Forrester v Repatriation Commission

Federal Court of Australia|2013-09-06|Before: Mortimer J

THE APPLICANT'S ARGUMENTS 39 The applicant sought and was granted leave to rely on an amended Notice of Appeal at the hearing of the appeal. The amended Notice raised four questions of law and three grounds, each seeking to impugn the Tribunal's rejection of the hypothesis at the first Deledio stage. However, as the submissions were developed in oral argument by counsel for the applicant, Ms Ryan, there were ultimately three points made. It was submitted: a. In the circumstances, there was only one conclusion available to the Tribunal at the first Deledio step: namely that the whole of the material did point to, or support, the hypothesis relied upon. The applicant submitted it was "not open" to the Tribunal to find otherwise. The applicant submitted this argument involved questions of law 3 and 4 and ground 1 of the amended Notice of Appeal. b. It was also not open to the Tribunal to find, as it did at [69] of the reasons, that the linking of the hypertension with the particular events in Vietnam was "too remote and too tenuous". This argument was said to involve question of law 2 and ground 3 of the amended Notice of Appeal. c. The Tribunal's finding at [72] of its reasons was inconsistent with its conclusion that the material did not point to or support the hypothesis relied on by Mrs Forrester. This argument was said to involve question of law 1 and ground 1 of the amended Notice of Appeal. 40 Ms Dowsett, who appeared for the respondent, contended that the conclusions reached by the Tribunal were open to it on the material, and were questions of fact. As to the third argument, the respondent submitted this involved a misunderstanding of the purpose and effect of [72] of the Tribunal's reasons.

