Dunlop v Repatriation Commission

Federal Court of Australia (Full Court)|2003-08-27|Before: Ryan J, Kenny JJ

the court: 1 This is an appeal from a judgment of Ryan J dismissing an appeal from a decision of the Administrative Appeals Tribunal ("AAT") which determined that the death of Raymond Dunlop ("the veteran") had not been war-caused. Raymond Dunlop was the husband of the appellant. They were married on 12 December 1944. The veteran committed suicide in 1972. 2 The veteran was born on 25 April 1922. He was graded as medically Class 1 on enlistment and served approximately twenty-two months in a regiment in Western Australia. On 23 March 1944 he embarked at Townsville for operational service in Merauke, a small village on the south coast of (what was then) Dutch New Guinea, approximately sixty nautical miles north-west of the boundary with Papua. After returning from war service in Merauke, the veteran served in infantry training battalions in New South Wales until his discharge on 20 November 1945. He was diagnosed with depression in early 1970 and for a period of about six months he used anti-depressant tablets. The veteran died from a self-inflicted gunshot wound on 24 November 1972 at the age of fifty. 3 On 2 October 1998 the appellant lodged a claim for a war widow's pension and on 4 January 1999 the Repatriation Commission ("the Commission") decided that the death of the veteran was not related to service. The appellant then appealed to the Veterans' Review Board and on 21 October 1999 that Board affirmed the decision of the Commission. The appellant appealed that decision to the AAT on 8 December 1999 and on 17 May 2001 the AAT affirmed the Commission's decision. The appellant then lodged a Notice of Appeal on 13 June 2001 to this Court which was dismissed on 15 November 2002 by Ryan J.

decision of ryan J 19 His Honour rejected a submission that s 9(1) of the Act applied to the present claim. This was because no determination had been made before the death of the veteran that the injury or disease from which the veteran died was an injury or disease determined in accordance with s 9 to have been a war-caused injury. 20 His Honour also rejected a submission that the AAT had failed to distinguish "operational service" from "war service". He considered that there could be no suggestion in this case that the death of the veteran resulted from an occurrence that happened "while he was rendering operational service" so as to come within s 8(1)(a) of the Act. He pointed out that all the remaining paragraphs of s 8(1) were predicated on a connection with the rendering of eligible war service. The reference by the AAT to "eligible war service" in its reasons was therefore, in his Honour's view, entirely appropriate and did not indicate any failure to take into account the evidentiary provisions in ss 120(1), 120(3) and 120A. His Honour did not accept that the AAT had failed to exhaust all the possible connections with war service indicated by s 8(1). 21 A submission was made for the appellant that the AAT had wrongly imposed an onus on the appellant to raise a reasonable hypothesis but this was rejected by his Honour having regard to the terms of the decision. Referring to the decision in Deledio, his Honour observed that all that was entailed by the first of the Deledio principles is that the AAT will commit a reviewable error if the material before it reasonably points to a hypothesis connecting the death with the veteran's war service and the AAT does not then proceed to the second stage of the inquiry directed by the second principle in Deledio. His Honour considered that the AAT had formed the view that the material before it did not raise or suggest any link between the veteran's war service and the depression which was presumed to have led to his death. He pointed out that in this case the hypothesis sought to be raised by the appellant depended on the assumed fact that either or both the veteran's fear "of head hunters" or the death of an officer from his unit precipitated the onset of depression which ultimately resulted in his death. He pointed out that the material before the AAT did not include evidence that the veteran suffered from depression at the time of his return to civilian life and that this was a matter which the AAT was entitled to take into account as part of the circumstances bearing on the reasonableness of the hypothesis. 22 A submission was made that the AAT had failed to take into account relevant considerations related to the veteran's fear of "head hunters", the accidental death of the officer from his unit, and the remote and hostile environment in which he had been required to serve. It was also submitted that the AAT had taken into account irrelevant considerations, including the fact that the last recorded Japanese raid had been in 1943 and that there had been "no hostility or the use of weapons against the enemy". His Honour rejected these submissions and pointed out that the hypothesis asserted was unable to identify any particular exigencies in the veteran's war service as disclosed by the material which, in the light of his known history, could reasonably be regarded as having had the effect of precipitating depression or PTSD. He also rejected a submission that the AAT had "carried over" or "accumulated" doubts in relation to the reasonableness of one part of the hypothesis and applied those doubts to consideration of other parts of the hypothesis. In response to a submission that the reasons of the AAT were unsatisfactory, his Honour concluded it could not succeed. 23 A submission was made that the AAT had been confused in applying the steps set out in Deledio and that there had been an overlapping and confusion of the steps which were said to be discrete. His Honour noted that the AAT pointed out that there was absent from the facts in the present case any proximity in time between war service and the onset of depression or some other fact connecting the veteran's death with war service. He considered that it was open to the AAT to conclude that no reasonable hypothesis had been raised. His Honour observed that there may be some circularity in the AAT's alternative finding that any hypothesis which might have been raised did not establish the relation necessitated under the relevant SoP, but he considered this was because cl 4 of the SoP relating to suicide, which dictates that the factors set out in at least one of the paragraphs in cl 5 must be related to any relevant service, requires a relationship to the relevant service rendered by the veteran and therefore imports into the SoP the first test postulated by the Full Court in Deledio. 24 His Honour did not discern any error in the AAT's primary finding that the material did not raise or point to the requisite hypothesis. He considered a number of other matters but rejected them as lacking substance. Finally, his Honour turned to the question of whether the AAT had wrongly required the appellant to raise or point to a reasonable hypothesis and concluded that, on a proper reading of the AAT's reasoning, there was no such error by the AAT. The primary Judge rejected arguments that the AAT had wrongly imposed an evidentiary onus on the appellant. 25 It was also contended that the AAT had fallen into error in stating that it could not be satisfied that the hypothesis connecting death with war service was reasonable. His Honour considered that the use of the word "reasonable" was no more than a restatement of its conclusion that his war service did not raise the essential link between depression which precipitated death and the circumstances of war service. 26 Finally, his Honour dismissed an argument based on a decision in Hill v Repatriation Commission (2001) 66 ALD 293 on the basis that it was distinguishable from the present case. 27 His Honour concluded that no error of law had been identified in the AAT reasons and therefore he dismissed the application with costs because the conclusion reached by it was reasonably open to it.

