consideration of the grounds of appeal
23 There are two grounds of appeal which can be dealt with shortly.
24 The first ground of appeal argued orally was that the Tribunal limited the totality of the applicant's operational service by not taking into account all of the periods of operational service between 11 November 1966 and 5 February 1967. The submission is based upon a document from the Department of Defence in the appeal book. However, in my judgment, it is based upon a misreading of that document.
25 The document sets out the periods of time that the appellant was posted to HMAS Sydney, including the period from 11 November 1966 to 5 February 1967. The document refers to the Instrument signed by the Minister for Defence Industry, Science and Personnel on 23 December 1997, which is also included in the appeal book. The Instrument determines the periods of operational service in respect of the persons who served on a series of vessels in the defence forces over that period. In respect of HMAS Sydney, the periods of operational service were the seven periods which the Tribunal noted, each of which are part of the periods during which the appellant was posted to HMAS Sydney. Although the appellant served on the HMAS Sydney between 11 November 1966 and 5 February 1967, the Instrument does not support the assertion that that period of service was operational service. There is no other evidence that it was operational service. Accordingly, I do not accept that the Tribunal failed to take into account a period of operational service as alleged. It has not been shown that the Tribunal erred either in fact or in law in determining the periods of the appellant's operational service.
26 It was next contended that the Tribunal erred in law in failing to take into account the beneficial nature of the Act, and in particular the provisions of s 119 of the Act. Section 119 relevantly provides that the respondent, and on review the Tribunal, in conducting a determination on a claim or application for benefits under the Act, is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just. The Tribunal by s 119(1)(g) is directed to act according to substantial justice and the substantial merits of the case without regard to legal form and technicalities. Finally, s 119(1)(h) provides that the Tribunal:
'(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.'
27 Jacobson J said in Parnell-Schoneveld v Repatriation Commission (2003) 74 ALD 37; [2003] FCA 153, at 43, [46] that s 119(1)(g) did not entitle the Tribunal to ignore the clear inferences arising from the circumstances of the particular case. Grundman v Repatriation Commission (2001) 66 ALD 125; [2001] FCA 892, at 135, [33] per Gray J explained why s 119(1)(g) of the Act did not permit the Tribunal to disregard the statutory criteria for eligibility for benefits under the Act. Gray J there said:
'This leaves the argument based on s 119(1)(g). Counsel for the applicant suggested that the requirement to act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities, in some way required the AAT to take a more benevolent view of the applicant´s case than it would otherwise have done. This argument has been put many times. It has been rejected just as many times. Examples are gathered in the judgment of Wilcox J in Kumar v Immigration Review Tribunal (1992) 36 FCR 544 at 554 -556. To them might be added Repatriation Commission v Flentjar (1997) 47 ALD 67, at 72 -73 in which Spender J cited Thanh Phat Ma v Billings (1997) 142 ALR 158 at 164, before pointing out that s 119 does not permit the tribunal to disregard the statutory criteria for the grant of a pension at the special rate. It cannot be suggested that s 119(1)(g) is intended to provide an easy route to a favourable decision for a veteran, any more than it could be suggested that the provision was intended to provide such an easy route for the Repatriation Commission. The argument should be put to rest entirely.'
28 In Roncevich v Repatriation Commission [2002] FCA 1458, at [30], I determined that those observations were equally applicable to s 119(1)(h) of the Act. Jacobson J in Parnell-Schoneveld agreed at [46]. That view reflects the view of the Full Court (Northrop, Sundberg, Marshall and Merkel JJ) in Repatriation Commission v Bey (1997) 79 FCR 364 at 373 - 374, concerning s 119(1)(h) of the Act. An appeal from the decision in Roncevich was unsuccessful: Roncevich v Repatriation Commission (2003) 75 ALD 345; [2003] FCAFC 146, but there was no ground of appeal focusing upon s 119 of the Act. Special leave to appeal to the High Court was granted from the decision of the Full Court on 8 October 2004: Roncevich v Repatriation Commission [2004] HCATrans 379, but again special leave to appeal did not relate to the proper construction or operation of s 119 of the Act.
29 Accordingly, whilst the directions of s 119(1)(f), (g) and (h) are of relevance to the way in which the Tribunal proceeded, they cannot remove from it the responsibility of applying ss 120 and 120A and other relevant provisions of the Act according to the proper terms. I do not think the argument therefore really advances the appellant's case on this appeal.
30 It is appropriate now to address the attack upon the Tribunal's reasoning as allegedly failing to comply with, and to apply, the relevant provisions of the Act.
31 It is first complained that the Tribunal failed to apply the decision-making process required by ss 120(1) and (3) and 120A(3) of the Act as explained in Deledio in the passage set out above. It is correct that the Tribunal does not explicitly refer to those provisions in the course of its reasons. Nor does it explicitly refer to the four step decision-making process to which the Full Court in Deledio referred. That does not mean it did not adopt those processes.
