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Kaluza v Repatriation Commission

[2014] FCA 1137

COUR Federal Court, Sydney
JUDGE Foster J
DATE OF DECISIO 23 October 2014
DECISION The appeal was dismissed
ISSUE Whether the two questions posed by the applicant are questions of law – if so, whether the Tribunal failed to apply to the correct principles as explained in Kaluza v Repatriation Commission [2011] FCAFC 97 and Repatriation Commission v Deledio [1998] FCA 391

Facts

Mr Kaluza served in the Royal Australian Air Force between 29 August 1963 and 31 October 1983, and had some operational service on flights to Vietnam as well as eligible defence service.  On 24 June 2013 the Administrative Appeals Tribunal (the Tribunal) dealt with Mr Kaluza’s case for the third time.  The history is outlined in the case summary of Kaluza and Repatriation Commission [2013] AATA 424 in Issue 28 of VeRBosity at pages 16-20.

Mr Kaluza appealed against the Tribunal’s latest decision on two questions of law:

  1. In determining whether there were some fact or facts which supported a hypothesis that Mr Kaluza suffered from war-caused alcohol abuse, did the Tribunal err by confining itself to a consideration of the medical evidence?
  2. In determining whether there were some fact or facts which supported a hypothesis that Mr Kaluza reacted to the coffin incident with intense fear, helplessness or horror, did the Tribunal err by having regard to the material as a whole?

Grounds relied on

  1. One issue was whether Mr Kaluza suffered from war-caused alcohol abuse at the time of the clinical onset of generalised anxiety disorder or alcohol dependence or both. In respect of hypertension, the issue was whether Mr Kaluza had a war-caused consumption of alcohol that met the requirements of the applicable Statement of Principles, at the time of the clinical onset of hypertension. In determining whether there was some fact or facts pointing to the clinical onset of alcohol abuse, the Tribunal ignored relevant material and confined itself to the medical evidence. The Tribunal should have formed its own view, on all the evidence, about whether and when the clinical onset of alcohol abuse, as defined in the Statement of Principles, occurred.
  2. For alcohol abuse to be war-caused there had to be some fact or facts which supported an hypotheses [sic] that Mr Kaluza responded to the coffin incident with intense fear, helplessness or horror. The Tribunal dealt with this issue in respect of alcohol dependence but its finding was equally applicable to alcohol abuse. In making its finding, the Tribunal considered all the relevant evidence going to his response. The Tribunal should have confined itself to any fact or facts that supported the hypothesis.

The Commission argued that neither of the so-called questions of law was in truth a question of law.

The Court’s consideration

The Court did not consider that question 1 raised any question of law.  Question 1 assumes that the Tribunal was required to consider hypotheses which related to alcohol abuse.  The Court explained at paragraphs [79] – [80]:

…But the Tribunal found that, at all times relevant to his claim for a pension at the higher rate, Mr Kaluza was suffering from alcohol dependence.  It made no specific finding as to whether he had ever suffered from alcohol abuse.  The Tribunal was required to assess whether the condition of alcohol dependence (and only that condition) was war-caused.  In the circumstances, Mr Kaluza was required to bring forward hypotheses which addressed that condition and that condition only.  The fact that the Tribunal regarded alcohol dependence and alcohol abuse as alternative cases propounded by Mr Kaluza was the direct result of the way in which Mr Kaluza ran his case before the Tribunal.

The Tribunal considered the case which Mr Kaluza had advanced before it was that he was suffering either from alcohol dependence or alcohol abuse (but not both) and that, whichever was the correct diagnosis, the condition was war-caused.  Mr Kaluza ran a case before the Tribunal which gave primacy to the proposition that he was suffering from alcohol dependence.  His case that he was suffering from alcohol abuse was put as an alterative to the primary case relied upon by him viz that he was suffering from alcohol dependence.

The Court also considered both parties’ written submissions to the Tribunal.  However, Mr Kaluza’s submissions were made in circumstances where his primary case before the Tribunal was that, at the time he made his pension claim in 2003 and at all times subsequently, he was suffering from alcohol dependence.  Even if the submissions amounted to the raising of a sub-hypothesis, the questions raised are all questions of fact. 

For completeness the Court also addressed question 1 on the basis that it was a question of law, and decided there was no error on the part of the Tribunal.

The Court had serious reservations as to whether the second question was in fact a question of law, but assumed it was and went on to address the second question.  The Court did not consider that the Tribunal failed to apply the reasoning of the Full Court in Kaluza v Repatriation Commission or the reasoning of the Full Court in Deledio, so did not err in the manner alleged by Mr Kaluza.

The Court’s Decision

The appeal was dismissed.

Editorial Note

The Tribunal’s decision still stands that Mr Kaluza’s generalised anxiety disorder, alcohol dependence and hypertension were not war-caused.

All Practice Notes