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Sharley v Repatriation Commission

[2013] FCA 1031

COURT Federal Court, Melbourne
JUDGE Jessup J
DATE OF DECISION 14 October 2013
DECISION Appeal allowed re osteoarthritis
ISSUES Whether AAT erred by not providing adequate reasons for its conclusion that applicant did not suffer war-caused PTSD - whether Tribunal erred by not providing written reasons for part of applicant’s claim regarding osteoarthritis after respondent’s affirmation of decision remitted by Tribunal


Mr Sharley served in the Royal Australian Air Force and had operational service in South Vietnam for about 11 months, commencing on 25 February 1970.  He lodged a disability pension claim for a number of conditions.  By the time Mr Sharley’s appeal reached the Administrative Appeals Tribunal (Tribunal), only his claims regarding PTSD and osteoarthritis of the knees were in issue.  The Tribunal affirmed the decision under review relating to PTSD, finding that he did not suffer from PTSD.  It determined that Mr Sharley suffers from war-caused alcohol dependence in partial remission.  The Tribunal remitted the claim for osteoarthrosis of both knees to the Repatriation Commission for reconsideration on different grounds as outlined in the Tribunal’s decision.  Mr Sharley appealed to the Federal Court.

Grounds of appeal

Mr Sharley’s appeal raised the following issues:

The Court’s consideration

Regarding the first issue, the Court noted that s43(2) of the AAT Act requires the Tribunal to “give reasons either orally or in writing for its decision”, and where the reasons are in writing s43(2B) stipulates that “those reasons shall include [the Tribunal’s] findings on material questions of fact and a reference to the evidence or other material on which those findings were based”.  The Court referred to relevant commentary on these legislative requirements in Repatriation Commission v Hendy [2002] FCA 424, in which the Full Court said:

…this is not a requirement that the reasons provide an unarguable logical progression to a conclusion.  It will, in almost every case, be that alternative conclusions are possible based on the evidence and other material to which reasons refer.  The fact that the tribunal may come to a conclusion contrary to that which the court or a tribunal differently constituted might come is not a reviewable error, so long as the reasons include the factors set out in s43(2B) of the AAT Act.

The Court also noted in Hill v Repatriation Commission [2004] FCA 832, Mansfield J said:

The requirement of s43(2B) of the AAT Act is that the tribunal’s process of reasoning be adequately exposed to indicate how the tribunal has gone about its task, and why it has reached its conclusion.  It is a corollary of the requirement that the tribunal will adopt sound and proper legal reasoning.  But s43(2B) does not oblige the tribunal to correctly identify and apply the law.  It aims to expose whether the law has been correctly identified and applied.

In light of the above cases, and also Smith v Repatriation Commission (2012) 131 ALD 63, the Court was satisfied that the Tribunal in the present case provided adequate reasons for its conclusion that the applicant did not suffer from PTSD.

Regarding the second issue, the Court noted that ultimately the Commission accepted that this aspect of the case needed to be remitted to the Tribunal.  The Court went on to say something about the procedural course of the applicant’s claim in the Tribunal, to illuminate the error into which the Tribunal had fallen.  In relation to the applicant’s osteoarthritis claim, when the Tribunal was applying step three of the Deledio principles it remitted the claim in accordance with s42D of the AAT Act to the Commission for reconsideration and the obtaining of further evidence.  In the circumstance where the Commission affirms the decision, s42D(8) requires the proceeding to resume before the Tribunal.

A delegate of the Commission went on to affirm the Commission’s original decision that Mr Sharley’s osteoarthrosis was not related to his operational service.  The Tribunal asked the Commission to provide further and better particulars of its decision, which the Commission did.  The Tribunal then directed the Commission, through its solicitors, to seek further information from general practitioners who had treated the applicant over the years.  However, the material provided was not sufficient for the Tribunal’s then purposes, which related to the question of whether the applicant had been overweight for at least 10 years before the clinical onset of osteoarthritis in the joint in question.  The Tribunal requested the Commission’s solicitors to contact a treating physician, but the physician’s response did not take the matter any further.  The Commission’s solicitors then wrote to the Tribunal requesting it to confirm that the matter had been finalised and closed, which it did.  In the Federal Court proceedings, the Commission accepted that the Tribunal had unfinished business, as it had not given final consideration to, and made a decision upon, the applicant’s claim for a pension for osteoarthritis.  Although the proceeding did resume in accordance with s42D(8), the Tribunal had not made a decision in writing as required by s43(1) of the AAT Act.  The Court therefore made a remitter order.

The Court’s decision

The applicant’s claim regarding osteoarthrosis of the knees was remitted to the Tribunal.  The application regarding PTSD was dismissed.

Editorial Note

This case dealt with procedural issues which arose in the Tribunal, relating to the adequacy of the Tribunal’s reasons for its conclusion the applicant did not suffer from PTSD, and the Tribunal’s omission to make a decision regarding the applicant’s claim for osteoarthritis.  In the circumstance where the Tribunal remits a matter to the original decision-maker under s42D of the AAT Act, and that decision-maker affirms the decision, the proceeding resumes in the Tribunal and the Tribunal is required to make a decision in writing in accordance with s43(1) of the Act.

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