32 I have set out the course of the Tribunal's reasoning above. In the course of its reasoning, after identifying the applicant's claims, it described three hypotheses said to be put forward by the appellant as constituting stressors which precipitated his AA and his PTSD. It then referred to the relevant SoPs. It then said at [17]:
'The level of stress required to satisfy the SoP and hence to qualify as a stressor sufficiently traumatic to precipitate a psychiatric illness must be more than a momentary fright, a merely unpleasant experience, or some general feeling of apprehension.'
In addressing whether the three experiences or categories of experience to which the appellant referred could amount to severe stressors for the purposes of the SoPs, it noted the appellant's evidence that his vulnerability to, or perception of, the significance of the scare charges was exacerbated by some anecdotal information from a friend of his father's about the sinking of the Bismark in World War II, and by the sense of pervasive danger whenever HMAS Sydney was in Vung Tau Harbour, together with the accumulative effect, causing an increased sensitivity, during his seven visits to Vung Tau Harbour. It then concluded:
'I regard it as a borderline case. I do not accept that the experience of scare charges on one trip to Vung Tau would meet the qualification of severe stressor. However, I accept what Dr. Parker said about the accumulative effect that the scare charges may have had over seven trips, especially if they were shaking the hull of the ship. I accept that being in fear for half an hour, of being torpedoed could be a severe stressor. I also accept that being only about 1100 yards from a full scale battle could amount to experiencing a severe stressor. I am prepared to find that the three claimed stressors qualify as "severe stressors" within the meaning of that term in the relevant SoPs.'
33 As noted above, the conclusion to that process of reasoning was to accept that the hypotheses raised were reasonable provided that the events occurred in the manner claimed by the appellant.
34 In my view, the Tribunal's reasoning to that point reflects, to a point, the first three steps which the Full Court in Deledio identified as appropriate. It identified hypotheses connecting the appellant's AA and PTSD with his operational service. It identified the relevant SoPs. It determined, but in a qualified way, that the hypotheses raised were reasonable. Its qualified conclusion on that topic is set out at [19] above, namely that the hypotheses were reasonable provided the events occurred in the manner claimed by the appellant.
35 The Tribunal then proceeded to analyse the evidence of Commodore Mulcare. Apart from referring to his evidence and the documents to which Commodore Mulcare referred, it did not otherwise refer to evidence about the three stressors. As noted, there were differences also in the way in which the Tribunal described the three stressors claimed to have been experienced by the appellant in the course of its reasons. And the reasoning is prefaced by the proviso just mentioned to its acceptance of the hypotheses.
36 The next step, and the final step, as explained in Deledio, was for the Tribunal to determine whether it was satisfied beyond reasonable doubt that the appellant's injuries or diseases were not war-caused. It is only at that stage that it was required to find facts from the material before it. On its proper construction, in my view, the Tribunal did proceed to find the facts material to whether the hypotheses were made out.
37 However, I have two reservations as to whether the Tribunal adopted the decision-making process required by the legislation. The reservations concern first, the way in which the Tribunal identified the hypotheses put forward by the appellant, and secondly, whether it properly then applied s 120(1) of the Act or whether it embarked upon a determination of findings of fact on the balance of probabilities rather than to determine whether it was satisfied beyond reasonable doubt that the appellant's AA and PTSD are not war-caused.
38 In my judgment, the Tribunal overstated the nature of certain of the hypotheses in such a way as to lead it to reject particular features of the facts asserted by the appellant and therefore to reject the hypotheses put forward when it was inappropriate to do so. I have also reached the view that, because of the way in which the Tribunal approached the analysis of the evidence, it has not in fact made a determination that certain facts upon which the hypotheses it identified were based did not occur beyond reasonable doubt, but has looked to determine on the balance of probabilities whether those facts occurred or did not occur, and being satisfied on the probabilities that they did not occur, it then applied the formulaic conclusion at the end of its reasons in terms of s 120(1). I must of course explain why I have reached those conclusions.
39 Ultimately, the Tribunal rejected the three hypotheses, but for particular reasons:
(1) in respect of the submarine incident, the Tribunal was satisfied that the HMAS Sydney did not go onto 'full ahead' for at least 20 minutes in order to avoid a submarine;
(2) in respect of the direct threat incident, the Tribunal was satisfied that the appellant was not terrified because of close proximity to the TET offensive, because he did not observe a major battle 'in close proximity to the HMAS Sydney' for the following reasons: on the day on which the alleged incident occurred, namely 3 February 1968, there was no dangerous battle raging on shore a mere 1100 yards away; the Captain would not have invited guests for lunch aboard on the day when such a dangerous battle was occurring; and the appellant's sensitivity would not have been intensified by reason of what he had heard had happened to the HMAS Hobart, because the incident in which the HMAS Hobart was damaged did not occur until July 1968;
(3) in respect of the scare charges issue, the Tribunal was satisfied that scare charges did not create events which were sufficiently traumatic to cause the appellant's psychiatric illnesses, because it did not accept that on a regular basis scare charges caused the hull of the aircraft carrier to 'shudder' or to 'shake', partly by reason of the location of the boiler room surrounded by ballast below and fuel or water tanks on either side between it and the hull, and partly by reason of the frenetic activity in the course of unloading including by barges and helicopters, so that the Tribunal concluded that the appellant's concern about the intensity of the force of the scare charges on the ship was 'grossly exaggerated'.
