Budworth v Repatriation Commission - [2001] FCA 317 - FCA 2001 case summary — Zoe

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Budworth v Repatriation Commission

[2001] FCA 317

Federal Court of Australia|2001-03-29|Before: Madgwick J

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Court

Federal Court of Australia

Decision date

2001-03-29

Before

Madgwick J

Source

Original judgment source is linked above.

Judgment (18 paragraphs)

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REASONS FOR JUDGMENT HIS HONOUR: 1 The applicant appeals from the decision of the Administrative Appeals Tribunal ("the AAT") constituted by a Deputy President, given on 23 February 2000, pursuant to s 44 of the Administrative Appeals Tribunal Act 1986 (Cth) ("the AAT Act"). The AAT affirmed two decisions, one given by the Veterans' Review Board ("the VRB") and one made by the Repatriation Commission ("the Commission"), and assessed the rate of pension payable from 10 February 1998 as nil until 18 October 1992 and at relatively modest rates thereafter.

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Background to the decision reviewed by the AAT 2 The applicant had "eligible war service" from 19 December 1972 to 22 September 1977. During this time the applicant rendered "operational service" for Australia in Vietnam during his five voyages there on HMAS Sydney and HMAS Melbourne. Accordingly, the applicant falls within the definition of a "veteran" in s 5C(1) of the Veterans Entitlements Act 1986 (Cth) ("the Act"). 3 On 10 May 1988, the applicant lodged a claim for a pension with the Department of Veterans' Affairs. He described the disabilities for which he was claiming a pension, as "hearing loss, constant back pain, severe nerves, insomnia, arthritis and headache". 4 On 3 November 1989, a delegate of the Commission gave his statement of reasons, in which he said: "After considering all of the available material…I am of the opinion that the material before me raises a reasonable hypothesis connecting post-traumatic stress disorder with chronic pain syndrome with the veteran's operational service in that this condition may be related to his experience during that service. … In these circumstances I am not satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that post-traumatic stress disorder with chronic pain syndrome was war-caused. I have determined that this condition was war-caused as from 10 February 1988…" The delegate assessed the degree of war-caused incapacity as 80% and assessed a pension to be payable at 80% of the "General Rate" as from 10 February 1988. 5 On 5 December 1989, the applicant lodged an application for a review of that decision with the VRB. Among other matters, the applicant was seeking an increase in the Commission's assessment of the percentage rate of pension granted to him. On 30 August 1993, the hearing of this application was adjourned by the VRB pursuant to s 152 of the Act following a request by the VRB to the Secretary of the Department of Veterans' Affairs to arrange for the making of further investigations in relation to the applicants' claim. 6 On 9 November 1993, a Commission delegate made a decision on a further claim by the applicant in relation to additional disabilities. The Commission determined that the disability thus claimed as "anxiety attacks" was the same disability previously determined to be war-caused under a diagnosis of post traumatic stress disorder ("PTSD") with chronic pain syndrome. However, the Commission did find that there were additional disabilities that were war-caused within the meaning of s 9 of the Act. As a result the applicant's claim was granted by the Commission and the applicant's pension was increased to the Special Rate (T&PI) with effect from 18 October 1992. 7 On 4 April 1995, the VRB heard the application for review lodged by the applicant that had been previously adjourned (see para 5 above). The VRB decided that the applicant did not satisfy the criteria for a diagnosis of PTSD as set out in the well known psychiatric manual, the "Diagnostic and Statistical Manual of Mental Disorders, 4th Edition" ("DSM IV"). As a result of this finding, the VRB set aside the decision of the Commission of 3 November 1989 and substituted for it the VRB's own decision that the applicant's pension be assessed at nil with effect from 10 February 1988, and at 90% of the General Rate with effect from 18 October 1992. 8 On 6 July 1995, the applicant lodged an application for review of this decision with the AAT. 9 On 6 August 1996, under s 31(6) of the Act, a delegate of the Commission reviewed the Commission's decision of 3 November 1989 (see para 4 above). The findings of the Commission were that: "a. there is no sufficient ground for determining that the veteran's condition of passive aggressive disorder with moderate depression was war-caused; and b. the decision of 3 November 1989 by the Repatriation Commission to accept post traumatic stress disorder with chronic pain syndrome as war-caused should be cancelled with effect from 10 February 1988 in accordance with sub-sections 31(6) and (7) of the Veterans Entitlements Act 1986." The effect of these decisions was to expose the applicant to a liability to repay a substantial amount of the pension that he had previously received. The applicant lodged an application for review of this decision with the VRB on 2 September 1996. This application was heard by the VRB on 18 December 1996 and it affirmed the decision of the Commission. 10 On 17 January 1997, the applicant lodged an application for review of this decision with the AAT.

