Collins v Administrative Appeals Tribunal

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

NEW SOUTH WALES DISTRICT REGISTRY NSD 2114 OF 2006

NEW SOUTH WALES DISTRICT REGISTRY NSD 2115 OF 2006

EMMETT J 10 I have read the reasons of Allsop J in draft form and agree with his Honour's conclusions and the reasons for those conclusions. However, I propose to make some observations of my own. I shall use words and phrases in the way defined by Allsop J. 11 The issue in the two proceedings that are before the Court is whether the Tribunal failed to adopt the approach required by ss 120 and 120A of the Veterans Act in considering a claim for a widows pension under that Act. If the Tribunal did indeed fail to adopt the approach required by ss 120 and 120A, Mrs Collins would be entitled to succeed in either proceeding in having the decision of the Tribunal set aside. 12 The effect of the relevant statutory provisions in the present case may be summarised as follows: · If the Veteran's death was war-caused, the Commonwealth is liable to pay a pension to Mrs Collins - s 13(1). · The Tribunal must determine that the death of the Veteran was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination - s 120(1). · The Tribunal must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the Veteran's death was war-caused if, after consideration of the whole of the material before it, the Tribunal is of the opinion that that material does not raise a reasonable hypothesis connecting the Veteran's death with the circumstances of his war service - s 120(3). · A hypothesis connecting the Veteran's death with the circumstances of his war service will be reasonable only if there is in force a Statement of Principles determined by the Authority that upholds that hypothesis - s 120A(3). · That last provision would not apply to the claim by Mrs Collins if the Authority has neither determined a Statement of Principles nor declared that it does not propose to make such a Statement of Principles in respect of the kind of death met by the Veteran - s 120A(4). 13 It is common ground that there is in force a relevant Statement of Principles in respect of the kind of death met by the Veteran. The dispute concerns the question of whether all of the prerequisites of the relevant Statement of Principles were satisfied. The question in the proceedings is whether the Tribunal adopted a correct approach in resolving that dispute. 14 Thus, the first question is whether the Tribunal, after consideration of the whole of the material before it, was of the opinion that that material did not raise a reasonable hypothesis connecting the death of the Veteran with the circumstances of his war service. Mrs Collins contended that the material raised the following hypothesis connecting the Veteran's death with his war service: · during the Veteran's war service in the Second World War, the ship on which he was serving was sunk by enemy action, as a consequence of which the Veteran experienced a severe stressor; · that experience led the Veteran to develop post traumatic stress disorder; · the Veteran's post traumatic stress disorder had a causative role in his developing hypertension; · the Veteran's hypertension led to the development of ischaemic heart disease; · the death of the Veteran was the result of that ischaemic heart disease. 15 For present purposes, the relevant Statement of Principles determined by the Authority is Statement of Principles Concerning Post Traumatic Stress Disorder (Instrument No 3 of 1993 as amended by No 54 of 2004). By that Statement of Principles, the Authority expressed the view that there is sound medical-scientific evidence that indicates that post traumatic stress disorder can be related to relevant service rendered by a person if at least one of three factors is related to any relevant service rendered by the person. One of the factors is experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder. 16 The first issue, then, is whether the Veteran suffered post traumatic stress disorder within the meaning of the relevant Statement of Principles. For the purposes of the Statement of Principles, post traumatic stress disorder means a psychiatric condition meeting the following description: (A) the person has been exposed to a traumatic event; (B) the traumatic event is persistently re-experienced in one or more of several ways; (C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness as indicated by three or more of seven specified symptoms; (D) persistent symptoms of increased arousal as indicated by two or more of five specified symptoms; (E) duration of the disturbance, indicated by the relevant symptoms set out in (B), (C) and (D), is more than one month; and (F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning. 17 The relevant dispute before the Tribunal concerned the question of whether three or more of the symptoms referred to in (C) and two or more of the symptoms referred to in (D) were exhibited by the Veteran, so as to justify a conclusion that he suffered from post traumatic stress disorder. The controversy in the appeal concerns the manner in which the Tribunal resolved that dispute. 18 The Tribunal was not satisfied that there was a persistent avoidance of stimuli associated with the trauma and a numbing of general responsiveness as required by (C). The seven symptoms referred to in Factor C are as follows: "(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma; (ii) efforts to avoid activities, places, or people that arouse recollections of the trauma; (iii) inability to recall an important aspect of the trauma; (iv) markedly diminished interest or participation in significant activities; (v) feeling of detachment or estrangement from others; (vi) restricted range of affect (eg, unable to have loving feelings); (vii) sense of a foreshortened future (eg does not expect to have a career, marriage, children, or a normal life span)." The Tribunal referred to the evidence concerning the existence of those symptoms and concluded that, while there was some evidence to support the existence of two symptoms, it was not satisfied that the evidence indicated that three or more of the symptoms existed. The Tribunal, however, did not say that it was satisfied beyond reasonable doubt that the symptoms did not exist. 19 The Tribunal was also not satisfied that there were persistent symptoms of arousal as required by (D). The Tribunal adopted a similar approach in dealing with the five symptoms referred to in (D), which are as follows: "(i) difficulty falling or staying asleep;

(v) exaggerated startle response." The Tribunal concluded that only one symptom referred to in (D) had been established. However, the Tribunal did not say that it was satisfied beyond reasonable doubt that none of the others had been satisfied. 20 The Tribunal examined the evidence of two psychiatrists who gave conflicting opinions concerning the presence of post traumatic stress disorder so far as the Veteran was concerned. The Tribunal appears to have weighed that evidence on the balance of probabilities. The Tribunal did not engage in the task of first forming an opinion as to whether the whole of the material before it raised a reasonable hypothesis connecting the Veteran's death with his war service. That is not a fact finding exercise. 21 There was material before the Tribunal that was capable of raising a reasonable hypothesis connecting the Veteran's death with his war service, namely, the evidence of one of the psychiatrists. It is, of course, a matter for the Tribunal as to whether a reasonable hypothesis was raised by all of the material before it. However, the difficulty is that the Tribunal does not appear to have addressed that question, before embarking on a fact finding exercise. Instead of forming an opinion as to whether the material raised a reasonable hypothesis, the Tribunal embarked on the task of weighing the evidence and deciding whether or not, on the balance of probabilities, the Veteran suffered from post traumatic stress disorder. That was not the task called for by the statutory provisions. Accordingly, the Tribunal erred in law. 22 Mrs Collins is entitled to succeed in each of the proceedings. The appropriate course would be to allow the appeal under s 44 of the AAT Act. In those circumstances, there would be no utility in granting relief in the other proceeding, which should be dismissed. The Commission should pay Mrs Collins' costs of both proceedings.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