40 The hypotheses put forward by the appellant must be seen in the context of his unchallenged evidence that on many occasions during the course of his service he believed that his life was in danger, and that frequently he had major concerns for the safety of himself and others aboard the HMAS Sydney. He referred, without challenge, to the experience of seeing troops returning from Vung Tau, many injured, and to constantly listening to stories of the horrors of war and the effect upon those soldiers who were returning from Vietnam. His evidence was also unchallenged that he was aware that HMAS Sydney would have as short a turnaround time as possible whilst in Vung Tau Harbour and that the crew were made aware of the dangers from floating mines coming from the river mouth in Vung Tau Harbour, as well as the threat of mines by underwater divers, so as to require the precaution of scare charges and other precautions to protect the vessel from such risks. That awareness accorded with the evidence of Commodore Mulcare. The appellant told the Tribunal (and was not challenged in cross-examination) that after his second or third trip to Vietnam he put in for a discharge from the Navy because he was scared and did not want to return there any more. The application was referred to the Captain but was not further processed. Ultimately, he said he was simply too scared to go down into the boiler room and was eventually discharged. His medical records record his discharge as he was unsuitable for service. He was not cross-examined to suggest that that version of his evidence was incorrect. He said he started drinking heavily after his first visit to Vietnam. Again, he was not cross-examined to suggest that was incorrect.
41 The particular stressors were identified by the appellant in his statement to the Tribunal.
42 He described the submarine incident as an occasion in about February 1968 when HMAS Sydney was ordered to proceed full steam ahead, and he believed the ship was in danger as it was such a rare order. He was very fearful that they were about to be torpedoed at the time, as those in the boiler room heard through the telegraphic system that there was a possible submarine in the area. To Dr Parker, at his examination on 16 July 2001, the appellant referred to a rumour that a Russian submarine was in the area and about to attack the ship, and an order was made for a full steam ahead. The appellant said he had significant apprehension about the possible attack from a submarine with implications for his safety. The appellant's evidence to the Veterans Review Board on 11 September 2002, when he was asked about that experience, referred to learning of a definite 'ping', and then suddenly the order for full steam ahead. He could not then remember how long the vessel was at full steam ahead, although he thought it would be 'a fair way' and for the balance of his watch. He gave consistent evidence to the Tribunal initially that it seemed like a 'fair while' but he did not know how long the vessel was on full steam ahead. In cross-examination he said that it would not have been several hours, but probably about 20 minutes to half an hour at the most. It may have been that time but he could not be sure. He later made an estimate of about half an hour. He thought he heard of the 'ping' as a message from the telegraph operators explaining why they went to full steam ahead.
43 The appellant presented six witness statements to the Tribunal as part of his evidence. Those six witnesses were made available for cross-examination but the respondent did not wish to cross-examine them. In various ways, certain of those statements confirm that, on one occasion when the HMAS Sydney was on the way to Vung Tau, its speed increased quickly (Berryman, par 10); that the order for full steam ahead was extremely rare and only given in the event of an emergency (Pegg, par 5); and that there was an occasion when there was an alert because of a possible submarine in the area (Kemp, par 7).
44 The evidence of the respondent could not enable a finding to be made beyond reasonable doubt that the HMAS Sydney did not go into full steam ahead for a period on its way to Vung Tau at the time the appellant asserted. The investigations of Commodore Mulcare indicated that, despite the fact that its log at no time indicated that it did so, and despite his principal informant, Commodore Thompson who was serving on HMAS Sydney, not reporting such an experience, further follow-up from the log of its escort vessel, HMAS Stuart (stationed ahead of Sydney) revealed two possible submarine contacts on 2 February 1968. That information was then taken up with Commodore Thompson, who acknowledged that there was an occasion when an inexperienced officer ordered a course change and presumably full ahead following a possible submarine contact, but that Commodore Thompson immediately ordered the ship to resume its previous course and speed. Commodore Thompson observed:
'The engine room would probably have been given an explanation for a "full ahead".'
But for Commodore Mulcare following that up, there would have been no confirmation of it, but the subsequent information from Commodore Thompson confirmed the possibility that that occurred. The log of HMAS Stuart identified the period between possible submarine contact and the classification as non-submarine contact as five or six minutes.
45 There is therefore no evidence upon which the Tribunal could be satisfied beyond reasonable doubt that, on a trip to Vung Tau on about the occasion the appellant reported, the boiler room of HMAS Sydney was not ordered to go to full ahead for a period of time, and may have been informed that it was due to a possible submarine contact. The only real conflict on the evidence is as to whether the vessel was 'full ahead' for a period of a few minutes, or as the appellant eventually said in the course of cross-examination up to about half an hour.
46 It is only by reason of the insertion into the hypothesis of a period of 20 minutes to half an hour that the Tribunal then rejected the appellant's claim. It was the extended period of 'full ahead' of at least 20 minutes which the Tribunal was satisfied did not happen.
