FCA 1193
|COURT||Federal Court, Victoria|
|DATE OF DECISION||13 August 2018|
|DECISION||The appeal was allowed|
|ISSUES||Claim for PTSD, generalised anxiety disorder and alcohol abuse – where parties agreed Tribunal had erred and the Tribunal’s decision should be set aside – where the Tribunal had also found it lacked jurisdiction to deal with the applicant’s claims under s70 of the VEA on the basis the VRB had not dealt with this claim – whether the Tribunal had erred in its determination – whether the scope of remittal to the Tribunal should be confined|
After a successful appeal by Ms Warren (previously McKinley) to the Full Court of the Federal Court in 2015, the matter was remitted to the Administrative Appeals Tribunal (the AAT). In 2017 the AAT affirmed the decision under review (concerning generalised anxiety disorder and alcohol dependence), and also found that it did not have jurisdiction to hear the applicant’s claim to the extent that it was made in reliance on section 70 of the VEA. The applicant appealed to the Federal Court.
Grounds of appeal
The parties agreed that the AAT’s decision was affected by legal error, and the Court made consent orders to allow the appeal in part and set aside paragraph 1 of the AAT’s decision. The remaining issue related to the AAT’s finding in paragraph 2 that it did not have jurisdiction to hear what it referred to at  as “the expanded claims under s 70 of the Act, relating to eligible but non-operational defence service”.
The Court’s consideration
The Court noted the decision of delegate of the Commission had related to both eligible defence service and operational service. The applicant’s appeal to the Veteran’s Review Board (VRB) was not confined to operational service. However, the VRB noted that the applicant was only relying on a connection between her psychiatric conditions and her operational service in East Timor. Therefore, the VRB did not consider any possible connection between the conditions and her defence service. This assumption was based, it appears, on a written statement by the applicant’s advocate before the VRB which referred only to operational service matters. Also, when the advocate was asked whether there was anything he wished to add or comment about in relation to the written submission, he confined himself only to operational service matters.
The Court considered the AAT appears to have misunderstood the decision in Repatriation Commission v Stafford  FCA 537 and failed to apply the election test posted in Davenport v Repatriation Commission  FCA 930. In the first instance decision in Stafford v Repatriation Commission  FCA 44, Northrop J held that:
…there was but one claim and the one decision of the delegate was to refuse the claim. The application to the Veterans’ Review Board was for review of one decision, namely the “rejection of claim for disability pension”. The Review Board should have reviewed the one decision. It did not do so. It reviewed part only of that decision but in adopting that course, it is impermissible for the Commission to claim now that the Tribunal has no jurisdiction to review the decision of the delegate of the Repatriation Commission because the Review Board had not reviewed part of the matters forming the basis of the decision of the Commission. It would be a strange result if a veteran could be deprived of a right of review by the Tribunal where the Review Board failed to consider parts of the decision being reviewed by it but nevertheless affirmed the decision of the Commission. A veteran should not be compelled to recommence the process seeking a pension in order to have the matter proceed from the Commission, to the Review Board and Tribunal.
Northrop J ordered the matter be remitted to the AAT for further consideration according to law. His Honour’s decision was upheld by the Full Court in Repatriation Commission v Stafford  FCA 537. In the Court’s view, the AAT in the present case had jurisdiction to deal with the section 70 claims which had been raised before the delegate but not considered by the VRB. No basis had been established for distinguishing Stafford.
In Davenport, Lee J held that the VRB was required to consider all medical conditions covered by the application to it unless the claim had unambiguously been withdrawn – due to the requirement in section 139(2) of the VEA that “in reviewing a decision of the commission, [the VRB is] to satisfy itself with respect to, or to determinate, as the case requires, all matters relevant to the review”. The Court considered the advocate’s statements to the VRB did not amount to an unambiguous withdrawal of those claims which remain undetermined by the VRB (conceded by the Commission), and those claims should be considered and dealt with by the AAT.
The Court considered the orders proposed by the parties should be made, and it should be further ordered and declared that the AAT has jurisdiction to deal with all outstanding issues raised by the applicant’s original claim to the Commission, whether or not they had been considered by the VRB.
The Court indicated the AAT’s role upon remittal:
… will be to exercise its powers afresh. It will not be bound by the findings made in its earlier decision (including in relation to Ms Warren’s diagnoses). Nor, of course, will it be bound by the diagnoses earlier determined by the VRB. Its task will be to consider all of the material before it, including the medical evidence, and to make a decision as to Ms Warren’s claims in relation to the war-caused and defence-caused injuries or diseases from which she says she suffers.
It was, therefore, appropriate that the order remitting the matter to the AAT not be confined in its terms.
The Court’s Decision
The appeal was allowed.
For background information, please refer to the Practice Notes concerning the decisions of the Federal Court in McKinley v Repatriation Commission  FCA 145 and the Full Federal Court in Warren v Repatriation Commission  FCAFC 159. The matter will now return to the AAT to be considered by the AAT for the third time.