Summers v Repatriation Commission [2015] FCAFC 36

Summers v Repatriation Commission [2015] FCAFC 36

The Tribunal erred in law by failing to address and consider whether the applicant met clause 6(a) of the Statement of Principles for Alcohol Dependence and Alcohol Abuse No 1 of 2009, and by misconceiving its task at the third stage of the Deledio process—it erroneously engaged in fact finding rather than considering whether the material pointed to the existence of at least three diagnostic criteria within a 12-month period, thus misunderstanding the standard to be applied under s 120(3) of the Veterans' Entitlements Act 1986 (Cth).

Jurisdiction
Australia
Judgment Date
17 March 2015
Procedural Posture
Federal Court Appeal / Full Court Appeal From a Single Judge
Outcome
Appeal allowed and matter remitted to the Administrative Appeals Tribunal to be determined according to law and the reasons herein.
Legal Topics
["veterans' Entitlements" 'interpretation of Statement of Principles' "application of S 120(3) Veterans' Entitlements Act" "application of S 24(1)(c) and S 24(2)(a) (b) Veterans' Entitlements Act" 'procedural Fairness in Tribunal Proceedings' "onus and Standard of Proof in Veterans' Claims" 'leave to Amend Notice of Appeal']
['defence and War' 'administrative Law'] ["veterans' Entitlements" 'interpretation of Statement of Principles' "application of S 120(3) Veterans' Entitlements Act" "application of S 24(1)(c) and S 24(2)(a) (b) Veterans' Entitlements Act" 'procedural Fairness in Tribunal Proceedings' "onus and Standard of Proof in Veterans' Claims" 'leave to Amend Notice of Appeal']

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Procedural Posture

Federal Court Appeal / Full Court Appeal From a Single Judge

Legal Issues

  1. 1 ['Whether the Tribunal failed to consider the applicability of factor 6(a) of the Statement of Principles for Alcohol Dependence and Alcohol Abuse (SoP)' "Whether the Tribunal misconstrued s 120(3) and/or the applicable SoP under the Veterans' Entitlements Act 1986 (Cth)" 'Whether the Tribunal correctly applied the Deledio process in determining if alcohol dependence was war-caused' "Whether the Tribunal applied the correct test in s 24(1)(c), including the 'alone' test for special rate of pension" 'Whether procedural fairness was denied by failure to address an argument properly raised before the Tribunal']

Ratio Decidendi

The Tribunal erred in law by failing to address and consider whether the applicant met clause 6(a) of the Statement of Principles for Alcohol Dependence and Alcohol Abuse No 1 of 2009, and by misconceiving its task at the third stage of the Deledio process—it erroneously engaged in fact finding rather than considering whether the material pointed to the existence of at least three diagnostic criteria within a 12-month period, thus misunderstanding the standard to be applied under s 120(3) of the Veterans' Entitlements Act 1986 (Cth).

Court Disposition

Appeal allowed and matter remitted to the Administrative Appeals Tribunal to be determined according to law and the reasons herein.

Orders

  • ['Appellant granted leave to further amend the Amended Notice of Appeal by adding ground of appeal 4D(a).' 'Appeal is allowed.' 'Paragraph 2 of the Orders of Justice Mortimer made 12 June 2014 set aside and in lieu order that the Tribunal decision dated 27 June 2013 be set aside in so far as it affirmed the...