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The AAT's decision 11 On 23 February 2000, the AAT affirmed both of the VRB decisions under review relating to PTSD. The AAT also determined that the rate of pension be nil with effect from 10 February 1988 until 18 October 1992, that the rate of pension thereafter be 90% of the General Rate until 1 November 1997, and thereafter that it be 100% of the General Rate. 12 The evidence before the Tribunal included the following: · the applicant was born on 7 September 1947 and was an only child; · when the applicant was 8 or 9 years old, his mother died after she tripped over his schoolbag, and he continues to feel guilty about it; · the applicant joined the Navy at age 17 after being driven out of his home by constant arguments with his stepmother; · the applicant saw intermittent operational service in Vietnamese waters on board HMAS Sydney and HMAS Melbourne between 27 May 1965 and 18 December 1972; · his first tour of duty was on HMAS Sydney in May 1965. He was told that the ship would be at 1st degree of readiness when it reached Vietnamese waters, one stage less than action stations. He was told to be wary of snipers whilst on deck. HMAS Sydney was anchored off Vung Tau for 3 or 4 days. On two occasions, for a few hours each, the applicant was detailed to sentry duty. On these occasions, he was apprehensive and looked for enemy divers in the water or anything drifting towards the ship. He felt responsible and "scared"; · the applicant made two trips on HMAS Melbourne in 1966 as a steward attached to the Fleet Air Arm. On one occasion there was an accident in which a pilot was killed. The applicant was detailed to pack the kit of the deceased pilot and found this distressing; · in 1971, the applicant decided he "had had enough of animosity and of taking young fellows and bringing old men back" and deserted ship in Adelaide. He flew to Melbourne and worked in a warehouse for 3 or 4 months. He was apprehended after about 12 months and was placed in cells on HMAS Sydney. A disciplinary hearing merely stopped his leave for 30 days and deducted certain pay; · the applicant had two further voyages to Vietnam in 1972 on HMAS Sydney. On one of these trips he heard a loud noise which alarmed him and he thought the ship was under attack, but it was only a scare charge. On another occasion, the applicant recalled the ship re-anchoring much closer to shore than usual and he saw helicopters taking off and bombers strafing nearby hills which caused him concern and alarm and he did not feel safe; · during shore leave, he experienced a number of problems with civilians who were opposed to the Vietnam War. He was quite shocked by this and it aroused feelings of guilt and association with death; · the applicant had suffered from a number of distressing incidents in his private life. In the 1960s a friend died on a scuba dive when helping the applicant and he considered he had some responsibility for this death and it left him distraught and feeling guilty about causing death. He was also required in 1974 to consent to the withdrawal of his father's medication after he had suffered a number of strokes; this resulted in his father's death. The applicant said he was devastated and, once again, felt responsible and guilty for inducing death. The applicant has also had had three marriage breakdowns and a great deal of difficulty adjusting to civilian life after the Navy; and · the applicant's memories of Vietnam are a mixture of shame and guilt. His recollection of service in Vietnam was one of a frightening experience. He suffers from nightmares about his Vietnamese service, particularly if he sees anything relating to war on television. 13 The Deputy President dealt with a number of issues relating to the evidence as to what took place in Vietnam. A particular claim was put forward by the applicant in support of his initial application for a pension, which was heavily relied upon by his doctors to support the diagnosis of PTSD and also by the delegate of the Commission when the applicant's claim was first accepted. This claim was that, one night whilst he was on sentry duty off the Vietnamese coast, he had received an order to shoot a "booby-trapped" floating body in an Australian uniform, however, the body exploded before he did anything. This evidence was called into question by the VRB in its decision of 4 April 1995. The second VRB decision of 18 December 1996 similarly found that "the incident of the booby-trapped body did not occur". The Deputy President noted that: "On 3 November 1989, the Repatriation Commission granted an application for pension accepting that Mr Budworth was suffering from [PTSD] with chronic pain syndrome and that his condition was a war-caused disease. The decision was based largely on the psychiatric effects said to have followed from an event, which had occurred during Mr Budworth's service with the

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Royal Australian Navy (the exploding body event). In a report of 31 August 1989 Dr Roberts, a psychiatrist, referred to this incident as a fact transcribed during the history she took. It was one of a number of factual errors in the report, including the number of trips to Vietnam said to have been taken by the applicant." In relation to the floating body the Deputy President stated: "… for a long time [the applicant] did not know whether [the booby-trapped body incident] happened. Now he thinks it is only part of a nightmare sequence. In earlier application and in interviews with psychiatrists he had asserted the existence of this incident as fact. He now accepts that in fact it did not occur. He could not remember when he first started having the imploding body dream. He agreed that he had told psychiatrists of the incident but denied that he did not tell, for example, Dr Knox that it was a dream. He asserted that he did, in fact, tell Dr Dent that he did not know whether it was a dream or not. This accords with Dent's recollection." In regard to the applicant's evidence as to his service, the Deputy President noted: "Mr Budworth's recollections of Vietnam are, in certain respects, not in accordance with facts appearing in contemporary records. Evidence was given by Professor Grey (whose report was not questioned) which indicates that some of Mr Budworth's recollections are at fault. … It is clear that Mr Budworth was in Vietnam for no more than 5 days over a period of 7 years. On each occasion, he was in Vung Tau moreover which, according to Professor Grey, was a "safe" part because there was little enemy mainforce activity around the town itself. Contrary to Mr Budworth's recollection about the distance from shore, the records show that the Sydney was always anchored in the outer anchorage…" 14 Having dealt with the evidence, the AAT's Statement of Reasons included the following: "Statements of Principles promulgated pursuant to subsection 196B(2) are statutory instruments. There is one such statement … dealing with this disorder. Because of the age of the claim, however, it has no statutory application in the present circumstances. It does, however, refer to the Diagnostic and Statistical Manual of Mental Disorders 4th Edition published by the American Psychiatric Association in 1994 (DSM IV) and adopts much of the relevant part of the manual. A Statement of Principles as a statutory instrument is a document susceptible of legal interpretation. Diagnostic features in DSM IV do not have the same legal standing. Nevertheless, I consider it appropriate to refer to those features as an indication of current learning in identifying and diagnosing the disorder of which Mr Budworth complains. The diagnostic features are not to be treated like a legal instrument. They do, however, establish a standard as well as a Guideline to assist in establishing the existence of the disorder. … Having regard to these standards, it appears to me that none of the traumatic events identified by Mr Budworth is in any way comparable with the events contemplated in DSM IV. The trauma suggested by him have changed from time to time. It was not until the hearing before this Tribunal that many of the details of Mr Budworth's alleged experience were recorded. Certainly from his evidence it would seem that much of the history given to the three examining psychiatrists upon whom he principally relies (Drs Roberts, Knox and Dent) was incomplete or misleading. I did not form the impression that Mr Budworth has lied to his examiners or to this Tribunal. But I consider that his other psychological symptoms require that the accounts which he has given from time to time be treated with caution, however sympathetically one may approach them. … The evidence before me would not even support a finding that there was a sufficiently intense subjective reaction of fear, whether or not an objective traumatic stressor existed. … I have concluded as a matter of fact, that there was no extreme traumatic stressor and that, accordingly, there was no scope for the application of DSM IV in a diagnosis of PTSD. To the extent that Drs Dent and Knox arrived at a conclusion to the contrary, they were relying on facts, the like of which were not in contemplation of the authors of DSM IV. Dr Dent freely acknowledged that he had departed from that standard. I do not feel that I should exercise the same liberty. … There may have been other factors in Mr Budworth's life that could account for any disorder that is now manifest. His feeling of guilt and depression may be accounted for by lingering effects of the death of his mother and father, his step-mother's behaviour to him, the diving incident and the suicide of the club official. None of these, however, are of the order contemplated by DSM IV and are obviously not war related. However, his psychological condition should be diagnosed, explained or categorised it cannot, on any view, be correctly described as PTSD. The factual triggers for such a disorder simply do not exist." (Emphasis added)