47 I do not consider the Tribunal was correct to inject that time element into the hypothesis about the submarine incident. The appellant did not do so in his written statement to the Tribunal, or in his reported history to Dr Parker (I mention the latter because the Tribunal appears to have used that history to decide what the hypothesis was). The time element emerged only when the appellant was cross-examined about the detail of his experience, and his evidence on the time element was not asserted to be definite. Nevertheless, as the Tribunal's reasons show, it adopted that time element as a critical feature of the hypothesis based upon the submarine incident, and it accepted the hypothesis as reasonable only if the 'full ahead' was in accordance with the appellant's time assessment after he was pressed to provide one.
48 In my judgment, the hypothesis was that the appellant experienced a severe stressor when the HMAS Sydney went 'full ahead' because of what the appellant reasonably perceived to be a submarine threat on the way to Vietnam in about 2 February 1966. The Tribunal was required to determine whether that hypothesis was reasonable. I do not consider it did so. It failed to do so because it incorporated into the hypothesis certain detail of the appellant's evidence about the submarine incident to determine its reasonableness.
49 In Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192 (Hill) the Full Court (Black CJ, Drummond and Kenny JJ) addressed at 593-600, [43]-[67] what ss 120(3) and 120A(3) require of the Tribunal. Their Honours referred to the legislative history of those provisions, and certain decisions concerning them, including Bushell v Repatriation Commission (1992) 175 CLR 408 (Bushell). In Bushell, Mason CJ, Deane and McHugh JJ at 413-416 pointed out that s 120(3) is concerned with whether 'the material' raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. There must be some material which raises the relevant causal hypothesis, and so calls for a determination under s 120(1). In Byrnes v Repatriation Commission (1993) 177 CLR 564, Mason CJ, Gaudron and McHugh JJ put the position at 571 in the following way:
'(1) First, subs (3) of s 120 is applied: do all or some of the facts raised by the material before the commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.
(2) If a reasonable hypothesis is established, subs (1) of s 120 is applied. The claim will succeed unless:
(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt,
thus disproving, beyond reasonable doubt, the hypothesis.'
The enactment of s 120A and associated provisions then introduced the means of determining the unreasonableness of a hypothesis, the then SoP prescribing a medical-scientific standard. It is the template of the relevant SoP against which material before the Tribunal is measured to determine if the hypothesis is reasonable. If the material fits the template, the hypothesis is reasonable. If it does not, the hypothesis is not reasonable.
50 As the respondent accepted that the appellant suffers from AA and from PTSD, the issue for the Tribunal to address (before turning to s 120(1) of the Act) was whether all or some of the material gave rise to a hypothesis which fitted either or both of the SoPs. Relevantly in this matter, as in Hill, the question was whether the material raised some fact or facts which pointed to the appellant 'experiencing a severe stressor'. To paraphrase the Full Court's formulation in Hill, the Tribunal had to be satisfied that the material pointed to the appellant having 'experienced, witnessed or been confronted with' an event or events that involved threat of death or serious injury and (in the case of the AA SoP) that the event or events might evoke 'intense fear, helplessness or horror'. The hypothesis will only be reasonable if it includes all the essential elements prescribed by an SoP, because the SoPs prescribe the essential content of what is a reasonable hypothesis capable of connecting the appellant's AA and PTSD with the circumstances of his particular service.
51 The Tribunal accepted that being in fear for half an hour if being torpedoed could be a severe stressor. It is not obvious to me why such a fear for a shorter period of time might not also qualify as experiencing a severe stressor. The important point is, however, that there was material which pointed to the appellant having experienced and been confronted with a threatened torpedo attack whilst in the boiler room of HMAS Sydney. Such an event, to my mind, clearly involved the threat of death or serious injury, and might evoke intense fear or helplessness. However, whether the material pointed to the conditions of the two SoPs being satisfied is a matter for the Tribunal. It did not ask itself that question, but the more refined one as to whether the fear of being torpedoed, which was prolonged over a period of half an hour, could be a severe stressor. It is at the point of addressing the step prescribed by s 120(1) that the details of the appellant's evidence might lead to the Tribunal considering whether, notwithstanding there being a reasonable hypothesis raised on the material, it is satisfied beyond reasonable doubt that one or more of the facts necessary to support the hypothesis is disproved beyond reasonable doubt, or that another fact inconsistent with the hypothesis is proved beyond reasonable doubt, so that the hypothesis itself is disproved beyond reasonable doubt.
52 In addition, I consider the way the Tribunal has approached its task has led it to misdirect itself as a matter of law. It accepted the hypothesis about the submarine incident (and the other two hypotheses) only if the events occurred in the manner described by the appellant, relevantly that the 'full ahead' was at least for 20 minutes. It did not then say it was required to be satisfied beyond reasonable doubt that the 'full ahead' was not for at least 20 minutes. When it made its finding of fact, it said it was not satisfied that the 'full ahead' was for 20 minutes, but again did not express that finding as being beyond reasonable doubt. For the same reasons as I conclude below, in respect of the direct threat incident and the scare charges issue, I conclude that the Tribunal did not in fact make that finding beyond reasonable doubt. I refer to those other matters because, in those instances, I think the Tribunal's approach to its fact finding is more apparent. I have assumed in respect of the submarine incident that its fact finding approach was consistent with its approach in respect of the other two hypotheses.
