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Summers v Repatriation Commission

[2014] FCA 608

COURT Federal Court, Melbourne
JUDGE Mortimer J
DATE OF DECISION 12 June 2014
DECISION The appeal and cross-appeal were dismissed
ISSUES Appeal from decision of AAT to refuse an increase in rate of pension - cross-appeal from decision of AAT that applicant suffered from PTSD - whether the Tribunal erred in its conclusion that alcohol dependence was not war-caused

Facts

Mr Summers served in the Australian Army from 12 July 1967 to 11 July 1969.  He experienced operational service in South Vietnam from 23 June 1968 until 14 October 1968.  In Vietnam, the applicant was stationed at Vung Tau and operated the Other Ranks canteen.  After three and a half months, the applicant’s father died and the applicant returned to Melbourne.  After attending his father’s funeral in Melbourne, the applicant was sent to Sydney in preparation for his return to Vietnam.  While in Sydney, the applicant was involved in an altercation with a group of sailors near Watson’s Bay which resulted in him falling over a cliff.  This occurred while he was still on emergency leave on compassionate grounds, which constitutes operational service.

Mr Summers made a disability pension claim for post traumatic stress disorder (PTSD) and alcohol dependence, and sought an increased rate of pension.  This claim has been dealt with by the Administrative Appeals Tribunal (the Tribunal), the Federal Court, the Full Court of the Federal Court, and again by the Tribunal.  It returns for a second time to the Federal Court.

The Tribunal’s decision

When the case returned to the Tribunal, it decided that Mr Summers’ PTSD was war-caused, but alcohol dependence was not.  As alcohol dependence was one of the reasons Mr Summers was not able to work, he was not entitled to either an intermediate or a special rate of pension.  Mr Summers appealed to the Federal Court against the Tribunal’s finding that his alcohol dependence was not war-caused, and the Tribunal’s conclusion he was not entitled to an increased rate of pension.  The Commission lodged a cross-appeal against the decision of the Tribunal that Mr Summers’ PTSD was war-caused.

The Court’s consideration

Alcohol dependence

The first four questions of law identified in Mr Summers’ appeal related to the Tribunal’s finding about his alcohol dependence.  Question 1 focussed on the Tribunal’s construction of specific factors in cl 3(b) of the relevant Statement of Principles (SoP), which act as indicators of the definition of “alcohol dependence”:   

Questions 2 and 3 centred on the way the Tribunal went about its fact finding on the factors in cl 3(b).  The Court stated the two findings in issue represent the Tribunal’s conclusion having examined the evidence, and the Tribunal was entitled to point to gaps in the evidence which meant the applicant could not satisfy particular factors within cl 3(b).

Question 4 related to the Tribunal’s compliance with its obligations under s 43(2B) of the AAT Act concerning the reasons why it was not satisfied the applicant met the criteria in cl 3(b).  The level of generality of the applicant’s evidence was reflected in the way the Tribunal explained its reasoning, so the Court was of the opinion the Tribunal did not fail to comply with its statutory obligations. 

Rate of pension

The other six questions of law related to the Tribunal’s findings about ss 23 and 24 of the Act.  Question 5 concerned the Tribunal’s interpretation of the word “loss” in s 24(1)(c) and s 24(2)(a) of the Act.  As the Tribunal answered the third step of Flentjar adversely to the applicant, and did not proceed to the fourth step of whether the applicant was “suffering a loss” within s 24(1)(c) itself, the Court considered there was no misconstruction.  The Court rejected the applicant’s submission that the Tribunal took an erroneous approach to s 24(2)(a).  Given that the Tribunal had already found the applicant did not meet the “substantial cause” test in s 24(2)(b), its approach to s 24(2)(a) was not material to its conclusion that the applicant could not obtain the benefit of the ameliorating provision in s 24(2)(b).

Question 7 challenged the Tribunal’s interpretation of the phrase “genuinely seeking to engage in remunerative work” in s 24(2)(b) of the Act.  The applicant’s submission invited the Court to disagree with the Tribunal’s view of the evidence, which was not part of the Court’s function.

Question 9 contended the Tribunal took into account irrelevant considerations of age and the state of the retail industry for the purposes of identifying  the “substantial cause” of Mr Summers’ inability to engage in remunerative work.  The Court considered the Tribunal was undertaking a factual inquiry into why the applicant had not been able to find remunerative work, and it was open to the Tribunal to accept the applicant’s own evidence on theses issues, and rely on them in forming its conclusions. 

Finally, questions 6, 8 and 10 related to the Tribunal’s compliance with its obligations under s 43(2B) of the AAT Act in relation to the above findings under s 24(1)(c) and 24(2).  The Court was satisfied the Tribunal’s reasons exposed its reasoning process in a way that complied with its statutory obligations. 

PTSD

In relation to the cross-appeal, the question of law raised was whether the Tribunal failed to make material findings of fact for it to determine that Mr Summers suffered PTSD.  The Court considered the Tribunal discharged its obligations under ss 43(2) and (2B) of the AAT Act, and the Commission’s contentions sought to try and have the Court interrogate the Tribunal’s findings on the merits or provide a further explanation to the satisfaction of the Commission.

The Court’s Decision

The appeal and cross-appeal were dismissed.

Editorial Note

This case dealt with quite narrow issues about the diagnostic factors for alcohol dependence, statutory interpretation of s 24(1)(c) and s 24(2) of the VEA, and compliance with ss 43(2) and (2B) of the AAT Act.  The Court also made the general point that it is well established that, in applying a SoP to the evidence and material before it, the decision-maker is to form an opinion whether a veteran is or is not suffering from a particular condition: see O’Dowd v Repatriation Commission [2013] FCA 991 and the cases there referred to.  The decision-maker does not delegate or defer to any medical evidence on this matter, although clearly such evidence may be given weight.  For example, whether Mr Summers did or did not suffer from PTSD was a conclusion the Tribunal needed to reach for itself, applying the diagnostic criteria in DSM-IV and taking into account all the evidence and other material before it.

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