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Was there a failure to consider the discretion not to reduce the pension retrospectively? 15 It was submitted by the applicant that, although the VRB's decision of 4 April 1995 assessed a rate of pension to which he was entitled from 10 February 1988 and from 18 October 1992, it did not and could not specify the date from which a reduction in pension would take practical effect. Counsel for the applicant submitted that, under s 157(2)(b) of the Act, the VRB was obliged to remit the matter to the Commission to fix, in accordance with that provision, the date from which the VRB's decision would operate. In making such a determination, the Commission is required to exercise its discretion, under s 31(7) of the Act, as to whether to backdate a reduction in pension. Section 157 of the Act provides: "(1) In this section: Board's decision, in relation to a review by the Board [that is, the VRB] of a Commission's decision, means the decision of the Board, upon its review of the Commission's decision, setting aside the Commission's decision and substituting another decision for it or varying the Commission's decision, but does not include a decision of the Board affirming the Commission's decision. Commission's decision, in relation to a review by the Board, means a decision of the Commission that has been reviewed by the Board. substituted decision means a decision made by the Board in substitution for a decision of the Commission that has been set aside by the Board upon its review of that decision of the Commission. varied decision means a decision of the Commission as varied by a decision of the Board upon its review of that decision of the Commission. (2) Where the Board, upon its review of a decision of the Commission, sets aside that decision and substitutes another decision for it, or varies that decision: … (b) if the substituted decision, or the varied decision, as the case may be, is a decision of a kind specified in subsection (3) - the Board shall remit the matter to the Commission to fix the date as from which the Board's decision is to operate, being: (i) if the Board's decision was made for a reason set out in subsection 31 (7) - the date on which the Board's decision was made or an earlier or later date; or (ii) in any other case - the date of the first available pension pay-day occurring after the date on which a copy of the Board's decision is served on the Commission under section 140; … (3) The kinds of decisions specified in this subsection are: (a) a substituted decision or a varied decision that has the effect of reducing the rate at which a pension is to be paid (not being a pension that is suspended); (b) a substituted decision that has the effect of suspending a pension (not being a pension that has been cancelled or is suspended); and (c) a substituted decision that has the effect of cancelling a pension (not being a pension that is suspended)." (Emphasis added) 16 Section 31 of the Act, so far as presently relevant, provides: "(6) Where the Commission is satisfied that: (a) having regard to any matter that affects the payment of a pension … being a matter that was not before the Commission, the Board or the Administrative Appeals Tribunal, as the case requires, when the decision to grant the pension … or a decision to vary the rate of the pension … was made; (b) by reason of a refusal or failure of any person to comply with a provision of this Act; [or] (c) by reason of a refusal or failure of a veteran to comply with a notice served on the veteran under subsection (5A) or with a request made under paragraph 32(1)(c); … … a pension … should be cancelled or suspended or is being paid at a higher rate than it should be or, in a case to which paragraph (d) applies, a pension is being paid at a higher rate than it should be, the Commission may, by determination in writing, cancel or suspend or decrease the rate of the pension … or decrease the rate of the pension, as the case may be, with effect, subject to subsection (7), from the day on which the determination was made or such later day as is specified in the determination. (7) Where a determination is made under subsection (6): (aa) by reason of the Commission having regard to a matter that affects the payment of a pension … in the circumstances specified in paragraph (6)(a); or … (b) by reason that an amount has been paid by way of pension … that, but for the false statement or misrepresentation of any person, would not have been paid; a date earlier than the date of the determination may be specified in the determination as the date as from which the cancellation, suspension or decrease, as the case may be, is to take effect."