NEW SOUTH WALES DISTRICT REGISTRY NSD 2114 OF 2006

NEW SOUTH WALES DISTRICT REGISTRY NSD 2115 OF 2006

ALLSOP J 23 These two proceedings arise out of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of the Repatriation Commission (the Commission). By its decision, the Commission refused a claim by Mrs Eileen Collins (the applicant in both proceedings) to be entitled to a widow's pension under the Veterans' Entitlements Act 1986 (Cth) (the Veterans Act). The first proceeding (NSD 2114/2006) is an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). The second proceeding (NSD 2115/2006) is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The issue is the same in each proceeding, namely, whether the Tribunal failed to adopt the proper approach required under ss 120 and 120A of the Veterans Act in considering the claim by Mrs Collins. 24 Mrs Collins is the widow of Mr John Collins (the Veteran), who died on 3 August 1985 at the age of 64. The cause of his death was sudden myocardial infarction with previous myocardial infarction. The Veteran had suffered hypertension over thirteen years before his death. Mrs Collins claimed that the Veteran's death was war caused in terms of s 8 of the Veterans Act by reason of the following: · the Veteran experienced a severe stressor during his war service in the Second World War when the ship on which he was serving was sunk by enemy action; · the experiences of his war service led to the Veteran developing post traumatic stress disorder; · the Veteran's post traumatic stress disorder had a causative role in the Veteran developing hypertension; · the Veteran's hypertension led to the development of ischaemic heart disease; · the death of the Veteran was from that ischaemic heart disease. 25 The question whether Mrs Collins is entitled to a pension depends upon the operation of ss 120(1) and (3) and 120A(3) and (4) of the Veterans Act, which, relevantly, are in the following terms: 120 (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. … 120A(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. (4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of: (a) the kind of injury suffered by the person; or (b) the kind of disease contracted by the person; or (c) the kind of death met by the person; as the case may be. 26 The manner in which Mrs Collins claimed that the Veteran's death was war caused as set out at [24] above was said to be the hypothesis that was reasonable for the purpose of ss 120(3) and 120A(3). The Tribunal concluded that the hypothesis was not reasonable. 27 Mrs Collins' complaint was that the Tribunal made a legal error in the approach to the assessment of a reasonable hypothesis said to connect the death of the Veteran with the circumstances of the particular service rendered by him for the purposes of ss 120 and 120A of the VeteransAct. 28 The scheme and operation of ss 120 and 120A have been discussed in a number of High Court and Full Court decisions: see, in particular, Bushell v Repatriation Commission (1992) 175 CLR 408 at 413-416; Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569-572 and Gleeson v Repatriation Commission (1994) 34 ALD 505 for a discussion before the enactment of s 120A; Repatriation Commission v Deledio (1998) 83 FCR 82; McKenna v Repatriation Commission (1999) 86 FCR 144; Repatriation Commission v Gorton (2001) 110 FCR 321; Bull v Repatriation Commission (2001) 188 ALR 756; Woodward v Repatriation Commission (2003) 131 FCR 473; and Repatriation Commission v Patterson (2006) 94 ALD 66for a discussion after the enactment of s 120A. 29 As can be seen from s 120A, Statements of Principle (SoPs) promulgated under s 196B of the Veterans Act play an important part in the assessment of the reasonableness of any hypothesis. The place and role of SoPs were discussed in Gorton 110 FCR 321. 30 With one qualification, the approach to the operation of ss 120 and 120A and SoPs promulgated under s 196B of the Veterans Act is the four step process laid down in Deledio 83 FCR at 97-98:

