothesis that the Appellant had experienced a severe psychosocial stressor.
  4. His Honour erred in holding that the Tribunal had not erred in determining whether there were raised facts pointing to the hypothesis that the Appellant had experienced a severe stressor.

The Court’s Consideration

The remittal

It cannot be said that  a decision maker exercising executive power is confined to considering only those issues in respect of which a point of law was made out.

In light of the statements in Wang, in our view, unless there is some qualification in the remittal order, there is nothing ambiguous about the order. The entire case is remitted.

The Tribunal stands in the shoes of the primary decision maker and by S43(1) of the AAT Act, for the purpose of reviewing a decision, may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision. In our view construing the scope of a remittal as limited would tend to run counter to the tribunal’s function.

The Tribunal acts on the material before it without being limited in the same way in which the Court is generally limited on judicial review to the material before the primary decision maker.

This does not mean that there is an obligation on the Tribunal to rehear all the same evidence. It is for the Tribunal rehearing the matter to determine all questions of fact and law relevant to the claim. By considering that it was bound to only consider the 1969 claim ( rather than it being open to it to entertain an application to adduce new evidence  on the 1968 claim), the Tribunal did not consider the entire remittal and deprived itself of the obligation to consider the 1968 flight claim.

Given that the first Tribunal Decision was affected by legal error, it is the entire determination comprising the various claims within it that was set aside, not the legal error giving rise to an erroneous conclusion as to one of the claims.

For those reasons we accept Mr Kaluza’s arguments, what was remitted was the entire case. It is not a question of whether Mr Kaluza should have been permitted to reopen his entire claim as advanced by the Commission. It is rather a question of identifying precisely what was remitted.

The error on the part of the Tribunal was to consider that it was precluded from considering the grounds which were not upheld on the First Appeal.

Date of clinical onset

The primary judge also rejected Mr Kaluza’s contention that the Tribunal had misstated the test for determining “ the clinical onset” of Mr Kaluza’s disease.

The primary judge also noted that the definition in Lees emphasised the need for a determination of the clinical onset by medical evidence.

Although it was for a doctor to say when the clinical onset occurred by the presence of features or symptoms, clinical onset was not necessarily when the patient first saw a doctor for medical treatment.
Mr Kaluza contended the second Tribunal misapplied the test referred to in Lees so as to treat the date of clinical onset as the date on which treatment was sought.

The primary judge did not agree that the paraphrasing by the Tribunal, of the test in Lees was inaccurate and that it captured the essence of the test which was that all the symptoms must be displayed and treatment sought so that a practitioner can determine the date of clinical onset.

The Tribunal found that there was a psychiatric condition established in 1968 but it was first treated in 1972. Because that was the date of first treatment the Tribunal held that 1972 was the date of onset.

This analysis does suggest that the Tribunal’s approach was that the test in Lees was that all the required symptoms had to be displayed and treatment sought in order to determine clinical onset. However, that was not the approach taken in Lees.

In other words, the Tribunal construed the test as one in which the date for clinical onset was to be the date of the formal finding on investigation even though that may be well after the date at which all the required symptoms were displayed.

In our view this ground should succeed. The fact that it was not advanced before Branson J on the earlier appeal does not preclude it from being raised now in relation to what was, as we have held in relation to Ground 1, a full rehearing.

Severe psychosocial stressor

This question here is whether the Tribunal addressed itself to the wrong SoP in considering whether there were raised facts pointing to the hypothesis that Mr Kaluza had experienced a severe psychosocial stressor.

The Tribunal said:

A severe psychosocial stressor is defined in Instrument No 1 of 2000 as an identifiable occurrence that evokes feelings of substantial distress in an individual.

The Tribunal then went on to say referring to a different definition:

Mr Kaluza’s experiences on the flight of 24 February 1969, as he raised them, demonstrated some distress, and in order to fit the template, needed to point to a threat of death or serious injury or to his physical integrity, and which with his knowledge and in his experience, could reasonably be so perceived.

Stoddart is authority for the situation where Mr Kaluza’s distress regarding the identity of the person in the coffin did not need to be accurate, that is the events experienced can be a combination of subjective feelings and objective situations as in the case of the cocked gun ( which may or may not be loaded, referred to in Stoddart. In order to fit the template, Mr Kaluza’s fourth hand in the game of cards on the casket had to point to a threat of death or serious injury or to his physical integrity by a combination, at least of an objective threat and/ or the expression of his feelings. Mr Kaluza’s situation does not in our view meet the factors for experiencing a severe psychosocial stressor in order to raise a reasonable hypothesis.

We note that Stoddart was dealing with a different Sop. We also note that the words we have underlined came from SoP N0 3 of 1999 not from Sop 1 of 2000 and are quite different to         “ evokes feelings of substantial distress’ which was the language of the correct Sop.

The difficulty with the Tribunal’s reasons on this topic are that, although it correctly stated the test by reference to the correct Sop and it referred again to part of the correct SoP in passing    ( albeit that it tended to treat the examples given as being exhaustive rather than examples only) in the central part of its reasoning it considered terms from the incorrect SoP and that error was repeated and applied.

We find the Tribunal applied the incorrect test and therefore we uphold this ground. It will be for the Tribunal to decide whether, applying the correct test, a reasonable hypothesis is made out.

Severe stressor

The final issue is whether there was legal error in the Tribunal’s determination of whether there were raised facts pointing to the hypothesis that Mr Kaluza had experienced a severe stressor as defined in the relevant SoP.

Woodward shows that one may be confronted with such events which one has neither seen nor experienced. Although the Tribunal noted that it was agreed by both parties that Mr Kaluza held an incorrect belief at the time about the identity of the deceased soldier in the casket, nevertheless the Tribunal did not in its reasons specifically address the question of whether, objectively, Mr Kaluza was confronted with an event of this nature.

The primary judge said he did not consider that in the present case the Tribunal fell into the error identified in Woodward. His honour said the Tribunal identified the correct test and its conclusion was based upon the matters to which he had referred in dealing with the question of the severe psychosocial stressor as defined does not necessarily mean that it does not point to a severe stressor.

We find that the Tribunal did not address part of the correct question , that part being whether Mr Kaluza was “ confronted with an event that involved actual death’.

We so conclude on the basis that if the Tribunal had addressed that question it would have articulated reasons for its conclusion. Without addressing that issue the Tribunal could not have gone straight to consider the effect of the ( unidentified) event.

We therefore uphold this ground.


For these reasons we allow the appeal and remit the case to the Tribunal to be heard and decided again.

Editorial Note

For further reading please see previous practice notes, Kaluza v Repatriation Commission [2008] FCA 1365 decided by Branson J and Kaluza v Repatriation Commission  decided by Jacobson J.

In particular this case reinforces the test in Lees for clinical onset. That test is either when a person becomes aware of some feature or symptom which enables a doctor to say that the disease was present at that time; or when a finding is made on investigation which is indicative to a doctor that the disease is present. The test does not require both.

This case also emphasises the importance of applying the correct definitions from the correct Sops. Given the definitions have changed overtime.

Although the cases of Hunter and Border deal with cases concerning PTSD, they also address the definitions in the SoP.

All Practice Notes