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17 Although it was accepted that the VRB may not have expressly complied with s 157(2)(b), the Commission did deal with the issue of backdating in its decision of 6 August 1996. At the conclusion of his reasons, the Commission delegate stated that he was satisfied that the applicant's pension entitlements should be cancelled with effect from 10 February 1988 in accordance with ss 31(6) and (7). 18 Before the AAT, the parties had agreed on the methods by which the applicant's pension should be assessed over the assessment period. However, what remained in contention was whether the AAT should take a further step of retrospectively reducing the applicant's pension when giving effect to any lower assessment rate, upon a revision of the rate. 19 The AAT noted in its reasons for decision that "if the princi[pal] issue is not decided in the applicant's favour, it will also become necessary to decide the correct or preferable date of effect of the decision to revoke the acceptance in 1989 of PTSD with chronic pain syndrome". However, after determining the principal issue against the applicant, the AAT failed to go on to consider the correct or preferable date of effect of its decision to uphold the decision of the VRB to revoke the acceptance in 1989 of PTSD. The AAT concluded by stating: "In the event of a finding of this nature, the parties reached agreement as to appropriate rates of pension to be paid. That agreement is reflected in the terms of my formal decision attached to these reasons." 20 The decision merely contained the following: "2. The rate of pension will be nil with effect from 10 February 1988 until 18 October 1992. 3. The rate of pension thereafter will be 90% of the general rate until 1 November 1997. 2. The rate of pension thereafter will be 100% of the general rate." 21 It was accepted by the parties and the AAT that if the AAT determined, as it did, that the applicant's pension should be reduced, then it needed, as an active exercise of a discretion, to determine from what date such a decision was to take effect. It seems clear that the AAT failed to do this. Counsel for the respondent suggested that the measure of agreement between the parties on the methodology of calculations had had the inadvertent effect of diverting the AAT's mind away from this question, and this seems quite likely to have been so. 22 The decision whether to specify a date earlier than the date in the determination is discretionary. It was submitted by counsel for the applicant, and not contested by counsel for the respondent, that there were a number of factors that the AAT should have considered before it chose whether to exercise the discretion given to it by s 31(7) to backdate the reduction in the rate of the applicant's pension. It was indeed conceded before the AAT by the respondent that, if the AAT found that the applicant's psychiatric problems had led him to make the claims he did innocently, this would be a factor going to the exercise of the AAT's discretion to not backdate the decision to reduce his pension. The AAT noted in its reasons that it does "not form the opinion that Mr Budworth has lied to his examiners or to [the] Tribunal". It is therefore clear, that the date from which the decision to reduce the applicant's pension should take effect, was a live issue which the AAT should have considered. The AAT appears however, to have reached a conclusion without a consideration of the relevant factors going to the exercise of its discretion. 23 A Full Court of this Court observed in Grant v Repatriation Commission (1999) 57 ALD 1 at 7 that: "An inquisitorial review conducted by the AAT … is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it." This was a central issue in the matter, taken up by the parties, and the failure by the AAT to give it any consideration was an error of law; see also The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing & Community Services (1992) 39 FCR 225 at 231-2.

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Standard of proof to be applied by the AAT 24 The applicant submitted that the AAT had applied an incorrect burden and standard of proof in determining whether or not the applicant had a disease for which he was entitled to receive a pension. The applicant contends that the AAT erroneously applied the civil standard of proof prescribed in s 120(4) of the Act, rather than the "reverse criminal" standard in s 120(1). 25 It is necessary to consider the structure of the Act, so far as is relevant. The term "disease" is defined in s 5D: "(1) In this Act, unless the contrary intention appears: … disease means: (a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or (b) the recurrence of such an ailment, disorder, defect or morbid condition; but does not include: (c) the aggravation of such an ailment, disorder, defect or morbid condition; or (d) a temporary departure from: (i) the normal physiological state; or (ii) the accepted ranges of physiological or biochemical measures; that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels). (2) In this Act, unless the contrary intention appears: (a) a reference to the incapacity of a veteran from a war-caused injury or a war-caused disease ; or (b) a reference to the incapacity of a person who is a member of the Forces, or a member of a Peacekeeping Force (as defined by subsection 68 (1)), from a defence-caused injury or a defence-caused disease ; is a reference to the effects of that injury or disease and not a reference to the injury or disease itself." 26 Section 9 provides that a disease contracted by a veteran shall be taken to be a war-caused disease if it was contracted during, or arose out of, eligible war service rendered by the veteran. Section 13(1) provides an entitlement to a pension: "Where: (a) the death of a veteran was war-caused; or (b) a veteran has become incapacitated from a war-caused injury or a war-caused disease; the Commonwealth is, subject to this Act, liable to pay: (c) in the case of the death of the veteran - pensions by way of compensation to the dependants of the veteran; or (d) in the case of the incapacity of the veteran - pension by way of compensation to the veteran; in accordance with this Act." 27 Section 14 deals with the making of a claim for a pension: "(1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3). (2) Where a determination under this Act is in force determining that any incapacity from which a veteran is suffering resulted from war-caused injury or war-caused disease, or both, but a pension was not granted to the veteran on the ground that the extent of the incapacity was insufficient to justify the grant of a pension, subsection (1) does not apply to a claim for a pension in respect of that incapacity. (3) A claim for a pension: (a) shall be in writing and in accordance with a form approved by the Commission; (b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and (c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b). (4) Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim." 28 Section 17 requires the Departmental Secretary to investigate claims and put them before the Commission "for its consideration and determination" along with all relevant materials. 29 Section 18 provides, so far as is presently relevant: "(1) It is the duty of the Commission in considering a claim or application submitted to it, to satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the determination of the claim or application." 30 Section 19 further explains the Commission's role in relation to claims: "(1) Where a claim or application is submitted to the Commission in accordance with sub-section 17(2), the Commission shall: (a) consider all matters that, in the Commission's opinion, are relevant to the claim or application; and (b) subject to this section, determine the claim as provided by subsection (3) or the application as provided by subsection (4). (2) Without limiting the generality of paragraph (1)(a), the matters that the Commission may consider include: (a) the evidence and documents that were submitted with the claim or application in accordance with subsection 17(3); (b) any evidence subsequently submitted to the Commission in relation to the claim or application; and (c) any evidence, documents or other material furnished to the Commission under section 32. (3) The Commission shall determine a claim for a pension as follows: (a) first, the Commission shall determine whether the claimant is entitled to be granted a pension in respect of: (i) the incapacity of a veteran from war-caused injury or war-caused disease, or both; or (ii) the death of a veteran that was war-caused; (b) then, if the Commission determines that the claimant is so entitled, the Commission shall proceed as set out in subsection (5). (4) The Commission shall determine an application for a pension at an increased rate in accordance with subsection (5). (5) Where paragraph (3)(b) applies in respect of a claim or subsection (4) applies in respect of an application, the Commission shall assess … [the appropriate pension rates] …" 31 That the role of the Commission is an inquisitorial one is further confirmed by its procedures and powers. Section 32 provides: "(1) Subject to sub-section (2), the Commission may, for the purposes of its consideration of a claim submitted to it in accordance with sub-section 17 (2) or of its review under section 31 of a decision in relation to a pension …:

