CONSIDERATION
26 It is convenient to deal with the latter argument first. In my judgment it represents a misreading of the Tribunal's reasons in the passages quoted in par [22] above. As I read that passage, the finding of the Tribunal that: '… there is no evidence to show when this condition became clinically manifest' is a finding in relation to the condition of alcohol dependence, rather than to the condition of alcohol abuse. The focus of the Tribunal's consideration in that paragraph of its reasons is the condition of alcohol dependence. The concluding sentence refers specifically to alcohol dependence. The subsequent paragraph in the reasons specifically addresses alcohol abuse. Earlier in the reasons, the Tribunal noted that alcohol dependence and alcohol abuse are distinct diseases. It was clearly aware that they are separate conditions and has approached them separately. It has separately addressed the finding as to when there was the clinical onset of alcohol abuse. It has made that finding on the basis of the applicant's evidence, albeit apparently with reservations as appears in the passage in par [22] above. Its approach to the timing of the clinical onset of alcohol abuse is consistent with the views of the Full Court (Heerey, Moore and Kiefel JJ) in Lees v Repatriation Commission [2002] FCAFC 398; (2002) 36 AAR 484 at [13] - [14], 488 - 489.
27 In the light of that conclusion of fact, the Tribunal reached the view that there was material raising a reasonable hypothesis connecting the disease with the circumstances of the applicant's war service, and that there is no sufficient ground for the Tribunal to be satisfied beyond reasonable doubt to determine that the disease was not war-caused. In accordance with s 120, therefore, it determined that the disease was war-caused.
28 As to the second of those two points, it is correct that in a relatively indiscriminate way in its consideration of the evidence and the findings, the Tribunal has used the expressions 'stressful event' and 'severe stressor' and 'stressor' somewhat randomly. However, I do not think the Tribunal is shown to have misunderstood the test which had to be applied for the purposes of the Alcohol SoP. It set out the definition of 'experiencing a severe stressor'. In reciting the things which it had to address for the purposes of considering that aspect of his claim, it again identified the need to address, relevant to factor 5(b) of the Alcohol SoP, whether the applicant experienced a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse, and it again adopted the definition of experiencing a severe stressor in its reasons. In considering the evidence of the applicant and others, because the evidence related to both the claim for pension in respect of alcohol dependence or alcohol abuse, and in respect of generalised anxiety disorder, the Tribunal seems to have used the expression 'stressful event' to encompass within its factual consideration the matters relevant to each of the SoPs referred to.
29 The Tribunal referred to the seven stressful events about which the applicant gave evidence. It also had regard to the evidence of the respondent. Counsel for the respondent acknowledged that its evidence, in particular the report of Commodore Mulcare dated 7 February 2003, was intended to lay a foundation for persuading the Tribunal that the applicant was being untruthful about the particular stressful events upon which he had placed reliance. When coming to the findings about the particular instances which it accepted, the Tribunal referred to those incidents as 'a stressor' or as 'a relevant stressor or stressful event as provided in the SoPs'.
30 The Tribunal accepted that there were occasions when the applicant and his colleagues were required to carry faulty or suspect shells from a magazine or gun turret to the rear of the ship for disposal. The Tribunal accepted that each such event constituted a stressful event for the applicant. It explained why. It then concluded that it was satisfied that each such occasion was capable of constituting and did constitute a relevant stressor or stressful event as provided in the SoPs. It also accepted that on one occasion an object in the water which turned out to be mere flotsam and not a mine, but was near to the ship, may have been of concern to the applicant having regard particularly to his watch keeping duties. It accepted that the incident had the capacity to be a stressor and in its opinion did in fact stress the applicant. Thirdly, it found there to have been a 'stressor' in a confrontation between HMAS Brisbane and several enemy patrol boats, although the applicant did not actually see those enemy boats. The crew were ordered to action stations and the applicant and others in the gun magazine were locked in to their action stations until anticipated engagement had been completed. The gun magazine is below the waterline. He entertained considerable fear that the HMAS Brisbane was then in serious trouble. The Tribunal accepted that the applicant was seriously stressed by the event.
31 It is trite to say that the reasons for decision of the Tribunal should be read sensibly, and not with an eye keenly attuned to the perception of error. In Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 Brennan CJ, Toohey, McHugh and Gummow JJ said:
'These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.'
32 I consider that the Tribunal, notwithstanding the loose use of the expression 'stressful event' or 'stressor' from time to time in its reasons for decision, has not failed to appreciate that the expression 'experiencing a severe stressor' has a particular meaning as defined in the Alcohol SoP. I also consider that it has not failed to apply the correct meaning of that expression in its consideration of the applicant's claim to a pension entitlement for alcohol abuse under the Act, or in its application of the Alcohol SoP to its consideration of that claim.