1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved. 31 The qualification to which I referred is as to the second sentence in the second paragraph (which is not relevant here) of this passage in Deledio 83 FCR 82. It is not correct: see Woodward 131 FCR at 483 [55] and Bull 188 ALR at 759-60 [13] to [14]. Neither party argued that any other aspect of Deledio 83 FCR 82 was wrong. 32 It was common ground that there were three SoPs relevant to the hypothesis in question here, as follows: · Statement of Principles Concerning Ischaemic Heart Disease (Instrument No 53 of 2003 as amended by No 9 of 2004) · Statement of Principles Concerning Hypertension (Instrument No 35 of 2003 as amended by No 3 of 2004) · Statement of Principles Concerning Post Traumatic Stress Disorder (Instrument No 3 of 1993 as amended by No 54 of 2004 ) 33 It was also common ground that the Veteran satisfied all three SoPs, with two qualifications that are the subject of the dispute. Those two qualifications were whether paragraphs (C) and (D) of the third of the above SoPs concerning post traumatic stress disorder were satisfied. Those paragraphs were as follows: (C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following: (i) efforts to avoid thoughts, feelings, or conversations associated with the trauma; (ii) efforts to avoid activities, places, or people that arouse recollections of the trauma; (iii) inability to recall an important aspect of the trauma; (iv) markedly diminished interest or participation in significant activities; (v) feeling of detachment or estrangement from others; (vi) restricted range of affect (eg, unable to have loving feelings); (vii) sense of foreshortened future (eg, does not expect to have a career, marriage, children, or a normal lifespan); and (D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following: (i) difficult falling or staying asleep; (ii) irritability or outbursts of anger; (iii) difficulty concentrating; (iv) hypervigilance; (v) exaggerated startle response; and 34 The Tribunal characterised the question before it as turning on the weight that the Tribunal thought should be given to the material before it and the evidence of two psychiatrists. It said that it was a question solely for the Tribunal to decide whether the relevant SoP supported the hypothesis advanced on behalf of Mrs Collins. The Tribunal considered that, if there were a failure to satisfy an essential requirement of the relevant Statement of Principles, there could be no reasonable hypothesis. 35 The critical medical issue was whether the Veteran suffered from a war related anxiety disorder as a factor in the genesis of his hypertension. The clinical onset of the Veteran's hypertension was some 31 years after the sinking of the ship on which he served. Under the SoP concerning hypertension, hypertension may be considered to be connected to the circumstances of a person's service if that person was suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension. However, the relevant SoP makes no reference to the time interval between the traumatic event and the clinical onset of the post traumatic stress disorder. 36 The material before the Tribunal included: · statements by Mrs Collins and her evidence before the Tribunal; · a letter from Mr James Liprini, who had been friendly with the Veteran since the 1930s; · a report from the Veteran's treating doctor, Dr Tiwari; · reports of two psychiatrists, Dr Dinnen and Dr Delaforce; 37 Dr Tiwari's medical records did not mention any stress anxiety or depression that the Veteran might have suffered. Further, there was no mention of any psychiatric history in the clinical notes of Bankstown Hospital where the Veteran was treated in 1982 and 1985. 38 Dr Dinnen considered that it was reasonable to conclude that the Veteran had suffered from post traumatic stress disorder. Dr Dinnen said that the Veteran's illness had been more than an anxiety condition because there was evidence of a traumatic stressor, a history of some attempted avoidance of memories of the event and a history of influence of those traumatic memories. Dr Delaforce, on the other hand, considered that the information available was inadequate to support a diagnosis of post traumatic stress disorder. Indeed, Dr Delaforce said that such a diagnosis was inconsistent with certain information provided by Mrs Collins at times. 39 Relying on the evidence of Mrs Collins and Mr Liprini, Dr Dinnen accepted that elements (iv), (v) and (vi) of Factor (C) were satisfied. He also considered that element (i) was satisfied, although his evidence concerning the Veteran's willingness to visit ships was unclear. His conclusions were based on Mrs Collins' evidence that, when the Veteran was alive, he was always tired, fatigued, kept to himself, had no hobbies, was not interested in sport and lost interest in activities. 40 Dr Delaforce did not accept that the material indicated any avoidance behaviour or numbing of general responsiveness and considered that the evidence of Mrs Collins negated elements (iv), (v) and (vi) of Factor (C). He relied particularly on Mrs Collins' description that the Veteran had loved to talk to people and was able to talk to anyone and that that quality made him a good taxi driver. Dr Delaforce said that with post traumatic stress disorder the sufferer usually drops out of life and is not interested in life and people or participating in activities. Dr Delaforce considered that Mr Collins' love of ships and entertainment of US servicemen was directly contrary to the required avoidance behaviour as specified in element (i) of Factor (C). 41 Both psychiatrists considered that element (i) of Factor (D) was satisfied. However, while Dr Delaforce found that no other element in Factor (D) was satisfied, Dr Dinnen considered that elements (ii), (iv) and (v) may be satisfied. Thus, Dr Dinnen assumed that references to Mr Collins being highly strung and easily agitated could demonstrate irritability, as required by element (ii). He relied on a statement of Mrs Collins in 1987 that the Veteran was most easily upset and seemed to be overly highly strung and too easily agitated, translating into perhaps an exaggerated startle response, as contemplated by element (v) or certainly hypervigilance, as contemplated by element (iv). 42 The Tribunal observed that Dr Dinnen relied on documentary material recording statements by Mrs Collins but did not have the opportunity of interviewing her and enquiring into matters that may have invited further questioning or required further elaboration. On the other hand, information was also given by Mrs Collins in interviews with Dr Delaforce beyond that which appears in the documentary material. The Tribunal observed that Dr Dinnen did not have the advantage of the additional oral evidence and considered, therefore, that his opinion as to conformity with the SoP was not based on a fully informed examination of the Veteran's behaviour. On the other hand, the opinion of Dr Delaforce took into account the relevant additional facts in reaching his opinion that the SoP was not satisfied. The Tribunal accepted the opinion of Dr Delaforce as representing an accurate description of the characteristics of the Veteran. 43 The Tribunal concluded that the opinion of Dr Dinnen was founded on an incomplete and unsatisfactory limited matrix of facts; as a consequence, essential aspects of the behaviour of the Veteran were not before him when he committed to his opinion. On the other hand, the Tribunal considered that the view of Dr Delaforce was more fully informed and based on a more complex and expansive picture of the Veteran's behaviour, as evident from material provided by Mrs Collins. Some of that material illustrated other aspects of the Veteran's personality that suggested better adjustment and which were inconsistent with some important elements in the SoP. Given that the applicant relies on the terms of the reasons of the Tribunal in those respects, it is appropriate to set out in full those aspects of the approach of the Tribunal in [49] to [52] of its reasons: [49] In our view, having regard to the terms of the hypothesis and all the material before the Tribunal, including that recorded by Dr Delaforce, the picture which emerges of the veteran is that he was able to cope with work over many years as a taxi driver and was able to relate to Mrs Collins and people generally. He did not avoid the memories of the incident or seamen or the sea. He was able to concentrate well. Dr Dinnen did not have the advantage of the additional oral evidence and his opinion as to conformity with the Statement of Principles is not based on a fully informed examination of the veteran's behaviour. On the other hand, the opinion of Dr Delaforce does take into account the relevant additional facts, and his opinion is that the Statement of Principles is not satisfied by the hypothesis. The Tribunal accepts this opinion as representing an accurate description of the characteristics of the veteran. [50] In this case, the opinion of Dr Dinnen was founded on an incomplete and unsatisfactory limited matrix of facts. As a consequence, essential aspects of the behaviour of the veteran were not before Dr Dinnen when he committed to his opinion. The view of Dr Delaforce is more fully informed and based on a more complex and expansive picture of the behaviour of the veteran as evident from material provided by the applicant. Some of this material illustrated other aspects of the veteran's personality that suggested better adjustment and were inconsistent with some important factors in the Statement of Principles Concerning PTSD. [51] The Tribunal does not consider that the comments of Dr Dinnen in relation to the additional material recorded by Dr Delaforce during the interviews negate the importance of that additional information in forming an accurate view as to the relevant characteristics of the veteran during the specified period. The factual and observational evidence by Dr Delaforce is of critical importance in this case in characterising the behaviour of the veteran and determining whether the requirements set out in the Statement of Principles Concerning PTSD are satisfied. [52] In the view of the Tribunal, the position in relation to the Statement of Principles Concerning PTSD on all the material is as follows: Mr Collins was exposed to a traumatic event, namely the sinking of the vessel, and this satisfies the requirements of Factor A of the requirements for PTSD. We are also satisfied that Factor B is satisfied in that the traumatic event was persistently re-experienced by way of recurrent and intrusive and distressing recollections. 