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(a) summon a person to appear before the Commission to give evidence and produce such documents (if any) as are referred to in the summons; (b) take evidence on oath or affirmation; (c) request: (i) in the case of consideration of a claim - the claimant or the Secretary; or (ii) in the case of a review under section 31 - a person likely to be affected by the review or the Secretary, to furnish to the Commission material believed to be under his or her control and relevant to the determination of the claim, or the review of the decision; and (d) request: (i) in the case of consideration of a claim - the claimant; or (ii) in the case of a review under section 31 - the person likely to be affected by the review, to attend before the Commission for a discussion of the claim, or of the review, as the case may be, or to discuss the claim, or the review, as the case may be, with the Commission by telephone. (2) Subsection (1) does not authorize the Commission to summon: (a) for the purpose of its consideration of a claim - the claimant; or (b) for the purpose of a review under section 31 - a person likely to be affected by the review, to appear before the Commission to give evidence or to produce documents. (3) Where a claimant requests the Commission for an opportunity: (a) to attend before the Commission and discuss the claim with the Commission; or (b) to discuss the claim with the Commission by telephone the Commission shall, if it is of the opinion that the request is in all the circumstances reasonable, comply with the request." 32 Section 119 provides: (1) In considering, hearing or determining, and in making a decision in relation to: (a) a claim or application; … the Commission: (f) is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just; (g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and

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(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to- (i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and (ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by sub-section 68 (1), was not reported to the appropriate authorities." 33 The standard of proof to be applied in determinations of a claim for a pension is governed by s 120, which 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