53 As I noted above, given the unchallenged contextual evidence of the appellant referred to in [40] and confirmed also by unchallenged evidence in [43] above, it is not obvious why experiencing a 'full ahead' in the reasonable belief of a submarine threat, and so a threat of serious injury or death to the appellant and others, and because it might evoke intense fear or helplessness, would not amount to 'experiencing a severe stressor'.
54 However, that is a matter for the Tribunal. I have found it did not ask that question, but a more refined or detailed one.
55 The scare charges issue was described by the appellant in his statement as being experienced while the vessel was moored in Vung Tau Harbour. There is no doubt scare charges were made with underwater explosions in the circumstances he described. He said they would, on occasions, cause the hull to vibrate, including to the boiler room in which he worked. He said the first experience of one of the scare charges was terrifying. That first experience was subsequently explained to the appellant. He recalled one occasion when a scare charge went off that was so loud and terrifying that he thought the vessel had been hit and it caused him nearly to fall off a platform on which he was working in the boiler room. He thought then he was going to drown and just wanted to get out of the boiler room, but was unable to do so.
56 The Tribunal rejected that evidence as 'grossly exaggerated' by reference to its understanding of the amount of activity on the HMAS Sydney whilst it was unloading and by the physical location of the boiler room in the vessel. It did not accept that on a regular basis scare charges caused the hull of the aircraft carrier to shudder or shake.
57 The unchallenged evidence of the other six witnesses confirms the evidence of the appellant about the general effect of scare charges. Berryman (pars 8 - 9) described the effect of the scare charges as being very loud, and stated that they caused a shock to anyone in the ship, particularly below the surface. He described the explosion as 'terrifying', producing an instantaneous panic that the ship had been hit. That was in the context of a fear amongst all the ship's crew of being hit by a floating mine or otherwise some detonation being affixed to the vessel by divers. That evidence was confirmed by Smith (pars 2 - 6). He described the noise as frightening if heard unexpectedly. Pegg (pars 3 - 4) described the constant apprehension of those in the boiler room of being unable to escape if the boat was hit by a mine. He described the scare charges as on occasions 'extremely frightening', and in particular in the boiler room the noise would be 'frighteningly loud' so one could not possibly know whether the vessel had been hit or whether it was just a scare charge. He says the fear factor was exacerbated in the boiler room because of the conditions and the limited opportunity to escape. That evidence was confirmed by McKenzie (par 5), and Kemp (par 6), and in particular by Cunnington (pars 4 - 6).
58 The Tribunal was satisfied that the scare charges were not sufficiently traumatic to cause the appellant's illnesses, as it found he had grossly exaggerated their intensity and their effect. Its reasons were not based upon his demeanour, or inconsistencies in his evidence. They were based upon its findings by inference from the sound caused by the loading and unloading activity, and the location of the boiler room. It did not advert to the direct and unchallenged evidence of the six witnesses referred to, all of which to varying degrees supported the appellant's claims. The representative of the respondent before the Tribunal did not wish to cross-examine those witnesses.
59 In a court, the rule in Browne v Dunn (1893) 6 R 67 (HL) would apply. The respondent sought from the Tribunal findings of fact inconsistent, in material respects, with that unchallenged evidence. In a court each of those witnesses, in fairness, would have been given the opportunity to respond to the assertions the respondent proposed to make (based upon Commodore Mulcare's inquiries) that the location of the boiler room, and the other sources of noise on the vessel, rendered the noise of scare charges of relevantly insignificant intensity. Moreover, the adjudicating court would have been given the benefit of having seen and heard those witnesses and their responses to, or explanations of, the views of Commodore Mulcare before being called upon to determine whether the facts truly lay. See e.g. in Reid v Kerr (1974) 9 SASR 367 at 373 - 374 per Wells J; Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 22-23 per Hunt J.
60 The Tribunal in the general exercise of its powers by s 33(1)(c) of the AAT Act, and by s 119(1)(f) of the Act, is not bound by the rules of evidence. Despite that, the application of the rule in Browne v Dunn is an aspect of procedural fairness so that, subject to taking account of the particular statutory context and functions, its contravention may invalidate a decision of the Tribunal: see per Sackville J in Haberfield v Department of Veterans Affairs as Delegate for Comcare (2002) 121 FCR 233; [2002] FCA 1579 at 245-246, [58]-[59] and the cases cited therein.
61 The appellant was not cross-examined to challenge his evidence that he heard loud scare charges. The thesis of cross-examination on the scare charges issue was that he was familiar with their sound because of their frequency. Indeed, one question was introduced by the words 'I can understand that they would startle you'. The Tribunal member, based on evidence in other cases, suggested that scare charges were thrown only 70 - 80 metres from the ship and were not 'all that loud', but the appellant disputed that fact. There was some evidence of some scare charges being dropped very close to the ship. Commodore Mulcare, in response to a question on that basis, said that he did not know its effect as he had not been in the engine room in such circumstances but 'I would think it would be unlikely to cause too much shuddering'. Later in his evidence, Commodore Mulcare said:
'I think any scare charge explosion would probably startle you unless you were alerted they were going to happen, but they were a fact of life …'
62 Of course, the Tribunal is not bound to accept evidence that has not been challenged in cross-examination, although it will generally do so where there is no contradictory evidence. Whether the rules of procedural fairness have been contravened depends on the circumstances of each particular case. The appellant's complaint in this context is not of a lack of procedural fairness. It is that the Tribunal's approach, in the light of the evidence, indicates a failure on its part to properly apply the law.