44 The critical reasoning of the Tribunal is to be found in the following paragraphs: [53] In relation to Factor C, the Tribunal is not satisfied that there was persistent avoidance of stimuli associated with the trauma and a numbing of general responsiveness. There is some evidence from Mr Liprini's statement that the veteran made efforts to avoid conversations associated with the trauma. However, the evidence as to the veteran maintaining an interest in US navy vessels is inconsistent with avoiding activities, places or people that arouse recollections of the trauma. In addition, Mr Collins remained in maritime engagement after the sinking of the vessel in 1941. There is no evidence that he had an inability to recall an important aspect of the trauma. It is doubtful whether he had a markedly diminished interest or participation in significant activities. He was able to engage in taxi driving for many years and on the evidence of Mrs Collins, he got along well with almost anybody over that period. The veteran was a good reader, took an interest in horses and gambling, and enjoyed television. Nor is the Tribunal satisfied that he had a feeling of detachment or estrangement from others. The evidence does not indicate that Mr Collins had a restricted range of affect, for example, being unable to have loving feelings. The veteran did maintain a warm and loving relationship with the applicant for a very substantial period of time. There is no evidence that he had a sense of a foreshortened future, in the sense of not expecting to have a normal life span. Accordingly, Factor C is not made out, and therefore the application must fail. [54] In relation to Factor D, there is evidence that the veteran experienced difficulty sleeping. This satisfies one of the criteria under Factor D. However, it is doubtful that the veteran exhibited signs of irritability or anger in the context of this provision, as opposed to being merely agitated. The fact that he was a good reader and was able to drive a taxi for a substantial period of time indicates that the veteran did not have undue difficulty concentrating. There was evidence that Mr Collins was highly strung, but there is no evidence that he had an exaggerated startle response. In relation to this last factor, the evidence is to the contrary, as the veteran was described as 'placid'. Therefore, Factor D has not been made out on the evidence as only one symptom under this section has been established where two are required." 45 In the first proceeding, Mrs Collins contends that the decision of the Tribunal involved an improper exercise of the power conferred by the Veterans Act in that, when purporting to assess the reasonableness of the hypothesised connection between the Veteran's death and service: · the Tribunal improperly took account of irrelevant considerations, namely that the material before it that did not support Factors (C) and (D) of the SoP being made out; · failed to take into account relevant considerations, namely that material before it that did support the presence of sufficient elements of Factors (C) and (D) of the SoP. 46 In the second proceeding, Mrs Collins contended that the Tribunal improperly assessed the material before it concerning presence or absence of the elements referred to in Factors (C) and (D) of the SoP in so far as the Tribunal assessed whether the material that purported to support the hypothesis was proved or disproved or likely to be proved or disproved, thereby making findings of fact otherwise than in accordance with the standard of proof required by s 120(1) of the Veterans Act. The same question of law was said to be a ground in the first proceeding. 47 Counsel for Mrs Collins accepted that the same question was, in substance, raised in both proceedings. The Commission contended that there was no error on the part of the Tribunal. It said, in addition, that if there were an error, it was not an error of law and that the question raised by both proceedings was a question of fact. 48 Without seeking to qualify the authorities to which I have referred, I take the following to be settled and uncontroversial principles concerning the undertaking of the task in s 120(3) as affected by the existence of a SoP under s 196B and by s 120A(3): (a) The Tribunal must consider the whole of the material before it: s 120(3). (b) The Tribunal is to form an opinion whether the material raises a reasonable hypothesis connecting the injury, disease or death with the circumstances of service: s 120(3). (c) The formation of that opinion involves consideration as to whether a relevant SoP upholds the hypothesis: s 120A(3). (d) At the stage of formation of the opinion in (b), involving the consideration in (c), no question of fact finding arises: Deledio 83 FCR at 97. (e) The formation of the opinion involves the reaching of a factual conclusion: Bull 188 ALR at 760-62 [17] to [25] and involves the assessment of all the material before the Tribunal, but not the finding of facts or rejecting material: Bull 188 ALR at 761 [22]. 49 As has been shown in a number of cases concerning ss 120(3) and 120A, the dividing line between impermissible fact finding and required assessment of all the material in the formation of an opinion as to whether a hypothesis is reasonable in connecting the injury, disease or death with the circumstances of service and as to whether a relevant SoP upholds the hypothesis is not necessarily easy to discern. The kinds of fine questions that can arise were discussed in Elliott v Repatriation Commission (2002) 73 ALD 377; Cameron v Repatriation Commission (2003) 77 ALD 81; Repatriation Commission v Bey (1997) 79 FCR 364; and Gleeson v Repatriation Commission 34 ALD 505. In Cameron 77 ALD 81 there was found to be no illicit fact finding in the assessment on its own terms of a doctor's opinion. In Elliott 73 ALD 377 there was found to be no illicit fact finding in the careful assessment of all the evidence and the formation of an opinion as to what could be drawn from it, properly understood. In Gleeson 34 ALD 505, on the other hand, there was found to be illicit fact finding by the Tribunal coming to the conclusion from an assessment of two contradictory documents from the same source about a topic that there was no evidence on the topic. The error of the Tribunal in that case was the setting to one side of both documents because of the difficulty in reconciling them. 50 The Full Court said see Gleeson 34 ALD at 509: [I]n substance, and in form, the tribunal, for this purpose, entirely eliminated from its consideration a part of that material in the form of the information contained in the two statutory declarations. The tribunal purported to do this on the footing that it was difficult to reconcile certain of the statements in the declaration. Whilst this may be a basis for evaluating the credibility of the information in the declarations, it could not provide a foundation for a conclusion that there was "no evidence" on the topic for the purpose of determining whether the whole of the material before it raised the requisite facts. The tribunal has, in effect, proceeded on the assumption that the material from Mr Kevin Gleeson did not exist. 51 The Tribunal there would equally have been in error if, instead of discarding both documents as too difficult to reconcile, it discarded only one, preferring the other as more reliable. 52 The argument put forward on behalf of Mrs Collins is redolent of the Full Court's reasoning in Gleeson 34 ALD at 509. The argument put forward on behalf of the respondents is redolent of the Courts' approaches in Elliot 73 ALD 377 and Cameron 77 ALD 81. 53 It is necessary, therefore, to examine the reasoning of the Tribunal and the material that was before it. Before doing so, however, it is necessary to dispose of two arguments of the respondent. The respondent argued that even if the Tribunal had gone beyond the process of assessment and had entered into the prohibited domain of fact finding, that was not a question capable of raising a question of law for the purposes of s 44 of the AAT Act, and that the Tribunal could only be found to have erred if the conclusions it reached were unreasonable or capricious in the sense discussed in Bull 188 ALR at 761-62 [23] to [25]. 54 Taking the second of these two arguments first, it overlooks the premise of the relevant statements in Bull 188 ALR at 761 [23]: "If the tribunal examined all the material and if the tribunal followed the correct approach to its task under s 120(3)…" Whether or not the Tribunal did that is the question here. So, reliance upon what follows in Bull 188 ALR at 761-62 [23]- [25] is misplaced. 55 The first of these two arguments rests on a number of Full Court decisions including Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [18]; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290; Comcare v Etheridge (2006) 149 FCR 522; and HBF Health Funds Inc v Minister for Health and Ageing (2006) 149 FCR 291. These authorities, it was submitted, prevented an error of the kind asserted (that the Tribunal exceeded what was legally open to it to do in the formation of its opinion for s 120(3)) being capable of being a question of law for the purposes of s 44 of the AAT Act. This was so, it was submitted, because the Court would need to examine the handling of the facts by the Tribunal and also because at most the question would be a question of mixed fact and law and not a pure question of law. I reject this argument. Nothing in any of the cases referred to at the commencement of this paragraph gainsays the proposition that a properly framed question of law directing the Court's attention to the manner in which the Tribunal failed to discharge its obligations according to law under s 120(3) can be the subject of an "appeal" under the AAT Act. All those cases were directed at the necessity for there to be a proper and precise framing of a "question of law" to found the statutory authority of the Court under s 44 of the AAT Act to dispose of the appeal. Nothing in these cases limits the reach of s 44 to questions of law divorced from the need to look at facts. If, as here (on the hypothesis put forward on behalf of Mrs Collins), the Tribunal has begun a process of fact finding by preferring some evidence to other evidence or by rejecting conflicting material in the formation of its opinion as to reasonable hypothesis, it would have exceeded the statutory task required of it under s 120(3) of the Veterans Act. There can be no doubt that a properly framed question of law raising that legal error would be the legitimate subject of an "appeal" under s 44 of the AAT Act. All the cases relied upon were dealing with what has become an endemic problem in the failure of applicants in appeals under s 44 to frame the question as a question of law, including, but not limited to, the practice of raising of factual issues or simply expressing subject matter to set the outer limits of debate before the Court.