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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." 34 In its Reasons for Decision, the AAT stated: "The standard of proof to be applied in determining whether a disease was war-caused is set out in section 120. Before applying the appropriate subsection, it is necessary to determine whether or not the disease, which is the subject of the claim, exists. This determination is to be made on the balance of probabilities (Repatriation Commission v Cooke 160 ALR 17). … However, his psychological condition should be diagnosed, explained or categorised it cannot, on any view, be correctly described as PTSD. The factual triggers for such a disorder simply do not exist. That being so, it is not necessary to consider the application of subsection 120(1). Unless the claimed condition exists, one cannot say whether it is war-caused. In my view, it does not exist." 35 The question of the standard of proof to be applied when making determinations as to the existence of a mental disease and whether it is war-caused was considered by a Full Court of this Court in Repatriation Commission v Cooke (1998) 90 FCR 307. The Court said: "…the issue whether a disease exists, is to be decided to the reasonable satisfaction of the Commission. In other words, s 120(1) and (3) assume the present existence of a relevant condition, in this case a disease. Section 120(1) specifies the standard of proof for the determination whether or not that disease relates to the operational service rendered by the veteran… The work of each subsection is to provide the standard of proof for establishing a causal connection between disease and service. … …the task at hand when deciding the incapacity claim is, initially, whether there is or was a disease. The evidence is far more readily on that issue (in the main medical evidence one would suppose) available than matters of war-causation which involve assessment of events which may have taken place as long ago as half a century. It makes very good sense, in our opinion, to apply, as s 120(4) of the Act requires, a civil standard of proof to the former question and the more liberal reverse criminal standard of proof to the latter question" (Emphasis added) However, the parties differed as to what propositions the judgment in Cooke stands for. 36 Counsel for the applicant submitted that the issue which must be determined according to the civil standard is whether or not a disease exists; however, if any issue relating to the diagnosis of that disease is dependant on the hypothesis as to its connection with operational service, following Cooke, that must be determined on the reverse criminal standard. Counsel for the respondent submitted that Cooke does not stand for the proposition that the balance of probabilities test should apply merely to the determination of whether the applicant suffers a disease generally but rather what must be determined according to the civil standard is the initial question of whether a disease exists and this question properly is whether the disease claimed exists, not whether there is at large a disease of the kind claimed. 37 The definition in s 5D of the Act of "disease" refers to any physical or mental ailment, disorder, defect or morbid condition, and it is clear that the first question that the AAT needs to ask is whether or not the applicant suffers from a disease. It is trite that the Act is beneficial legislation and should be construed accordingly. When the threshold requirement is that the veteran be suffering from a disease, this should not be interpreted to mean necessarily a disease having a particular medical description which may be claimed to exist. Claimant veterans are not necessarily insightful, articulate, legally advised, medically advised or, in either respect, well advised. Veterans are not to be defeated because they or their advisors inadequately or incorrectly describe their diseases, whether or not they or their advisors resort to medical labels. A claimant whose advisors offer one diagnosis is not to be defeated if the decision-maker prefers another, provided that there is a disease and there is some reasonable basis for thinking that it is war-caused. No doubt it is with considerations such as these in mind that ss 14, 17, 19, 32 and 119 take the form they do. 38 I do not, of course, mean that commonsense should be abandoned in this matter. If a veteran claims to have a "nervous" condition and a particular psychiatric diagnosis is offered by his/her advisors, neither the Secretary nor the decision-maker need be concerned to investigate tonsillitis. But, in a case like the present, the inquiry should be: does this claimant have any emotional or mental disorder or condition that would fall within the broad range of maladies apt to be comprehended by the lay description employed in the claim form and/or of which the particular diagnosis, then or later offered, is an example. 39 I agree with the submissions of the applicant that Cooke does not stand as authority to the contrary. Whether a matter is one of diagnosis or one of causation will not necessarily be capable of resolution by a "bright line" test. The diagnosis of a particular condition may be dependent on its supposed wartime causation, as appears to be the situation in this case. In such circumstances, where questions of such causation are themselves bound up in the question of diagnosis of a particular disease, the reverse criminal standard should be applied if on the balance of probabilities the decision-maker finds that a disease exists. The Full Court in Cooke saw difficulties of proof of such causational issues as underlying the rationale for the more liberal approach. On the respondent's submissions, it would be possible, in effect, to determine on the balance of probabilities that claimed symptoms, given a particular medical label by doctors and accordingly so labelled by the applicant, were not war-caused because causation goes to diagnosis, when had that particular label not been used by the applicant, the question whether the symptoms (assuming they were not so negligible as not to comprise an "ailment" or a "disorder" (c.f. s 5D definition, words of large import)) were war-caused would require proof to the contrary beyond reasonable doubt. So much is unlikely to have been intended by the legislature to turn upon so little. 40 In my opinion, what the AAT did was to refuse the claim on the basis of, as it were, a "rolled-up" issue of causation, in that the AAT found that nothing that the applicant experienced whilst on service would give rise to PTSD and therefore that he did not suffer that particular disease. The only stressors said to give rise to PTSD were alleged war-related events. In such a circumstance, where a decision-maker under the Act is actually obliged to look to the issue of causation to determine whether the diagnosis is correct, there is, as I have indicated, much to be said for the view that it must apply the reverse criminal standard. 41 In this case, it appears that the applicant has some sort of mental disorder and, on a fair reading of its reasons, this was accepted by the AAT. The AAT acknowledged that there was medical evidence that suggested that the applicant's psychological symptoms could be explained by some category of psychological illness other than PTSD. The AAT also stated, in its concluding remarks: "[h]owever his psychological condition should be diagnosed, explained or categorised it cannot, on any view, be correctly described as PTSD". The reasoning of the AAT, as I understand it, is that although the applicant may, and even probably appears to, suffer some type of mental ailment, when regard is had to his actual experiences during his Vietnam service, there is no evidence of a sufficiently intense subjective reaction of fear or of an extremely traumatic stressor to enable the diagnosis of PTSD, the disease his advisors claimed that he had. This clearly goes to issues of causation and should have been determined on the reverse criminal standard.