63 The Tribunal identified the hypothesis, and concluded it was reasonable provided the events occurred as the appellant claimed. That expression, as noted earlier, may erroneously indicate that the Tribunal required to be positively satisfied those events occurred. To impose such a qualification upon the conclusion as to the reasonableness of a hypothesis is not warranted by the Act. To require positive satisfaction of the facts upon which a hypothesis is based is also not warranted by the Act. However, the Tribunal's reasons are to be read without an eye attuned to the perception of error. They are to be read and understood in their entirety, without undue focus upon particular apparently erroneous expressions. It is therefore necessary to look to the whole of the Tribunal's reasons, read sensibly and as the reasons of an administrative decision maker. See generally Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1990) 185 CLR 259; Repatriation Commission v Nugent [2003] FCA 1184 per Cooper J at [31].
64 It is apparent that the Tribunal did not in fact require positive satisfaction of the facts upon which the hypothesis was found to be reasonable. Its conclusions set out in [21] above indicate that. However, on the other hand, I think its process of reasoning and its conclusions (other than the final conclusion) indicate that it did not apply the test prescribed by s 120(3), namely whether it was satisfied beyond reasonable doubt that there is no sufficient ground for making the determination concerning the scare charges issue. The conclusion on the facts on that issue is not expressed in the terms of satisfaction beyond reasonable doubt. Its reasoning is based only upon inference drawn from the evidence about the location of the boiler room, and about the other activity on the vessel. It does not directly criticise the appellant's evidence for any other reason, but those inferences lead it to conclude he grossly exaggerated the effect of the scare charges. Had it been expressing its satisfaction beyond reasonable doubt it could readily have done so. Moreover, had it been expressing its satisfaction beyond reasonable doubt, it would almost inevitably have had to address the corroborative evidence of the six witnesses whose statements were unchallenged, the context of the appellant's sensitivity as explained to the Tribunal and described in [40] above, the evidence that scare charges were dropped at varying distances from the vessel and on occasions right next to it, and the evidence of Commodore Mulcare which did not positively assert that certain depth charges could not have made a significant noise in the boiler room of the vessel. My strong overall impression of the Tribunal's reasons is that it was satisfied only on the balance of probabilities, and not beyond reasonable doubt, that the hypothesis on the depth charges issue did not exist.
65 Counsel for the respondent referred to several cases which, it was contended, illustrate circumstances somewhat similar to the present and which therefore provide some guidance to determining whether the Tribunal fell into legal error as the appellant contends.
66 Repatriation Commission v Turner [2004] FCA 1184 did not concern a claim for injury based upon operational service, but the Tribunal erroneously referred to the Deledio principles. However, upon a fair reading of the entirety of its reasons, Spender J was of the view that the reference to Deledio did not lead to the Tribunal failing to apply the correct standard of proof there applicable: see at [40]. My conclusion as to the Tribunal's error in the process of reasoning in this matter is reached upon a fair reading of the whole of its reasons. Dunlop v Repatriation Commission [2002] FCA 1400, and on appeal Dunlop v Repatriation Commission [2003] FCAFC 201, concerned a claim for death in 1972 caused by operational service in Dutch New Guinea in 1944. The claim failed because the material before the Tribunal did not raise or suggest a link between the veteran's war service and the illness which lead to his death. That is, the claim failed on the application of the first of the four steps described in Deledio. On appeal, the principal contention for the appellant was that the Tribunal had prematurely proceeded to evaluate the material supporting the hypothesis put forward, rather than reserving that function to the fourth step described in Deledio. The Full Court rejected that contention: see at [35]. Dunlop was a decision on its particular facts. It does not establish any principle which directs that in this matter the application should fail. In this matter, the Tribunal has found in favour of the appellant on the first of the Deledio steps (albeit, as I have found, that it has imported into one of the hypotheses a detailed factual claim which was not part of the hypothesis). In Dunlop the Tribunal asserted no contemporaneity between the postulated stressor and the onset of symptoms. The appellant's postulated facts in this matter did not lack that contemporaneity. Repatriation Commission v Crane [2004] FCAFC 86 was also a decision on its particular facts. The Full Court (Spender, Nicholson and North JJ) at [51] emphasised that the Deledio steps for decision making were not meant to be, and could not be, a substitution for the requirements of the Act. The appellant's contentions in this matter have appropriately focussed on the requirements of the Act, and I have found that, in the manner described in these reasons, the Tribunal failed to comply with those requirements.