33 The use of the term 'stressful events' appears in the applicant's statement of issues, facts and contentions recorded by the Tribunal, but it then correctly identifies those claims must be addressed in accordance with the Act and the three SoPs referred to. It specifically records the definition of 'stressful event' in the 1994 Anxiety SoP and to a case discussing its meaning, as well as the definitions of 'severe psychological stressor' in the 2000 Anxiety SoP and 'experiencing a severe stressor' in the Alcohol SoP. At the end of its discussion of the medical evidence, the Tribunal identifies the relevant issues under each of the three SoPs, again in terms which reflect accurately the different 'stressor' expressions in each of them. To that point in its reasons, it seems clear the Tribunal was aware of the different definitions.
34 It is only in the Tribunal's consideration of the evidence of the applicant and the respondent that the Tribunal might be seen to have treated the three different definitions as one, by its use of the expression 'stressful events'. However, I do not consider it did so. The focus of that part of its reasons is upon whether any of the seven claimed stressful events occurred, rather than upon their particular character under one or other of the SoPs. The respondent urged the Tribunal to find the applicant was untruthful about those events. Ultimately the Tribunal was satisfied that three of them had occurred. Its findings are summarised in [22] above. But I do not consider the Tribunal's consideration of that evidence shows that it misunderstood, or misapplied, the Alcohol SoP. It was not at that point addressing the SoPs at all, except to the extent of determining what the applicant had in fact experienced during his operational service.
35 In the 'Discussion' section of its reasons, the Tribunal posits the question whether the 'stressful events' which it found to have occurred took place within two years immediately before the clinical onset of alcohol dependence or alcohol abuse: cl 5(b) of the Alcohol SoP. The following discussion relevantly concerned the time of onset of the clinical manifestation of alcohol dependence and of alcohol abuse. Ultimately the Tribunal found the applicant suffered alcohol abuse within the period specified in cl 5(b) of the Alcohol SoP from the time he experienced the 'stressful events'.
36 What is missing from the discussion at that point is explicit consideration of whether the 'stressful events' which the Tribunal found the applicant to have suffered amounted to him 'experiencing a severe stressor' as defined in the Alcohol SoP. But in my judgment, that is because the Tribunal had already reached the view that they each amounted to the applicant 'experiencing a severe stressor' as defined in the Alcohol SoP. Of the occasions when the applicant was required to dispose of faulty shells, the Tribunal said:
'I am satisfied that each such occasion … was capable of constituting and did constitute a relevant stressor or stressful event as provided in the SoPs.'
37 The findings about the occasion when the applicant feared his ship might hit a mine, and when the ship was ordered to action stations through a fear of attack, were described as 'stressors', and the latter also as having 'seriously stressed' the applicant.
38 In context, I consider those findings indicate the Tribunal remained aware of the different 'stressful event' descriptors in each of the three SoPs it was considering, and which it had explicitly recognised earlier in its reasons. Although using a shorthand expression, in my view each of the findings was a finding that the applicant experienced a severe stressor as that is defined in the Alcohol SoP. I am not persuaded that the Tribunal misdirected itself in that regard as counsel for the respondent contended, or that it misapplied the relevant definition to the facts as it found them to be.
39 I turn to consider the principal contention of the respondent.
40 In my judgment the Tribunal has erred in its overall consideration of the claim of the applicant for pension entitlement in respect of alcohol abuse. I have referred above to the headings to the sections for the Tribunal's reasons. There is no particular passage in the Tribunal's reasons which is identified as demonstrating an erroneous understanding of the provisions of the Act. It is accepted that the Tribunal has accurately recited the issues which it was required to address under the Act. It has identified the relevant SoPs. It is not suggested that it was inappropriate for the Tribunal to discuss and evaluate the medical evidence, or to discuss and evaluate the evidence of the applicant and Peter Werner, or to discuss and evaluate the respondent's evidence. But it is contended that the sequence in which that inquiry was made in the present circumstances demonstrates error on the part of the Tribunal by a failure to show cognisance of, and apply, the four stage test described in Deledio and set out above. It is contended that having identified the relevant requirements of the Act, the Tribunal did not in fact address the first and second steps in Deledio but launched straight into an assessment of the medical evidence and then of the other evidence. It is contended that the Tribunal therefore erroneously embarked upon matters of proof and to making findings of fact and that it wrongly applied the balance of probability test to its consideration, including in particular the issue of clinical onset and the occurrence of severe stressors.
41 Although the Tribunal has not misstated the relevant provisions of the Act, or how it should approach the claims of the applicant, it has not explicitly taken the first step required by s 120(3), namely whether the material points to a hypothesis connecting the applicant's alcohol abuse with the applicant's operational service. However, its subsequent identification and consideration of the Alcohol SoP indicates clearly enough that it took that step. The concluding section of its reasons set out in [23] above includes the finding that 'there is material raising a reasonable hypothesis connecting the disease with the circumstances of the applicant's war service'. It is necessarily implicit in that finding that the first step required by Deledio has been taken. As a matter of logic, if the circumstances about the applicant's operational service as found by the Tribunal do give rise to a reasonable hypothesis connecting this alcohol abuse with his operational service, the claims about those circumstances must, in the Tribunal's mind, give rise to a hypothesis connecting his alcohol abuse with his operational service.