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A duty to consider diseases other than PTSD? 43 It was submitted for the applicant that, because the question of alternative diagnosis became critically important to the case, on the AAT's own path of reasoning, its failure to address an alternative diagnosis for the applicant's symptoms was legally erroneous, even if the AAT's omission was attributable to the manner in which the parties conducted their cases. It was claimed that, as it was accepted by the AAT that the applicant had some kind of a mental disorder, the AAT had a duty to consider whether this was war-caused and not simply to limit itself to whether that disorder was PTSD although that was, at least, the primary way in which the applicant argued his claim. 44 As counsel for the respondent submitted, it is important to keep in mind exactly what the AAT was doing in this matter. The Commission had initially determined that the applicant had PTSD for which he was entitled to a pension. When the pension was subsequently cancelled by the Commission under s 31(6) of the Act, that determination dealt with all the symptoms claimed by the applicant which had been incorporated into the diagnosis of PTSD with chronic pain disorder. It was that revocation, upheld by the VRB, that was before the AAT for review. (The AAT was also called upon to review the VRB's decision to reduce the rate of pension for PTSD to nil, but this is not presently relevant.) It is true that the decision under review was the decision of the Commission to revoke the entitlement for PTSD. However, it must also be remembered that the AAT in conducting its review "stands in the shoes" of the decision-maker (see Repatriation Commission v Maloney (1993) 45 FCR 563 at 568 and ss 43(1) and (6) of the AAT Act) and is able to determine the matter de novo, in the process of making the "correct or preferable decision" to stand as the decision of the primary decision-maker: see Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 at 419 per Bowen CJ and Deane J and Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425 per Brennan J. 45 As indicated earlier (at para 37), there is no requirement that a veteran making a claim under s 14 of the Act should attempt to put a medical label on the malady said to constitute a "disease". It is enough if the claimant suffers from a disease. However, the applicant had initially been successful in his claim, basing it, on his medical advice, on the hypothesis that what was wrong with him was PTSD and that this condition was war-caused. Such also was the primary way in which his case was put to the AAT in its review of this case. Two of the applicants' doctors stated that the applicant had PTSD and one of them, Dr Dent, stated that PTSD was the only available diagnosis. A different diagnosis was proposed by Dr Spragg, a physciatrist engaged by the Secretary, namely a passive-aggressive personality disorder, unrelated to the applicant's service. It was submitted by counsel for the applicant that although the claim was primarily for PTSD, that had not closed off the alternative possibility of the applicant suffering from a disease other than PTSD. 46 It is fair to say that it was a case of PTSD which the applicant urged before the AAT. In an exchange between the Deputy President and counsel for the applicant, counsel conceded that, although Dr Spragg had suggested that the applicant might be suffering from something other than PTSD, there was no actual evidence of any "qualified and learned [psychiatric] diagnosis" other than PTSD. However, the context was that counsel had stressed that the applicant "is claiming nerves" and that "it might not be PTSD but he certainly has a serious psychiatric condition. 47 In any case, it is evidence of a disease as defined by the Act that is in question, not of some particular, precisely defined medical condition. There was ample evidence that the appellant had some kind of mental malfunctioning that could be regarded as a disease comprehended by his claim (see para 3 above). If there is material before a decision-maker which positively suggests that a veteran may be suffering from a disease then, pursuant to the sections set out above, the primary decision-maker has a duty to determine whether the veteran does have a disease, even though this may impose an onerous task on the decision-maker. 48 As the Full Court put it in Grant: "[the AAT] is obliged not to limit its determination to the 'case' articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant: see Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247 at [23] and Satheeskumar v Minister for Immigration & Multicultural Affairs [1999] FCA 1285 at [15]." 49 Where the proceedings are such as to be closely analogous with curial adversary processes, in general, an administrative body is not bound to inquire at large but may, as a practical matter, look to an applicant's, case as it is put. Here, however, the AAT derived its jurisdiction froms 175(1) of the Act which provides: "Where a decision made by the Commission has been reviewed by the Board upon a request made under section 135 and affirmed or set aside, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review: (a) of the decision of the Commission that was so affirmed; (b) of the decision of the Commission as so varied; or (c) of the decision made by the Board in substitution for the decision so set aside; as the case may be." As the VRB had affirmed the relevant decision of the Commission, pursuant to s 175(1)(a), it was the decision of the Commission which the AAT was reviewing meaning that the AAT stood in the shoes of the Commission. The nature of the decision under review is thus not one to which the constraints of curial adversarial processes are apposite; e.g. see ss 18(1) and 32 set out above. 50 An error of law may arise despite the fact that the error was caused by the conduct of the case, or as a result of a concession made by a party before the AAT; see Kuswardana v Minister for Immigration & Multicultural Affairs (1981) 35 ALR 188 and Ferriday v Repatriation Commission (1996) 69 FCR 521. Therefore, in these circumstances, any incorrect concession by the applicant's counsel about the sufficiency of the evidence did not relieve the AAT of the task of thus considering the matter. 51 The next question, the connection with military service, also requires consideration once there is material such that, in the circumstances, the decision-maker could take the view that it raises a reasonable hypothesis connecting the disease with the service (c.f. s 120(3)). As stated in s 14(4), there is no onus of proof on a claimant and, accordingly, when a claim of a disease is put, even as an alternative, and accepted by the AAT then, standing in the shoes of the original decision maker, it has a duty to consider whether any such disease is war-caused, provided there is material before the decision-maker raising a possible connection