Did the Tribunal go beyond its legally permitted task under s 120(3) in this case?

The material before the Tribunal 56 It is appropriate to set out the relevant material that was before the Tribunal.

Mrs Collins 57 Mrs Collins signed a statement in 1987 in which she stated the following: …He became very nervous and easily upset, suffered nightmares had frequent indigestion, took Milanta [sic] and Quikease tablets. He smoked cigarettes during sea service but ceased when he left the sea. … My husband was permanently affected by his war service in the Merchant Navy. His nerves were affected and this affected his health. He had nightmares always about ships and sinking. He had indigestion, he had falls and blackouts and forgetfulness. He was most easily upset, seemed to be over highly strung and too easily agitated. 58 Mrs Collins signed a statement in 2000 in making her claim in which she answered a question in the relevant form as to her belief why the Veteran's service caused or contributed to his death. In that statement she said: I claim that my husband's death on 3rd August, 1985 was linked to the sinking of his ship by bombing in the Atlantic Ocean in July, 1941 when he was aged 20 and employed as fireman's boy. We met in May 1960. He was not well then, always very nervous, spoke of ships sinking and people dying. We married in 1976. He was very easily upset, had nightmares with sweating several times a week, getting up carrying a pillow presumably as a life belt, had no recollection of being out of bed. One morning in bed he had grass and blood on him after falling on the lawn during one of these episodes. He could not swim, was terrified of the popping sounds of gas heaters and wouldn't allow gas in our house. I did not see him take any exercise, even though pre-war he was very active in football and cricket. I mowed the lawn. He was a slow walker and sat a lot in front of T.V. His nature, interests, health and physical activity all diminished greatly from pre-war to post-war, according to his friend J.N. Liprini. (His letter enclosed) There appears to be no other explanation of his changed ways in so many aspects than the sinking of the ship and deaths of shipmates. 59 Mrs Collins signed a statement for the hearing before the Tribunal which was before the Tribunal. It contained the following: Jack was born in Australia just a couple of streets away from the place where I was born. He was employed during World War II in the Maritime Service as a merchant mariner and, as a result, was sent to work on different ships from all around the world. Jack was only 18 years of age when the Dutch ship he was working was sunk by enemy action. Jack didn't ever speak much about his war service and he never told me any details of the sinking ship. The main problem that Jack suffered after the war was nightmares. He would have a nightmare nearly every night. I recall that when he was having a nightmare, he would get up out of bed and walk around with a pillow. When I'd ask Jack what he was doing or if he was alright and he would reply: "Just having a rest." It was as if he were sleepwalking. However I always got the feeling that there was something playing on Jack's mind during these occasions. I would say that Jack slept a lot during the day. He was always tired and feeling fatigued, and this was probably because his sleep was so disturbed during the night. Jack was a very quiet man who kept mainly to himself. He worked as a taxi driver and didn't really have any hobbies, apart from being a mad gambler when it came to the horses. He wasn't interested in sports, however he did play some sport before the war and was known to be a very good upholstery trimmer. However, he lost all interest in those activities after he returned home from the war. Jack wasn't a sulky man so if ever he got depressed he would just be very quite,[sic] more so than usual. 60 Mrs Collins gave evidence before the Tribunal. Her evidence in cross-examination included the following: Mr Bunn Yes. So when did you first meet your husband? Mrs Collins I met my husband in 1960 and we got married in 1976. Mr Bunn: Thank you. Did he ever talk to you about the sinking of the ship during the Second World War? Mrs Collins: No, he never really discussed his war and that to me and that, but Mr Bunn: Okay. I understand that prior to his heart attack in '82 your husband had difficulty sleeping. What were? Mrs Collins: Nightmares. He had nightmares after nightmares. Mr Bunn: When you say nightmares, what were the nightmares about? Mrs Collins: Well, I don't know. All I know is - all I can remember is him walking around the bedroom with a pillow. … Mr Bunn: Okay. When you "nightmares," did he ever tell you what he was dreaming about? Mrs Collins: No, never. Never. … Mr Bunn: I notice there that Dr Delaforce records you saying that your husband was a really happy-go-lucky person: …continued to be positive about their future. He loved to talk to people. Could talk to anybody. That made him a good taxi driver. Mrs Collins: Yes Mr Bunn: So he did say that? Mrs Collins: Yes, well he was a man that could always converse with people - Jack. He would converse with anybody. Mr Bunn: Right. And I think you also told the doctor - again, this is back at page 7, second-last paragraph - that your husband loved the television, the movies? Mrs Collins: He loved his television. He loved his cartoons and all that. He wouldn't be too pleased today, because the cartoons and that are not much good. Mr Bunn: And various others - the movies - and was a good reader? Mrs Collins: Yes, he loved books. Yes, he read a lot; not like me. Mr Bunn: And did he still keep up his interest in ships? Mrs Collins: No, he never - well, I don't know. Well, I'm only going by what Jimmy Liprini told me, you know, when he was alive. Mr Bunn: Okay. Can I again quote to you - this is the last paragraph on page 7. You say: He loved ships and continued to keep up his interest in ships. And then it says: For example, when a US forces ship came to Sydney, he would go and visit the ship. Mrs Collins: Yes. No, not then. The war and that was finished, anyway, so, no, he never bothered about going back to sea, if that's what you mean. Mr Bunn: No, I'm not asking if he went back to sea - we accept he was a taxi driver - but whether, for example, as Dr Delaforce reports, that your husband would go and visit a US forces ship when it came? Mrs Collins: Yes, he did Mr Bunn: And it also says that, sometimes he would bring the US servicemen back to his home. Do you remember him doing that? Mrs Collins: Yes, yes

Mr Liprini 61 The letter of Mr Liprini related his acquaintance with the Veteran before the war. It is appropriate to set it out in full: I first became friendly with Jack early in the year 1936 where we were involved in numerous sport, business and social activities. This included football & cricket, house parties & outdoor picnics etc most of which were arranged by Jack, he was an excellent organiser for such things & he always had a large amount of friends to call on for this type of entainment, which was most fashionable in the days before the war, Jack was always the life of the party. This friendship between us was continuous until the outbreak of war - we became separated, I went to Army, & Jack took to the sea. We became united again in about 1950, and I must add here that we did some business together Pre war, buying and selling cars. I did the mechanical work he the upholsting. Also we converted the seats to sleeping or camping bodys. In 1951 I tried to get him to start up business again but he did not seem interested, only saying any chance to start again is finished, he seemed quite a changed man, he did not have the same drive or ambitions he had before, I did notice that at times he was very despondent. Over the years I tried to question him as why he was so, & came to the conclusion that something had happened, while he was in the Merchant Navy. When he sometimes would speak of his war service he became very bitter saying it was the cause of all his troubles, mostly he would eventually get to the point when his ship was lost, he seem to blame himself for the whole disaster & repeating to me (it was all his fault). I asked on the occasion he said this, and he would at first get aggressive and then remorseful to the state of almost in tears. Feeling this was the cause of his strange manner on occasions, I would try change the subject when he started to mention the war. Later through the years he seem to keep to himself our meetings became less frequent and most times would end up about the loss of the ship & of death of many men at sea & the way he used to say this would worry me. Although I knew he would not be the type to take his life. I must conclude here and offer my opinion that Jack had a serious sickness, which was caused by his war. There are many reasons for me to come to this conclusion & I would be available at any time to personally explain them to you. [spelling and grammar in the original]

Dr Dinnen (his first report) 62 Dr Dinnen gave a written opinion based on the papers before the Tribunal, and without the benefit of seeing Mrs Collins, that the SoP concerning post traumatic stress disorder was satisfied.