67 White v Repatriation Commission [2004] FCA 633 is factually closer to the present appeal. It concerned claims for generalised anxiety disorder arising from experiences in Vietnam in about June 1968 whilst that claimant was serving in the Royal Australian Navy. The hypothesis connecting the claimant's operational service with those illnesses was based on an incident involving a landing craft, and upon an exposure to scare charges. The Tribunal found that the hypothesis linking the claimant's operational service with generalised anxiety disorder was not reasonable because the two incidents did not meet the definition of 'severe psychosocial stressor', as contained in the then applicable SoP. That finding of fact was upheld on appeal, as it involved no error of law. The Tribunal's decision was made upon the terms of a different SoP, and upon a step explained in the Deledio principles which is different from that upon which the Tribunal's decision in this matter was based. I do not consider for those reasons that the decision dictates the outcome of the present appeal.
68 The third of the hypotheses, the direct threat incident, was explained by the appellant in his statement as occurring whilst docked in Vung Tau Harbour in February 1968 when he could see the TET offensive taking place, with loud explosions, and tracers of gun and missile fire. He perceived that the HMAS Sydney was of strategic significance, and that it was therefore a legitimate target for the enemy. He thought from discussions with others that they were within the range of Viet Cong mortars and rockets, less than some two kilometres from the shore, and that everybody on board was concerned because they were within striking distance of the Viet Cong. His concerns were highlighted by the instruction on every occasion to unload and load and leave Vung Tau Harbour as fast as possible.
69 When examined first by Dr Parker, the appellant gave a similar description, but added that he had a significant anxiety on the ship because there were a number of helicopters circling which may have contained Viet Cong, and which he thought had the potential for the battle to be taken to the deck of the Sydney. He also said that by reason of having heard about damage to the HMAS Hobart (an incident which clearly occurred after February 1968) his sensitivity was increased. He described generally his feelings of apprehension about his own safety during his time in the war zone.
70 In his evidence to the Veterans' Review Board, the appellant said he thought the HMAS Sydney was about 1000 to 1200 yards from the site of the fighting on the shore, that they could see fires going, and planes and helicopters flying and napalm being dropped. He could hear the sound of shells. He thought the enemy mortars could have been able to reach them. He was very scared.
71 The general picture he created is confirmed by Berryman (pars 5-8) that HMAS Sydney was as close as 1100 yards from the shore, and that those on HMAS Sydney could see and hear explosions and believed they were in range of Viet Cong missiles and mortars. The common understanding among the ship's company was that they were exposed to enemy fire and that the situation was perilous. They were instructed to unload and get out as quickly as possible on each occasion (Berryman, par 7). Cunnington (pars 3-7) described being quite terrified whilst moored in Vung Tau Harbour.
72 In his evidence to the Veterans' Review Board, the appellant described in the beginning of 1968 watching the shooting going all over the land, and then his watch coming so he had to go down into the boiler room. He thought they were about 1100 to 1200 yards away from the shore at the time. He described the turnaround time in such visits as getting shorter and shorter. He saw the fires going and could see the planes and helicopters and napalm getting dropped. He saw shells landing on the land, but did not see shells coming close to the vessel.
73 In his evidence to the Tribunal, the appellant said he could see the shore line, helicopters and jets, and 'the whole sky just lighting up and you could see shells and hear them'. He assumed it was napalm being dropped because of the fires. He was unsure how far away it was, because it was behind a hill from where the ship was anchored about a half a mile off shore. He recalls being aware that they were to load as quickly as possible. The story about the captain was one which he heard. He said he saw the captain with something under his arm whilst he was off watch, and was told by someone with him of the conversation to which he referred.
74 Commodore Mulcare researched those allegations. He confirmed that on 3 February 1968 HMAS Sydney anchored off Vung Tau to disembark troops and equipment and to embark empty sea containers and unserviceable vehicles. The ship weighed anchor after five hours, and shifted to a 'less hostile position' to complete the securing for sea. It remained there for a further two hours before weighing anchor for Singapore. The Chief of Naval Staff and the Commander of Australian Forces Vietnam were on board. Those two senior officers had lunch at the less hostile mooring whilst the vessel was being prepared to be secured for sea. There was obviously a desire to complete the unloading as soon as possible. The Report of Proceedings of the visit of HMAS Sydney and HMAS Stuart to Vung Tau on 3 February 1968 confirms that the unloading by helicopter commenced even before HMAS Sydney had anchored, and that 'Awkward condition two was assumed on arrival and before departure a bottom search was carried out by the divers'. The position adopted for the two hour break was 'just clear' off the harbour entrance. Rear Admiral Loosli of the HMAS Stuart informed Commodore Mulcare that on that visit:
' … the ship closed up at Action Stations and was prepared for any enemy action on or below the surface or from the air. At 0650 the ship anchored a little over half a mile from the nearest land and about 600 yards from Sydney,
…
the main armament and associated fire control was manned against surface or air attack
…
Sydney departed Vung Tau Harbour at 1200 to anchor for a short time outside the harbour in a less vulnerable situation,
…
The unloading of SYDNEY … was treated as a matter of urgency as the ships were considered to be in a very vulnerable position at anchor in Vung Tau. However during this period there had been no sign of any immediate threat to SYDNEY or STUART from sea, land or air …
…
The noise of explosions ashore could be heard from time to time but they did not lead to any assessment that the ships were threatened in any way. There was certainly no "seemingly endless bomb, rocket, canon and napalm strikes taking place" in close proximity to SYDNEY's anchorage.'