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between the disease and the service rendered: see Gibson v Repatriation Commission [1999] FCA 901 at para 54. 52 In my opinion there was such material before the AAT. It is evident that the applicant had what in more innocent times would have been called "bad nerves" (indeed, the applicant called it "severe nerves" - see para 3 above). He had seen operational service in or very near a theatre of war. While he had had many stressors in his private life it could hardly be said that it was impossible for a responsible decision-maker to perceive a reasonable hypothesis connecting the applicant's service and his condition. 53 A lay tribunal can draw conclusions about, at least, some medical conditions without the benefit of expert medical evidence. In Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 338, Dixon J (in dissent) said: "Tempting as it always is, particularly in matters of bodily health, to argue from a sequence of external events, such reasoning is justified only when positive knowledge or common experience supplies some adequate ground for believing that the events are naturally associated." (Emphases added) That is, a "lay inference" can be drawn from a sequence of events to do with medical knowledge when common experience supplies adequate ground for a belief that a medical condition is associated with an event. Dixon J's approach in Forst was followed in Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303 by Mason J at 310-311, with whom Barwick CJ and Gibbs J agreed. In Tubemakers Murphy J said: "If it is common knowledge that a relationship of cause and effect may exist between certain facts or events, a tribunal of fact does not need expert evidence to enable it to find this relationship in a particular case… An observed sequence of events may therefore lead without expert evidence to a rebuttable presumption of fact, even on medical or other scientific subjects. Although the expressions "common experience" or "common knowledge" are often used, they are intended to embrace or to be used as part of what Rich ACJ referred to in Forst's Case … as a course of reasoning which combines common sense with application of logic to the facts. Where common knowledge and this course of reasoning do not enable the tribunal to find the relationship, expert evidence is necessary. If expert evidence establishes that the relationship is possible (that is, it is a reasonable hypothesis or one consistent with scientific knowledge) the proof to the required standard (civil or criminal) that the relationship existed in the case under consideration may then be achieved by further evidence (expert or non-expert)." Rich AJ had said in Forst: "I do not see why a court should not begin its investigation, i.e., before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person instructed in pathology. When he finds that a workman of the not-so-young standing attempts in a posture calculated by reason of the pressure on the stomach to disturb or arrest the rhythm of the heart a very strenuous task not forming part of his ordinary work and then collapses almost immediately and dies from a heart condition, why should not a court say that here is strong ground for a preliminary presumption of fact in favour of the view that the work materially contributed to the cause of death? From this standpoint the investigation of physiological and pathological opinion shows no more than the current medical views find insufficient reason for connecting coronary thrombosis with effort. Be it so. That to my mind is not enough to overturn or rebut the presumption which flows from the observed sequence of events. If medical knowledge develops strong positive reasons for saying that the lay common-sense presumption is wrong, the courts, no doubt, would gladly give effect to this affirmative information. But, while science presents us with no more than a blank negation, we can only await its positive results and in the meantime act on our own intuitive inferences." 54 In my own opinion, few medical propositions are more securely embedded in common experience than that wartime events often cause psychological trauma. In any case, the AAT ought to have considered whether, as a matter of fact, that is so.

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The use of DSM-IV by the AAT 55 Counsel for the applicant submitted that the AAT made two errors in relation to its use of DSM-IV. Firstly, it was claimed that the AAT placed an impermissible degree of weight on DSM-IV by effectively elevating it to the level of a binding document to be mechanically applied. Secondly it was claimed that, even if the AAT was correct in its application of DSM-IV, the AAT gave an interpretation to it which, as a matter of law, it was incapable of bearing. 56 The Deputy President said: "A Statement of Principles as a statutory instrument is a document susceptible of legal interpretation. Diagnostic features in DSM-IV do not have the same legal standing. … The diagnostic features are not to be treated like a legal instrument. They do, however, establish a standard as well as a Guideline to assist in establishing the existence of the disorder. … For the time being, however, I consider that I should approach the task of establishing the existence of Mr Budworth's disorder with general reference to DSM-IV." 57 The use of DSM-IV was discussed in New South Wales v Seedsman [2000] NSWCA 119, Spigelman CJ said: "The DSM-IV is certainly not written as legislation. It describes, in terms which should be taken as guidelines, rather than strict boundaries, a condition which a clinician may diagnose when certain criteria are met. DSM-IV is not a statutory formulation which a court must construe and decide whether the requirements are satisfied. It is, as its title suggests, a 'diagnostic manual' for clinical use." Such was not in dispute between the parties and the fact that DSM-IV is not a statutory instrument was recognised by the AAT in its reasons. 58 If a decision-maker, not bound to apply a policy, chooses to apply a policy document in the course of his or her decision making and errs in the way that document is applied, there may well be an error of law: see Minister for Immigration, Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189 at 208. However, on a fair reading of the AAT's decision the AAT did not apply DSM-IV in a "mechanical or cookbook fashion" as submitted by counsel for the applicant. 59 The AAT was well aware that it was not to apply DSM-IV as though it was a legal instrument but, rather, took the view that it was an authoritative manual to which the AAT could make reference in determining the applicant's claim. The AAT was entitled to give the manual such weight. The AAT acknowledged that it would consider expert evidence presented to it and was aware of the limitations in using DSM-IV as stated in the introduction to the manual. The AAT examined the evidence of the three doctors against the criteria provided for in DSM-IV and made a finding of fact that the requisite stressors for a diagnosis of PTSD were not present in the applicant's claim and that, for a number of reasons, the findings of Drs Dent and Knox could not be sustained. This finding of fact was open to the AAT. The DSM-IV was not used as a legal barrier against the applicant. It was used by the Deputy President to assist him in determining whether the applicant had a claimed disease, as the Deputy President was required to do under the Act. Accordingly, there was no error of law in the way in which the AAT applied DSM-IV. 60 In relation to the alternative submission, counsel for the applicant claimed that the AAT gave an interpretation to criterion A in DSM-IV which, as a matter of law, it was incapable of bearing. In my opinion, this submission is incorrect. The AAT noted that the type of stressors that the DSM-IV had in mind included "military combat, violent personal assault, being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp". The AAT noted that Dr Spragg had referred to the trauma of the Holocaust, that of prisoners of war working on the Burma-Thailand Railway and prisoners of war in captivity in Changi as examples of extreme traumatic stressors, with which the AAT agreed. Dr Dent had also cited such events as examples of events that could give rise to PTSD. However, read fairly and as a whole, it cannot, in my view, be said that the AAT interpreted DSM-IV as providing that only such extremely traumatic events could give rise to PTSD. In my opinion, it was open for the AAT to interpret an "intense fear" as requiring a high level of reaction and the AAT did no more than this. Therefore, this ground of appeal is not made out.

Budworth v Repatriation Commission

At a glance

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Judgment (18 paragraphs)

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Legislation Cited (4)

Cases Cited (14)

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