Dr Delaforce 63 Mrs Collins then saw Dr Delaforce who had not only the benefit of seeing Mrs Collins, but also the advantage of seeing Dr Dinnen's written opinion. Dr Delaforce first commented on Mrs Collins' statements to which I have referred, as follows: Comment: I have no record of a loss of life following the ship sinking. Mr Collins would have been about 36 years old when he met Mrs Collins and over 40 years old by the time they started living together, which would contribute to her not seeing him play sport. Sport is not uncommonly ceased even in a person's twenties. His being overweight may have been associated with his not playing sport. She told me he was overweight from when she first met him (below). … Comment: Her comment that her husband never gave her details about the ship's sinking seems inconsistent with her 10 April 2000 details that he "spoke of ships sinking and people dying". His sleep difficulty could also relate to the disruption of his circadian rhythm because on most nights he worked as a taxi driver (below). 64 Dr Delaforce then commented on Mr Liprini's letter, stating: Comment: There is not a clear statement here that the sea deaths were related to the sinking of Montferland. 65 Dr Delaforce then commented on Dr Dinnen's report. A number of matters are worthy of note. First, he commented on his own advantage in seeing Mrs Collins. Secondly, Dr Delaforce agreed with Dr Dinnen's view that the diagnostic categories in the SoP should be interpreted and employed by persons relevantly expert - that the decision whether the criteria are satisfied was a question of medical judgment. 66 Dr Delaforce then referred to further information that he obtained from Mrs Collins. That included the following: Regarding him talking about the ship sinking she told me he would not talk much about it and then stated he never discussed it. When I later asked about her comment (T8, folio 34) that he spoke of the sinking and people dying she told me that it was not her but Mr Liprini who referred to the people dying and that she would not know because her husband did not tell her about the deaths. She also told me that Mr Liprini died 2 years ago. Comment: Her final comments to me here were consistent with her 2 August 2005 statement at paragraph 3. From the time she first knew him she was aware of what she called his "nightmares", including from what friends had told her. However, during the second interview when I questioned her more about her initial awareness of his nightmares she told me that she could not have known about them until they started to live together in the late 1960s. His nightmares involved his holding a pillow and walking around the bedroom and perhaps also going to another part of the house. Because this did not suggest a nightmare I asked about what happened before he got out of bed, including if he was having any bad dreams. He was a peaceful sleeper although he could have a lot of twitches, but there were no details provided to indicate an actual nightmare or bad dream. When I asked if she thought it was sleepwalking she stated she did not know. She added that because nearly every night he would get out of bed it ruined her sleep. She would get out of bed and, for example, be with him while he watched television. He would not say why he could not sleep or what troubled him. She did not know if he was able to recall the next morning what happened during the night. Comment: That is surprising because she would have been directly aware of the nightmares for about 15 years, nightmares that ruined her sleep and resulted in her being with him when he got out of bed. Because he mostly worked during the night and then slept by day he on most nights did not have a nightmare. The nightmares ceased in 1982, which she associated with his then being prescribed a lot of medication following his heart attack. Comment: That could have also been the result of his stopping the night time taxi driving and therefore a normal circadian rhythm. During the second interview she expressed her doubt about calling the night episodes "nightmares". Since the late 1960s he tended to sleep through the day if he had a bad night previously. During the 1960s he declined her request that they have a gas heater because he could not stand the noise, but would not say why. She thought his not liking a popping sound was him just being Jack and she did not know if that dislike had anything to do with his war service. When I asked if he was easily upset she stated, "No. Not really." When I asked if he would get upset she indicted, "No." When I inquired about him being highly strung she indicated that he was very much that way and also nervous. "He could jump at anything. For a man he was very nervous." Then I asked if that was in response to a sudden unexpected noise. "No. No. Not like that … Agitation is more the word." She then added that agitated meant him being annoyed. When I asked if that was being too angry or irritable she stated he was not that way with her. However, in his later years related to his medical problems he started to get angry with medical practitioners. At another stage I asked if he was angry or irritable. "No not really. Jack was very placid. …You wouldn't say he's a bad-tempered man" He was described as a fidgety man. He was not an overly cautious man too concerned about danger to himself or others, was not an excessive and inappropriate worrier, and he did not have any panic episodes or particular fears that he would avoid. When I asked about his not swimming she thought that he just did not bother with swimming rather than fearing swimming. There were no problems with his concentration which was good from when she met him. He loved his television, the movie pictures, and was a good reader and had a considerable library of books. He always had an interest in horse racing. He loved ships and continued to keep his interest in ships. For example, whenever a US forces ship came to Sydney he would go and visit the ship and sometimes he would bring the US servicemen back to his home. Since his war service he was a taxi driver and from when she met him he worked full-time and mostly at night because he could not earn sufficient money by day. He enjoyed the work and meeting the people. When driving a taxi at Blacktown in the 1960s he had a bad experience when he saw a woman with blood on her, which resulted in Mr Collins leaving the scene. In the 1960s when taking passengers to Central Railway there was an argument about the best route to take. One of the passengers then pulled out a gun but did not point it at Mr Collins. Mr Collins stopped the car and let them out. Mr Collins was in his taxi at the Sydney Town Hall when the Hilton Hotel (several hundred meters away) bombing occurred in the 1970s. He then left the area. She added that he was not a hero. He changed in the early 1970s when his application for life insurance was disallowed because of a diagnosis of high blood pressure. Following his 1982 heart attack he was forced to give up his taxi driving because of his medical problems, which resulted in him crying "like a baby" and continued depression. Because he did not follow his heart specialist's advice to only drive locally the doctor ceased his support for a licence which was therefore cancelled. He then obtained work at Sydney race meetings which resulted in a much increase in his gambling. From when she first met him he was overweight, a really happy-go-lucky person, he continued to be positive about their future, he loved to talk to people, could talk to anybody, that made him a good taxi driver, and he was a loving and friendly person up to his death. She was not aware that he used alcohol excessively prior to 1960 and since then he had about one drink a year. 67 In the section of his report headed "Opinion" Dr Delaforce said the following: My assessment has highlighted the inadequacy, inaccuracy, and inconsistency regarding some the information that was previously available. The additional information I obtained came from Mrs Collins and, for example, indicated that Mr Collins had not talked to her about people dying when his ship sank during the war, had not even talked about the ship sinking, did not have nightmares let alone nightmares known to be connected with the ship sinking, he worked full-time and mostly at night as a taxi driver and therefore did not have the so-called nightmares, gave no indications that he avoided thoughts or situations regarding ships and servicemen because of his keen interest in ships and servicemen, had a continued interest in life from when she met him but understandably did not continue playing sport from when she met him and perhaps because of his being overweight, not having difficulty relating or connecting to people and instead being known to be a good talker, his always being a loving person, his never losing his hope for the future although he was depressed from the early 1980s when he was forced to give up taxi driving, difficulty sleeping that may only have been the result of disrupted circadian rhythms, no indication of persisting irritability or outbursts of anger except from the early 1980s some directed towards medical practitioners and related to the management of his medical problems that would probably relate to the cancellation of his drivers licence, and no reports of difficulty concentrating, being excessively on guard for signs of danger (hypervigiliant), or an exaggerated startle reaction. Therefore when I consider the overall information now available to me in terms of all the diagnostic criteria for Posttraumatic Stress Disorder… I can, after taking into consideration the decision in Smith v Repatriation Commission, conclude the following. There is sufficient information pointing to Mr Collins during his service on the ship Montferland during his 26 March 1941 to 21 July 1941 service being exposed to a traumatic event, the sinking of the ship, that would satisfy criterion A for Posttraumatic Stress Disorder. The details provided by Mr J Liprini would add to the severity of the stressor. Mr Liprini's details would also be sufficient to point to the existence of criterion (B)(1) and (B)(4). I found no information that would be sufficient to point to the existence of any C criteria. The only pointer to a D criteria was for (D)(1), difficulty falling or staying asleep. However, that may have related to only his mostly night-time taxi work. Therefore it would be appropriate to consider the diagnosis of the mental disorder, Circadian Rhythm Sleep Disorder, Shift Work Type… There is information available that would point to satisfying criterion E and F for Posttraumatic Stress Disorder, for example, with Mr Liprini's report and Mrs Collins stating that he would for some unknown reason carry a pillow around with him when he got out of bed during the night. Therefore I would exclude a diagnosis of Posttraumatic Stress Disorder because the minimum diagnostic criteria and the template for the Statement of Principles (SoP) have not been satisfied. The material available is not sufficient to point to the existence of Posttraumatic Stress Disorder. [endnotes omitted]