The quotation at the end of that statement refers to a quotation from the book 'The Vung Tau Ferry' which a statement from Commodore Thomson also rebutted. Commodore Thomson's statement presents a picture of a significantly more placid environment for the HMAS Sydney's visit to Vung Tau on that occasion than that of Commodore Loosli or the Report of Proceedings referred to.
75 The picture which Commodore Mulcare described to the Tribunal was as follows:
'… precautions were always taken to ensure, as best one could operationally, all precautions were taken to keep Sydney as safe as possible. Unloading was done quickly so she didn't remain there too long. The escort vessel was there with personnel closed up and her major gun armourment [sic] closed up. All to protect Sydney. Nobody is ever suggesting there wasn't any danger. Everybody agrees there was danger, but actions were taken to minimise the danger and the fact is that they appear to have been successful which is very good.'
76 The essence of the appellant's hypothesis was that, on the visit of HMAS Sydney to Vung Tau on 3 February 1968, he felt particularly afraid for his safety and for that of the other crew on the vessel by reason of apprehended attack. His evidence was that his perception of the imminence of that risk was highlighted by seeing battle activities onshore and not far away, together with what he had learned of the damage to HMAS Hobart and of the Captain's (alleged) behaviour.
77 The Tribunal accepted the hypothesis as reasonable provided the events occurred as the appellant described. At that point, it remarked that being only 1100 yards from a full scale battle could amount to experiencing a severe stressor.
78 The appellant, as the Tribunal found, was mistaken about the incident involving HMAS Hobart. It did not occur until mid 1968. The Tribunal concluded that it was satisfied the appellant did not observe a major battle within close proximity to the HMAS Sydney. It said that the appellant's claim was adopted from the book 'The Vung Tau Ferry', and that the captain would not have invited two guests for lunch in the face of a raging battle only 1100 yards away. It made no findings about the Captain's alleged behaviour.
79 In my judgment, the Tribunal's approach again reveals the adoption of detailed (and at least partly erroneous) evidence as part of the hypothesis when the hypothesis was a much less detailed one. The appellant's claim was that on all visits to Vung Tau he felt frightened. His evidence about that was unchallenged. Given the evidence of Commodore Mulcare, his fear was entirely rational. He then described the visit of 3 February 1968 as being an occasion of especial fear. The issue for the Tribunal was whether that visit, on a hypothetical basis, amounted to him experiencing a severe stressor. The Tribunal did not address that question, but a more refined one, namely whether that visit by reason of the detailed evidence he gave about it which the Tribunal built into the hypothesis, on a hypothetical basis, amounted to the appellant experiencing a severe stressor. Having answered its question in the affirmative, the Tribunal then was satisfied that at least one particular feature of the more detailed hypothesis - the appellant observing a major battle within close proximity - did not occur.
80 It is again a matter for the Tribunal as to whether the material before it raised facts which, in conformity with the two SoPs, gave rise to a reasonable hypothesis connecting the appellant's AA and PTSD with his war service, in particular on the visit of HMAS Sydney to Vung Tau on 3 February 1968. The hypothesis was that the circumstances of that visit involved significant vulnerability of HMAS Sydney to attack, and so involved the threat of death or serious injury and evoked in him intense fear. I consider the Tribunal's approach again involves an error of law because it did not determine that question. It determined the question whether the appellant experienced a severe stressor by being only about 1100 yards from a full scale battle. It has focussed on the detail of the appellant's evidence, and not upon whether the material points to some fact or facts which support a hypothesis which fitted the templates in the two SoPs, that is, whether the material points to some fact or facts which the two SoPs prescribe as a minimum to exist for a hypothesis to be reasonable. If it does so, the hypothesis then could not be said to be contrary to proved or know scientific facts, nor otherwise fanciful.
81 The Tribunal identified the hypothesis as requiring the HMAS Sydney being only about 1100 yards from a full scale battle. The finding that the appellant did not observe a major battle within close proximity to HMAS Sydney is not expressed to be beyond reasonable doubt. The Tribunal has not referred to the unchallenged and confirmatory evidence of Berryman or Cunnington about the fear of those (or some of those) on board. It has not referred in any detail to the statement of Rear Admiral Loosli, or to Commodore Mulcare's assessment that there was danger to HMAS Sydney, and that actions were taken to minimise it. It has not referred to the unchallenged context to the appellant's service at that time, as discussed in [40] above. That may be a consequence of its erroneous identification of the hypothesis. If, upon review, the Tribunal determines that a reasonable hypothesis is raised that the appellant experienced a severe stressor on that visit of HMAS Sydney to Vung Tau, those matters (together with the appellant's evidence) may need to be addressed to determine whether one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or whether another fact which is inconsistent with the hypothesis is proved beyond reasonable doubt, so that the hypothesis is disproved beyond reasonable doubt.