Reasoning on appeal 28 The primary question for consideration is whether a reasonable hypothesis was pointed to on the material before the decision-maker within the principles set out in the first step in Deledio. If this requirement is not satisfied then there is no need to consider the other arguments raised for the appellant. 29 Section 120(1) of the Act requires that where a claim for a pension in respect of the incapacity from disease or death of a veteran relates to operational service the Commission must determine that the injury was a war-caused injury unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. 30 By virtue of subs (3), in applying subs (1) the Commission must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the injury or death was war-caused if after consideration of the whole of the material before it, it is of opinion that the material does not raise a reasonable hypothesis connecting the disease or death with the circumstances of the particular service rendered by the person. 31 By subs 120A(3) a hypothesis connecting a disease contracted by a person or death with the circumstances of any particular service is reasonable only if there is in force a Statement of Principles, determined under subs 196(B)(2) or (11), that upholds the hypothesis. 32 The principal submission for the appellant is that the AAT misapplied the evidentiary provisions referred to above and the directions of the Court in Deledio as to the staged process by which a determination must be made. It is said that the AAT prematurely proceeded to evaluate the material supporting the hypothesis in undertaking the first stage of its consideration rather than reserving this for the last stage. This is because, so it is said, the AAT combined or telescoped the discrete steps to be taken at different stages thereby making it impossible to properly consider whether the material pointed to the hypothesis of connection and whether it was reasonable given the provisions of the SoP for suicide. It is submitted that the AAT did not examine the whole of the material to see whether it pointed to a hypothesis of connection with service. It is said that the AAT did not consider Dr Cole's report and evidence, the statement of the appellant or her oral evidence, or the inferences which could reasonably be drawn to support the hypothesis in relation to the first step. It is argued that the AAT dismissed the possibility of making a reasonable assumption by erroneously categorising it as a hypothesis which was simply left open. This, so it is submitted, ignores the fact that it is necessary to see whether the material points to the hypothesis being reasonable. At Stage 1 of Deledio the AAT was not permitted to make value judgments on the material but it did so. This is said to have occurred by accepting the evidence of the military historian and rejecting that of the widow that there were "head hunters". 33 There is no doubt that the AAT had regard to the principles in Deledio. It applied the first step and the third step and found against the appellant's claim. There is no legal necessity for the AAT to proceed from step to step in any mechanical manner. The AAT reasons do not indicate that any onus was placed on the appellant. The AAT cited East where the Full Court pointed out that a reasonable hypothesis requires more than a possibility, something which is not fanciful or unreal, or inconsistent with the known facts and must be a hypothesis pointed to by the facts even though not proved upon the balance of probabilities. The AAT appreciated that it would be a "rare" case where a hypothesis could not be established connecting service with injury, disease or death and went on to say: "However, on the material before us we struggle to comprehend what the hypothesis could be in the present circumstances." 34 This statement indicates that the AAT had regard to the material before it and asked itself the correct question, namely, whether the material raised the necessary hypothesis, with a full appreciation that the task of raising an hypothesis did not pose a high threshold. The AAT was conscious that it was necessary to determine whether each essential element in such a hypothesis had been raised or pointed to by the material as indicated by its reference to the quotation from Kenny J in Connors at [16]. In [60] of the AAT reasons in this case, it is apparent that the decision was based on the absence of an essential "link" or "element" in the hypothesis, namely, the absence of material which pointed to contribution by service. The AAT, in our view, correctly considered that the depression suffered by the veteran must be connected to service by a reasonable hypothesis to that effect and it determined that there was insufficient material which pointed to that connection and concluded therefore that there was no reasonable hypothesis. This was a decision for the AAT, and not for this Court. 35 In reaching its conclusion the AAT did not, on a fair reading of its reasons, reject or evaluate the comparative weight or acceptability of the material but simply found that on examination of all the material no reasonable hypothesis was raised or pointed to. There is no reference in its reasons to weighing the evidence or comparing the evidence at that point. 36 The material before the AAT indicated that:

