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Summers v Repatriation Commission

[2015] FCAFC 36

COURT Federal Court, Melbourne
JUDGE Kenny, Murphy & Beach JJ
DATE OF DECISION 17 March 2015
DECISION The appeal was allowed
ISSUES Whether the Tribunal failed to consider the applicability of factor 6(a) of the Statement of Principles (SoP) for Alcohol Dependence and Alcohol Abuse – whether the Tribunal misconstrued s120 and /or the applicable SoP – whether the Tribunal adhered to the Deledio process for determining whether injury or disease war-caused under the Act


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, on 26 October 1968 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 returned for a second time to the Federal Court, where the appeal and cross appeal (regarding the Tribunal’s acceptance of PTSD) were dismissed. Mr Summers now appeals for a second time to the Full Court of the Federal Court.

Grounds of appeal

The appeal primarily concerned the proper application of s120(3) and the operation of the applicable Statement of Principles (SoP) for alcohol dependence.

The Court’s consideration

The Court allowed the appeal on two grounds:

  1. On the material raised before it the Tribunal failed to consider the applicability of clause 6(a) of the applicable SoP (on the basis that Mr Summers suffered from war-caused PTSD at the time of the clinical onset of his alcohol dependence). The Court was not satisfied that the Tribunal addressed this argument. This ground was not raised before the primary judge, and the Court granted leave for Mr Summers to add this new ground of appeal.
  2. The Tribunal erred in its approach to the material regarding Mr Summers’ alcohol dependence and the applicable SoP, and the primary judge erred in failing to correct this error. At the stage of the enquiry under s120(3) around which the appeal turns, the Tribunal was required to decide whether the material before it pointed to or raised a hypothesis consistent with the applicable SoP. In the Court’s view it misconceived its task and asked itself the wrong question.

The other grounds of appeal regarding special rate pension were unsuccessful.

1. Whether the Tribunal failed to consider the applicability of factor 6(a) of the SoP

Mr Summers argued before the Tribunal that he satisfied clause 6(a) of the SoP because he suffered PTSD at the time of the clinical onset of his alcohol dependence. The Court considered the Tribunal did not properly consider the argument.

First, whether the Tribunal was addressing a hypothesis advanced in reliance on clause 6(a) or 6(b) was a matter of real importance. The Tribunal treated the Watson’s Bay event as the relevant category 1A stressor under clause 6(b), and for Mr Summers to satisfy that clause the material before the Tribunal was required to point to him having experienced that event within a five year period before the clinical onset of his alcohol dependence (meaning the material was limited to the five year period from about 26 October 1968 to 26 October 1973). The Tribunal did not decide the precise date that Mr Summers commenced to suffer PTSD but said it arose out of the Watson’s Bay event in the period following that. For Mr Summers to satisfy clause 6(a) the material before the Tribunal was required to point to him having PTSD at the time of the clinical onset of his alcohol dependence (meaning material from any date from about 26 October 1968 through to the date of the application on 10 December 2007 could demonstrate this). The Court indicated at no point did the Tribunal expressly state which hypothesis it was referring to, and at no point did it expressly address the clause 6(a) hypothesis.

Second, the Tribunal referred to Mr Summers’ hypothesis singularly. It was unclear to the Court whether the Tribunal was addressing only one hypothesis, and if so which one, or whether it was addressing the four asserted hypotheses in a rolled up way. Again the Court noted that at no point did the Tribunal expressly deal with the clause 6(a) hypothesis.

2. Whether the Tribunal misconstrued s120 and/or the applicable SoP

The Court indicated that as part of the Tribunal’s task under s120(3) it was required to consider whether the hypothesis Mr Summers advanced to connect his alcohol dependence with the circumstances of his service was consistent with the template in clause 3(b) of the SoP, and therefore a reasonable hypothesis. For Mr Summers to meet these requirements, the material before the Tribunal needed to point to or raise him having “clinically significant impairment or distress, as manifested by three (or more) of the following [from a list of seven diagnostic criteria then set out] occurring at any time in the same 12-month period…”. The Court noted it is established that it is impermissible to engage in fact finding at stage three of the Deledio process. The Court considered the appeal in light of a hypothesis based on clause 6(a), meaning the three clause 3(b) factors could be found in any 12 month period from about 26 October 1968 through to 10 December 2007.

The Court turned to consider the material in relation to each clause 3(b) factor in order to determine whether or not the Tribunal misunderstood its task under s120(3) of the Act and clause 3(b) of the SoP. The Court inferred from the Tribunal’s approach to the material before it that it did misunderstand this task. In regards to some of the factors, the Tribunal used the language of fact finding. The Court made it clear it did not purport to make the enquiry under stage three of the Deledio process itself, as this will be a task for the Tribunal.

The Court’s decision

The appeal was allowed. The Tribunal’s decision was set aside in so far as it affirmed the decisions under review (regarding alcohol dependence and pension assessment), and the matter was remitted to the Tribunal for rehearing according to law.

Editorial note

The Court observed that Mr Summers’ application for special rate is likely to turn on whether his alcohol dependence is found to be war-caused, when it returns for a third time to the Tribunal.

All Practice Notes