Dr Dinnen (his second report and oral evidence) 68 Dr Dinnen then commented on the report of Dr Delaforce. He disagreed with his conclusions and remained of the view that the relevant SoP upheld the hypothesis. 69 Dr Dinnen gave oral evidence. In chief, he dealt with paragraph (C) of the SoP as follows: …C means we have got to have three elements. "Efforts to avoid thoughts, feelings or conversations" seems to be satisfied without too much difficulty. "Efforts to avoid activities, places or people that arouse recollections of the trauma" - I seem to remember he said if he visits ships and so on, we might say, well, maybe that can be ruled out. But as I say, I do not think that is necessarily the case. But we have not got any clear evidence of two or three. We have an evidence of some overall impact on his level of functioning in terms of the widow's limited information to me on - sorry, from the documentation, and I gather in evidence, of the impact this had on - he was always tired; he was fatigued; he kept to himself; he didn't have any hobbies; he was not interested in sport; lost interest in activities. So that seems to be four and also six, and probably five - four, five and six, those criteria in the statement of principles - markedly diminished interest; a feeling of detachment or estrangement from others; restricted range of affect - all is meant to sort of define this ongoing disturbance, which the widow so clearly describes in terms of his sort of general functioning in life. She got the feeling there was something playing on his mind when he was asleep. We have talked about it earlier. But he was sleeping a lot during the day, tired, fatigued, kept to himself and so on. These things, I think, are four, five and six, so I think C is satisfied. He also dealt with paragraph (D) of the SoP as follows: Dr Dinnen …D is somewhat going over the same ground, but we've got one - we have got - not - I do not know if we have got anything about irritability. But one would assume, when she says that he seemed to be highly strung and easily agitated, that could well be a reflection of irritability. Difficulty concentrating, it is hard to know about that directly. Hyper-vigilance we see, and exaggerated startle I think we have got some reference to that somewhere. I am not sure about that. Mr Vincent: I just might be able to assist with some of that. On page 11 of the T document was a document apparently produced - a statement apparently produced by the applicant back in 1987. There is a reference to, "He was most easily upset and seemed to be over-highly strung and too easily agitated"? Dr Dinnen: Yes. Well, that is what I have referred to in my report. So I think that would fit in with perhaps an exaggerated startle or certainly hyper-vigilance is highly strung if we translate common language into scientific terminology. 70 During his cross-examination, Dr Dinnen made a number of pertinent remarks. At the point of being taken to Dr Delaforce's comments about the Veteran being a loving and friendly person up to his death, Dr Dinnen said: Mr Bunn: So again, that is obviously not consistent with the information you have - for the reasons you have already said. From what - I think, from what I understand you to ---? Dr Dinnen: As I say, this is one of the problems I have with Dr Delaforce's report. You know, there is an account she has written where she says he was quiet and withdrawn and he had lost interests. And here we have Dr Delaforce getting some information which is not completely inconsistent but certainly somewhat at odds with that. And I just do not know how suggestible the widow was. I do not know what the context of the information was. … But I have some reservations about that material. It is not in accord with the information which was provided to me when I did the assessment, and I do not know how consistent it is with the evidence she gave in the court this morning. But the story that I was given was not of a happy-go-lucky, relaxed and untroubled individual. I was told that she had always found him to be nervous, upset and so on, and suffering from sleep disturbance and, you know, there you go. 71 In discussing the criteria in the SoP Dr Dinnen said: …Those dissected medical features are a way of attempt, in the criteria for PTSD, to formalise our understanding of the global changes in personality and adjustment to life which occur in traumatised individuals. And in general, we find the sort of pattern which is described by the widow in the report - in the statement, which I rely on and which I quote in my original report. So we get a withdrawal, a quietness, an avoidance of activities, a loss of interests, and we try to fit them in under one of those three subheadings.

Dr Delaforce (oral evidence) 72 In his evidence in chief Dr Delaforce made clear that he thought that he had obtained a better history and a more accurate diagnosis as a result of his interviews. He said: Mr Bunn: Do you think you obtained a better history and more accurate diagnosis as a result of the interviews? Dr Delaforce: Absolutely. Absolutely. Because an interview gives an opportunity to not only to ask a question and get an answer, but to follow up with questions as much as is required to ensure that the answer is clear, that the question was understood, and, therefore, one can do that as one has to do that to determine if the criteria for a mental disorder such as post traumatic stress disorder is present. Otherwise, you're relying on the information from other people, not necessarily medical practitioners, and without knowing how that information was obtained. And in the case where specific information was not obtained and that was not in the documents, well, you have the opportunity by - I had the opportunity by interviewing Mrs Collins of getting that information from her. 73 In his cross-examination, Dr Delaforce expressed strong professional views as to the validity of Dr Dinnen's report. He gave the following evidence: Mr Vincent If I was to ask you to accept that Dr Dinnen is satisfied that there are the requisite number of (c) criteria and (d) criteria present, would that seem to be what amounts to a difference in opinion between the pair of you? Dr Delaforce: Well, what is he basing it on? And if it's not - as I say, you can - you can say anything. You can pick your dots and you can join whichever ones you want to and avoid certain ones. I have shown in my report what I did in my assessment and that's getting information from documents and from Mrs Collins according to the criteria. Now, it's - and that is what I maintain. And Dr Dinnen from his first report - and I would say to an absurd level just claimed post traumatic stress disorder. And I do not know how anybody could based upon the information available. The most you could say based upon the information he had at that time there were some suggestions of the possibility of a diagnosis, but he jumped - I'd say even jumped over his dots. He just jumped and made a diagnosis and now he's - he's saying - I don't know how he's doing this. He's saying that he can show that the criteria are present. Well, I can show that the - and it's in my report - that the details that Mrs Collins, who is obviously the most important informant here - the details she provides do not support the (c) - any of the (c) and only one of the (d) criteria. And we've got all of those counter matters that I've talked about how he doesn't avoid matters of war and ships and servicemen, etcetera. Thank you. 74 In discussing Mr Liprini's letter Dr Delaforce said: Mr Vincent: Yes, Mr Liprini. Would you accept that he is the only person who offers any longitudinal view that goes back to before the sinking of the ship, isn't he? Dr Delaforce: Before the ship? Before and after you mean? Mr Vincent: Yes? Dr Delaforce: Well, it's longitudinal. I wouldn't say its longitudinal. It's a before and after. There's quite a gap. I think it was from about nineteen thirty - well, it was before the war and then up to 1951, I recall. But he is the only one, yes, that provides that information because Mrs Collins comes along later. But on the other hand we've got to look at what's the most recent information too, because let's assume post traumatic stress disorder was present and then the question is, was it still present and was it still clinically significant. … Mr Vincent: So it would be the case, I would ask you to assume, that it's more than just the two occasions? Dr Delaforce: On, no, I've accepted that. I accept that. But no matter how - I would say no matter how frequently and whatever over the years meant, whether it meant every year, or even every month, the more recent information from his wife of all people, you know, the every day contact person, is very important. And I would emphasise that Mr Liprini's information, as I have indicated, is substantial but it's very specific and I've taken that into consideration. To me that's about the (d) criteria of post traumatic stress disorder and I have accepted that. And I acknowledge that's present in terms of this Smith approach. So that there's no issue there for me. … Mr Vincent: All right, Well, I put to you a specific - the material from Mr Liprini which you consider falls into the (b) category might it not also be case that where Mr Liprini is talking about Mr Collins keeping to himself, for example, not keeping - not seeming interested, seeming a changed man, not only could that amount to - sorry, not only could that reasonably amount to a (b) criteria but also a (c) criteria such as marked diminished interest or participation? Dr Delaforce: No, I - I wouldn't accept that. I think - you have to - I would suggest that the matter with Mr Liprini if you looked at it, a Mr Liprini orientation, a comment, because, for example, Mr Collins may not have been interested in Mr Liprini. And I do put that point that way because take away Mr Liprini and what have we got from Mrs Collins? This is a man who was enjoying life. He was a very likeable person, a good husband, loved his work, loved people, loved mariners, loved the ships, etcetera. And it's a Mr Liprini thing. Perhaps, you know, they had business problems. I don't know. They - and Mr Collins didn't reciprocate the same feelings - desires that Mr Liprini had about restarting a business and socialising. So in talking about a lack of interest maybe the lack of interest was mainly in Mr Liprini and what he wanted Mr Collins to do. Mr Vincent: So is it fair to say that you've interpreted Mr Liprini's evidence to come to that view? Dr Delaforce: I think that's a likely interpretation. That's why I say Mr Liprini's information, as substantial as it is, and I've acknowledged that it's substantial in terms of (b) criteria for PTSD, is a Mr Liprini only matter. It's not coming from anywhere else. There is no other support for it and, therefore, I think you could look at it and say, well, that is a situation with - considerable to do with the relationship between Mr Collins and Mr Liprini. Mr Vincent: But you could understand, can't you, why Mr Dinnen might not interpret it - sorry, why Dr Dinnen would not interpret it the same way? Dr Delaforce: Well, I'm not going to begin to talk about how Dr Dinnen interprets things. I talk about what I - the absurd diagnosis of post traumatic stress disorder he made initially based upon the information that he had, but he would interpret things differently. He can pick whatever dots he wants to and fill them in. Of course he can and that's what he's doing and that is the problem.