42 The respondent accepted that the applicant now suffers from alcohol abuse (and from generalised anxiety disorder). Its contention before the Tribunal was that there was no hypothesis, and so no reasonable hypothesis, raised by the material before the Tribunal connecting the applicant's diseases with the circumstances of his operational service. It disputed the claimed circumstances of his operational service. The Tribunal has not expressly looked to the claimed circumstances, without fact finding, to see if they pointed to a hypothesis connecting his diseases with the circumstances of his war service. Instead, it has made findings of fact about those claimed circumstances, on the balance of probabilities. And it has then addressed the relevant SoPs.
43 As in Mason v Repatriation Tribunal [2000] FCA 1409 per Weinberg J at [69] - [71], I am satisfied that the Tribunal, whilst not explicitly taking the first of the steps required of it in accordance with Delidio, must have considered and accepted the first step required by s 120(3) as explained in Delidio concurrently with its examination of the Alcohol SoP.
44 As required by the second and third steps specified in Delidio, the Tribunal has identified the Alcohol SoP, and considered and determined that the hypothesis is reasonable, that is that the condition of alcohol abuse fitted the template of the Alcohol SoP. It identified the essential elements necessary to fit that template. Relevantly, it recognised that factor 5(b) required the minimum factors as being the applicant experiencing a severe stressor within the two years immediately before the clinical onset of alcohol abuse. It also recognised the symptoms necessary for a condition to fall within the description of alcohol abuse, and the diagnostic criteria. As the respondent accepted that the applicant suffered from alcohol dependence or alcohol abuse, it should have focussed its attention upon whether the applicant's hypothesis involved the applicant experiencing a severe stressor, and if so whether that experience was within two years immediately before the clinical onset of the condition of alcohol abuse. It observed that, once a reasonable hypothesis exists on those issues, that is connecting the operational service with the condition in accordance with the Alcohol SoP, s 120(1) then 'effectively imposes an onus of disproof beyond reasonable doubt'. The Tribunal appears, therefore, to have correctly directed itself about how it should approach its task.
45 It is at the third stage of the Delidio test that, in my judgment, the Tribunal has fallen into error. Its consideration of the evidence of the applicant, of the respondent and of the medical evidence indicates that the Tribunal embarked upon a fact-finding process to determine whether there was a reasonable hypothesis in accordance with the Alcohol SoP raised by the material connecting in the necessary way the applicant's operational service with his condition of alcohol abuse. It made positive findings about the occasions when the applicant claimed to have experienced a stressful event, their character as falling within the definition of 'experiencing a severe stressor', and the onset of clinical signs of alcohol abuse within the two year period of the applicant having experienced the three severe stressors which it found to have occurred.
46 It was not required by the second and third stages explained in Delidio that the Tribunal should have embarked upon that fact-finding exercise. The Full Court in Delidio at 96 agreed with the observations of Heerey J at first instance: Delidio v Repatriation Commission (1997) 47 ALD 261 at 275 that:
'… it is necessary to repeat that the SoP has no function in relation to the proof or disproof (under s 120(1)) of the particular facts of a veteran's case. The SoP's function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent - so that the SoP can "uphold" the hypothesis …'
and
'If the hypothesis is reasonable the claim will succeed unless:
(iv) one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v) the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact.'
47 If the applicant's claim for pension entitlement in respect of alcohol abuse had been unsuccessful, he may therefore have had grounds to have the Tribunal's decision set aside. Its erroneous approach also permeates its consideration of the claim based upon generalised anxiety disorder. As I understand it, that is the reason why the respondent consents to the appeal being allowed and the remittal to the Tribunal of the applicant's claim for pension entitlement in respect of generalised anxiety disorder. Although the Tribunal appears to have recited the correct approach under s 120(3), its subsequent analysis of the claims and the way in which it has made findings of fact leading to its conclusions indicate that it has not in fact applied the correct approach under s 120(3). I do not think this is a case where the Tribunal's process did not involve it 'finding facts' as required ultimately by s 120(1) and, as explained in Delidio at the fourth stage. Its consideration went beyond whether the claims made (by evidence) raised as a minimum the factors specified in the Alcohol SoP: cf Woodward v Repatriation Commission (2003) 200 ALR 332; [2003] FCAFC 160 (Woodward).