the veteran was in Merauke as a member of a light ant-aircraft battery for only seven months from March 1944;
there was no record of engagement with the enemy or hostile fire;
the appellant said that when the veteran returned from war service he was not depressed but was grown up and more mature and retained a sense of humour on his return;
the veteran did not mention any incident in New Guinea but did refer to accidents;
Mr Piper, the military historian, said the conditions were quiet during service;
there would not have been a problem with "head hunters" and the troops had time to relax in safety; and
the first treatment for depression by a general practitioner was in June 1969. 37 Dr Cole, a psychiatrist, reported that the symptoms described by the appellant pointed to post-traumatic stress disorder but the information was incomplete and he was not aware of the stress during the war but assumed service was stressful. He could not identify a particular stressor and this created diagnosis difficulties. Dr Cole speculated that a person separated from family for several years enduring hardships could come to suffer from depression. He said there was an interval of seven years between discharge from the army and onset of clinical depression. 38 Dr Walton could find nothing to connect the depression with war service. He accepted the material pointed to symptoms of depression in 1969 and there was difficulty adjusting to civilian life, but this did not point to depression. The retention of a sense of humour and greater maturity did not indicate depression. 39 It was open to the AAT to make a finding that there was no connection raised or pointed to by the material between the disease and death with war service of the veteran. It is clear that the AAT appreciated that his service was operational service and was eligible service. It is also clear that his service was within the description "eligible service" and also "operational service." 40 After [60] in its reasoning, the AAT considered an alternative approach on the assumption, which it was not prepared to find was made out namely, that there was some material which raised a hypothesis. The AAT however said that it could not be satisfied that such a hypothesis was reasonable because at best it would be a hypothesis "left open", which is not sufficient, and reference was made to East. 41 Where the term "reasonable" is mentioned in [61] we consider that the reasons are referring to a requirement for a hypothesis which is not "fanciful or unreal" and which is consistent with the known facts. There is no error in adopting that approach consistent with authority. The reasons proceed in [62] to find that the third stage of Deledio was not satisfied because the hypothesis does not contain one or more of the factors which are required as a minimum under the SoP. We can discern no error of law in this determination. Nor is there any substance in the submission that the finding involved any importing of doubt from one part of the exercise or hypothesis to another element. The statements in the final paragraphs of the reasons are in the alternative and there is no reference to acceptance or rejection of any evidence. 42 We do not accept in this case that the AAT has failed to provide reasons as to why it affirmed the Commission's decision that the veteran's death was not war-caused because these are disclosed with sufficient particularity in the final paragraphs of its reasons for decision. This is not a case where it is necessary to speculate or make inferences as to the way in which the AAT reached its decision in order to be able to challenge the basis for the findings and determinations of the AAT. The findings of fact and the recitation of the evidence, together with the conclusions and reasons for decision do not disclose any omission which could amount to an error of law. 43 The appellant's counsel advanced a submission that the depression and death might be attributed to separation from his family during his war service but we see no basis in the evidence for any such hypothesis in this case. 44 It is necessary, of course, to approach the decisions of the AAT with an eye not attuned to finding error. It is not sufficient for the appellant to simply point to a failure to deal with any argument that might have been raised or with every possibility that could have been adverted to, provided that the AAT addressed and dealt with the substance of the significant issues raised. The AAT in this case has sufficiently indicated the process of reasoning and its findings on material questions of fact in support of its decision: cf McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609. The conclusion of the AAT was open to it on the evidence. 45 For the above reasons we are not persuaded that any error of law has been disclosed in the reasoning of the AAT or of his Honour, the primary Judge. Therefore, the appeal is dismissed with costs.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Tamberlin and Kenny.

Associate: Dated: 27 August 2003 Counsel for the Appellant: D De Marchi

Solicitor for the Appellant: De Marchi & Associates

Solicitor for the Respondent: Australian Government Solicitor

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