Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Meehan v Repatriation Commission [2003] FCA 1371 VETERANS' ENTITLEMENTS – reasonable hypothesis based on a statement of principles - whether generalised anxiety disorder was war-caused Veterans' Entitlements Act 1986 (Cth) ss 120, 120A & 196B Bushell v Repatriation Commission (1992) 175 CLR 408 applied Byrnes v Repatriation Commission (1993) 177 CLR 564 applied Lees v Repatriation Commission (2002) 74 ALD 68 referred to Repatriation Commission v Deledio (1998) 83 FCR 82 applied
JAMES SYDNEY MEEHAN v REPATRIATION COMMISSION N 683 OF 2003 JACOBSON J SYDNEY 28 NOVEMBER 2003
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 683 of 2003
ON APPEAL FROM THE VETERANS' APPEAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: JAMES SYDNEY MEEHAN
APPLICANT
AND: REPATRIATION COMMISSION
RESPONDENT
JUDGE: JACOBSON J
DATE OF ORDER: 28 NOVEMBER 2003
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The Applicant pay the Respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 683 of 2003
ON APPEAL FROM THE VETERANS' APPEAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: JAMES SYDNEY MEEHAN
APPLICANT
AND: REPATRIATION COMMISSION
RESPONDENT
JUDGE: JACOBSON J
DATE: 28 NOVEMBER 2003
PLACE: SYDNEY
REASONS FOR JUDGMENT Introduction 1 This is an appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal ("the Tribunal") affirming a decision of a delegate of the Repatriation Commission ("the Commission") rejecting a claim by the Applicant for a disability pension for post traumatic stress disorder. The Commission rejected the claim because it found that the Applicant's recollection of the events, which were said to have caused the disorder, were unreliable. The effect of the question of law stated in the Notice of Appeal is whether this finding satisfied the standard of proof laid down by s 120(1) of the Veterans' Entitlements Act 1986 (Cth) ("the Act") under which the Commission is to determine that an injury was war-caused unless it is satisfied beyond a reasonable doubt that there is no sufficient ground for making that determination. 2 The proceedings have a long history. The decision of the Tribunal was its third decision on the Applicant's claim. Its first and second decisions were successfully appealed to the Court and remitted to the Tribunal for further hearing. On the third rehearing the Tribunal determined that the material before it, which raised a claim for generalised anxiety disorder ("GAD") based on the Applicant's service in Vietnam, raised a reasonable hypothesis connecting the disability with the circumstances of the Applicant's service in accordance with s 120(3) of the Act. However, the Tribunal was satisfied beyond a reasonable doubt that there was no sufficient ground for determining that the Applicant's general anxiety disorder was a war-caused disease. The Legislation 3 Section 120 of the Act relevantly provides:- (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. … (3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) that the injury was a war-caused injury or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-caused disease; or (c) that the death was war-caused or defence-caused; as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. (4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction. … (6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on: (a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or (b) the Commonwealth, the Department or any other person in relation to such a claim or application; any onus of proving any matter that is, or might be, relevant to the determination of the claim or application. 4 Section 120A(3) provides: (3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196B(2) or (11); or (b) a determination of the Commission under subsection 180A(2); that upholds the hypothesis. 5 Section 196B(2) of the Act relevantly provides for the Repatriation Medical Authority ("the Authority") to determine a Statement of Principles ("SoP") where it is of the view that sound medical-scientific evidence indicates that a particular kind of disease can be related to operational service. The Authority is then to determine an SoP for that kind of disease setting out the factors which must exist, as a minimum, before it can be said that a reasonable hypothesis has been raised connecting the disease with the circumstances of service. 6 The Authority determined a SoP for GAD. It is to be found in Instrument No 48/94 as amended by 275/95. The relevant factors as stated in the instrument are 1(b) and 1(c) which are as follows:- (b) experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder; or
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