48 In Woodward, it was contended that the Tribunal had embarked upon the task of finding facts prematurely when it ought to have been concerned solely with the anterior question, namely whether the material fitted or was consistent with the template of the relevant SoP. The issue concerned whether the appellant in that case had experienced a severe stressor. The Full Court (Black CJ, Weinberg and Selway JJ) at 351 - 352, [110] said:
'We reject this submission. It is true that the AAT discussed the objective and subjective elements in the definition of PTSD, and suggested that a similar analysis might apply to the definition of "experiencing a severe stressor". However, its opinion in that regard was, in our view, a digression from its primary reasoning. In substance, the AAT simply found, as a fact, that Mr Woodward's evidence about his experiences in Vietnam did not point to his having experienced a severe stressor, as defined in the SoPs. In other words, the hypothesis raised by that material, did not fit the template. Deledio makes clear that fact finding should only occur at the final stage of the process. In our view, the AAT was not "finding facts", in any relevant sense, when it assessed the material before it, and considered whether it "pointed to" the factors contained in the template. The AAT was fully aware of the limited nature of the task confronting it.'
49 I do not think the Tribunal's approach in this matter can be so categorised. It found that certain of the events about which the applicant gave evidence (and which were contested by the respondent) did constitute the applicant experiencing a severe stressor, and described those events as 'genuinely stressful events'. It identified the question: has it been shown that the applicant suffered alcohol abuse within the required two year period. It positively found, with some hesitation, that the applicant 'was suffering from alcohol abuse within the prescribed two year period'. It should have asked whether the claimed events fitted the template of the Alcohol SoP. If they did, provided there was also a fit with the other requirements of the template, the reverse onus under s 120(1) applies to the fact finding required of the Tribunal. It is only at that point that the Tribunal was required to consider whether the facts contested by the respondent were disproven by the respondent beyond reasonable doubt.
50 Having made the findings of fact referred to, including that the applicant suffered alcohol abuse within the prescribed two year period, the Tribunal observed:
'There is material raising a reasonable hypothesis connecting the disease with the circumstances of the applicant's war service, and there is no sufficient ground for me to be satisfied beyond reasonable doubt for determining that the disease was not war-caused. I accordingly determine that it was so caused.'
51 The applicant contends that ultimately the Tribunal thus demonstrates that it correctly addressed the requirements of ss 120(1) and (3) and s 120A.
52 However, following that passage in its reasons, the Tribunal said:
'There is strictly no need to consider whether the applicant establishes a reasonable hypothesis in reliance on the alternative factor called in aid under SoP No 76 of 1998 paragraph 5(a), however as I have already stated above I am unable to find that he was suffering an anxiety disorder at the time of the onset of the alcohol abuse so he would not meet this criterion in my view.'
Paragraph 5(a) of the Alcohol SoP refers to the applicant suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse. I think that passage confirms that the Tribunal has misunderstood its task. It did not accept the claim based on generalised anxiety disorder because it was not satisfied that 'the evidence establishes that there was a clinical onset' of that condition within two years of 'any of the stressful events which I have found proved'. The respondent accepts that the Tribunal erred in approaching the issue that way. For the reasons I have given, I agree. The reference to a reasonable hypothesis in the context of the Tribunal's reasons, including that referred to in [23] above, does not therefore demonstrate that ultimately it correctly approached its task.
53 Given the Tribunal's erroneous approach to the application of s 120(3) and the Alcohol SoP, it was inevitable that the Tribunal would not be satisfied beyond reasonable doubt that there was no sufficient ground for determining that the applicant's alcohol abuse was not war-caused. Its findings of fact on the balance of probabilities meant that none of the facts necessary to support the hypothesis were disproved beyond reasonable doubt. The respondent did not attempt to prove beyond reasonable doubt the existence of some other fact inconsistent with the hypothesis. The application of s 120(1), that is the fourth step explained in Delidio, was in the circumstances a formality.
54 However, counsel for the applicant expressly did not pursue the contention that, even if the Tribunal misunderstood and so misapplied the approach required by ss 120(1) and (3) and s 120A, its decision should stand because it would be futile to remit the matter to the Tribunal for rehearing: Compare Morales v Minister for Immigration & Ethnic Affairs (1995) 60 FCR 550; Arnott v Repatriation Commission (2001) 106 FCR 83; McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609.
55 As I am persuaded that the Tribunal's approach does disclose that it did not apply the correct approach to consideration of the claim for pension entitlement in respect of the disease known as alcohol abuse (and in respect of the disease known as generalised anxiety disorder), I will set aside the Tribunal's determination in the applicant's favour in respect of alcohol abuse. I remit to the Tribunal for reconsideration according to law the applicant's claim to pension entitlement in respect of the disease called alcohol abuse.
56 The parties were agreed that, in the event, that the respondent's cross-appeal succeeded, there should be no order for costs of either the application by way of appeal or the application by way of cross-appeal. That is a sensible course with which I agree.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.