The submissions of the parties 75 The applicant submitted that the Tribunal engaged in a species of fact finding beyond the factual assessment required by ss 120(3) and 120A(3). This, it was submitted, can be seen in the approach it took in [49]-[52] and the findings it made in [53] and [54]. 76 The respondent submitted that there was no error in the Tribunal's approach. The essence of the submissions of the respondent in this regard is captured in [57]-[61] of its written submissions, which were as follows: 57. Where there is conflicting factual material or opinions, it is proper for the Tribunal to form an opinion about the evidence. This may involve evaluating the evidence. In Repatriation Commission v Webb (1998) 51 ALD 575, the Full Court dismissed the contention that the Tribunal had erred because it evaluated or weighted evidence of medical practitioners. [See also Cameron v Repatriation Commission (2003) 77 ALD 81, Streatfeild v Repatriation Commission [2006] FCA 984 and Blair v Repatriation Commission [2005] FCA 1076]. In Webb, the Court said, at 581: In our view, the tribunal reasons indicate that it did not simply confine its task to an evaluation or weighing of medical opinions as against each other in order to select the preferable expert or make any determination as to the correct version of competing views. The task was approached on the basis of its consideration of the material before it. Its reasons range over the medical and scientific material placed before it. Any examination of the material before the tribunal necessarily involves having regard to conflicting medical opinions and, as pointed out in Bushell's case, this is a proper exercise to be undertaken by the tribunal in the performance of its task. This must involve some degree of evaluating or weighing medical opinions in the light of all the material presented to the tribunal. We are not satisfied that any error of law has been shown as a consequence of referring to evaluating or weighing the evidence. 58. In the present matter, the Tribunal considered the evidence of the two expert psychiatrists and formed an opinion about the expert's evidence where the expert's opinions differed. The Tribunal correctly had regard to the basis upon which the experts formed their views. At AB 206 [36], the Tribunal had earlier noted that Dr Dinnen's opinion was based on assumptions made by him with respect to connecting 'all the bits of information together'. 59. The Tribunal correctly formed an opinion about the expert evidence but in doing so did not engage in impermissible fact finding. At AB 211 [50] and [51] the Tribunal explained the basis upon which it preferred Dr Delaforce's opinion. At [51], the Tribunal said: The factual and observational evidence by Dr Delaforce is of critical importance in this case in characterising the behaviour of the veteran and determining whether the requirements set out in the Statement of Principles Concerning PTSD are satisfied. 60. The Tribunal then went on to explain why it concluded that there was no evidence which pointed to factors 2(b)(C) and (D): see AB 212 [53] and [54]. 61. The Respondent submits that the approach taken by the Tribunal in concluding that the elements of the SoP were not satisfied did not involve impermissible fact finding. There was no error on the part of the Tribunal with respect to its treatment of the material before it. (Original emphasis) 77 In my view, these propositions in the respondent's submissions overstate the content of Repatriation Commission v Webb (1998) 51 ALD 575. The Full Court in Webb 51 ALD 575 referred to relevant passages in the judgment of Mason CJ, Deane J and McHugh J in Bushell 175 CLR at 414-416, which, with the emphasis given by the Full Court in Webb 51 ALD at 578-79, were as follows: The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (the raised facts) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. …So, in determining whether a hypothesis is reasonable … it is not decisive that a connection has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists. … However, a hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature". Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous". …the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable. As we have earlier pointed out, it is not the function of s 120(3) to require the commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that … the commission cannot have regard to medical or scientific material which is opposed to the material which supports the veteran's claim. Indeed, the commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connection between the incapacity or death and the service of a veteran. But it is vital that the commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion. If the material does raise a reasonable hypothesis … the commission must determine that the injury, disease or death was war caused "unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination". … The commission will be satisfied beyond a reasonable doubt "that there is no sufficient reason for making [the] determination" if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. (Original emphasis in Webb) 78 These passages make clear that the task in s 120(3) (the case, of course, was decided before s 120A was inserted into the Veterans Act) may involve looking at conflicting material, but not for the purpose of preferring one opinion over another. As the Full Court said in Webb 51 ALD 575, in the passage cited by the respondent in its submissions, regard may be had to considering all material (indeed the terms of the statute mandate that), but the Full Court in Webb 51 ALD 575 did not say that the Tribunal was entitled to prefer one medical opinion over another. Bushell 175 CLR 408 gives no basis for such an approach, indeed it is contrary to it, as is Deledio 83 FCR 82. 79 Here, not only did the Tribunal prefer one medical opinion over another (in respect of conclusions that both doctors said were matters properly for expert opinion), but the opinion that was preferred (that of Dr Delaforce) had within itself preferred some facts (those gained in his own history) to others which he viewed as "inadequate, inaccurate and inconsistent" previously proffered by Mrs Collins in particular. 80 In my respectful view, the Tribunal went further at this stage than it was permitted to. It resolved competing medical opinions, by preferring one which had itself expressed a preference for the rejection of inconsistent facts which were also before the Tribunal. The rejection of the hypothesis in [53] and [54] can be seen as taken from Dr Delaforce's (and the Tribunal's) resolution of the underlying facts. 81 In my view, the acceptance of Dr Delaforce's "opinion as representing an accurate description of the characteristics of the Veteran" (see [49] of the Tribunal's reasons) carried implicitly a rejection of the contested medical opinion of Dr Dinnen, and an acceptance of Dr Delaforce's views that some of the facts about the Veteran given by others which were "inadequate, inaccurate and inconsistent" should be set to one side in favour of reliance upon the history taken by him as more reliable. 82 In my view, this approach was one of factual resolution, not the assessment of the hypothesis contemplated by ss 120(3) and 120A(3) of the Veterans Act. 83 It is not for this Court to say what the answers to the questions posed by ss 120(3) and 120A(3) are, but they should not be reached by a process which resolves the underlying conflicting facts and the conflicting medical opinion in respect of a subject matter to which that opinion is properly directed (cf Cameron 77 ALD at 94 [48]-[50] where the relevant medical report was evaluated on its own terms). 84 For these reasons, I would allow the appeal under s 44 of the AAT Act and remit the matter to the Tribunal to be dealt with according to law. The proceeding under the ADJR Act can be dismissed, since, as Emmett J says, they lack utility in the light of the successful appeal under s 44 of the AAT Act. The Commission should pay the costs of both proceedings.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Solicitor for the Applicant: Dibbs Abbot Stillman

Solicitor for the Respondents: Australian Government Solicitors