The Second Argument: Whether It was Open to the Tribunal to Find the Link between the Events and Operational Service was "Too Remote and Too Tenuous" 51 This argument relied heavily on the Full Court's decision in Bull v Repatriation Commission (2001) 66 ALD 271; [2001] FCA 1832. It was submitted that, by using the phrase "too remote and too tenuous", the Tribunal misdirected itself because that characterisation, according to Bull, was reserved for hypotheses that were fanciful or irrational. The hypothesis at [61] of the Tribunal's reasons, it was submitted, could not be characterised in that way. 52 The applicant placed some emphasis on the similarity between the applicant's case and the factual circumstances in Bull. She relied in particular on the Full Court's reasons in Bull 66 ALD 271; [2001] FCA 1832 at [40] where, having set out what the material disclosed about the veteran's drinking habits in that case, Emmett and Allsop JJ stated: the above is enough to disclose that on the material available it could hardly be denied that an hypothesis of the kind referred to … above was by no means fanciful or impossible or incredible or untenable. He drank lightly before the war, experienced stress in the war, spoke in guarded and repressed terms of the war and drank more heavily after the war. It could hardly rationally be said that an hypothesis that the increased drinking habits were brought about by his associations in the war or were to cope with his experiences in the war was fanciful or tenuous, etc. People who experience stress sometimes cope by consumption of alcohol. 53 In effect, the applicant submitted that, given the factual similarities with Mrs Forrester's claim about her husband's drinking, this passage established that the hypothesis put forward on behalf of Mrs Forrester was not capable of being characterised as "too remote" or "tenuous". 54 The respondent pointed out that the paragraphs of the Court's reasons in Bull that followed (66 ALD 271; [2001] FCA 1832 at [41]-[46]), read with what the Court earlier set out of the Tribunal's reasons in that case (at [27]), reveals that the Full Court accepted these were very much factual questions for the Tribunal and that they did not give rise to a question of law. 55 That submission could have force but, once again, the brevity of the Tribunal's reasons in Mrs Forrester's case undermines the strength of the respondent's argument. Unlike the Tribunal's reasons in Bull, the Tribunal in Mrs Forrester's claim did not articulate other explanations for an increase in the veteran's drinking. If it had done so, that would have been the end of this ground. The absence of explanation requires further inquiry into why the Tribunal characterised the link as too remote and too tenuous. 56 If it is apparent from a tribunal's reasons that in applying a provision or aspect of a statutory scheme (here, s 120(3) as construed in Deledio) the tribunal has misunderstood the question posed by the provision, then this error is jurisdictional: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at 574. Whatever the differences might be between the constitutional review jurisdiction and a statutory jurisdiction to appeal on questions of law (as to which see McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [58]), an error of this nature will invalidate a decision in either setting. Although not as precisely expressed as it may be, I accept that this is the intent of question of law 2 in the amended Notice of Appeal, as developed in argument on behalf of the applicant. The applicant submitted the Tribunal misunderstood the operation of s 120(3) because it rejected a hypothesis that was rational, using the phrase "too remote and too tenuous" in a way not justified by s 120(3), properly construed. 57 Despite the absence of a detailed explanation for the finding at [69], I find that, when read in the context of the whole of its reasons, paragraph [69] does not disclose a misunderstanding of s 120(3). An examination of the evidence and material relied on by the Tribunal and set out at [4] to [43] of its reasons reveals contradictory material about Mr Forrester's drinking habits, about what caused him stress before, during and after the war. The evidence and material there referred to also reveals Mr Forrester's history of anxiety, problems with his weight, and his anger about some of the positions and tasks he was assigned while he was in the army. 58 For example, the Tribunal records: a. At [38], that a consultant psychiatrist Mr Forrester saw in 1996 reported that alcohol did not present as a clinical problem; b. At [36], that in October 1973 an army medical history sheet reports Mr Forrester as consuming 12 cans of beer per week; c. At [10], Mrs Forrester's evidence was that on his return from Vietnam she regarded her husband as a heavy drinker when that had not been the case before he went to Vietnam. Her evidence was that Mr Forrester was drinking six cans (375ml) during the week and another six over the weekend; d. At [41], Mr Forrester's own evidence to the Board was that soon after his discharge he was drinking heavily, then abstained for 12 months, then returned to social drinking; e. At [9], Mrs Forrester's evidence that prior to Vietnam Mr Forrester suffered a lot of anxiety; f. At [18], Mr Forrester's son-in-law Mr Swan's evidence that Mr Forrester had told him he was greatly distressed by having to pack away the personal effects of dead soldiers and having to write to their families; g. At [34], that his job performance records from the army showed variable levels of performance, some levels of anxiety and dissatisfaction, and at [35] that his medical reports in 1967 concluded Mr Forrester showed a very low tolerance for stress; and h. At [40], that a consultant psychiatrist who examined Mr Forrester concluded in 1997 that Mr Forrester had a long history of anxiety disorder. 59 This list is not exhaustive. What it reveals is the Tribunal's identification of some evidence that might satisfy s 120(3) as explained in Deledio, and some that might not, as well as evidence that could positively suggest the material did not support the asserted hypothesis. 60 The terms "too tenuous" or "remote" are orthodox terms to use in this context: see East 16 FCR 517 at 532; Bushell 175 CLR 408 at 414; Byrnes 177 CLR 564 at 570. In my opinion, these terms are not synonymous with irrationality, but rather suggest a different problem with a causal link between war service and the veteran's death. The notion of "remoteness" is a key concept in causation analysis: see Cattanach v Melchior (2003) 215 CLR 1 at [179] per Kirby J. 61 Further, even if those descriptions could not be applied to the hypothesis put forward by Mrs Forrester, as the Full Court pointed out in Bull 66 ALD 271; [2001] FCA 1832 at [18], it does not necessarily follow that the asserted hypothesis is a reasonable one: It is important to understand the following about East. The court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis … 62 There is nothing in the Full Court's decision in Bull that assists the applicant's argument. The Full Court (at [22], citing Bey 79 FCR 364 at 373 and Repatriation Commission v Owens (1996) 70 ALJR 904) made it clear a factual exercise was involved: The formation of the opinion called for by s 120(3) involves an assessment of the factual material before it. It involves reaching an opinion about a factual matter. It is, in that sense, a question of fact … 63 At [23] the Full Court in Bull also referred to a large number of authorities dealing with the proposition to which I have referred less fulsomely at [48] above. Again, minds may reasonably differ on whether a hypothesis is too remote or tenuous. 64 In Bull the Full Court concluded (66 ALD 271;[2001] FCA 1832 at [46]) that Gyles J had been correct to determine that the Tribunal was permitted to reach the view that the material before it did not point to a hypothesis connecting war service and service drinking, and so war service and death. Any error, the Full Court held, was an error of fact. This is despite what the Full Court had said at [40], the passage relied on by the applicant. 65 It is important to recall that the hypothesis in Mr Forrester's case sought to link, in whole or in part, five particular events in Vietnam with the change in Mr Forrester's drinking habits. That is why [40] of Bull, even if it could be taken as some kind of general endorsement for the purposes of s 120(3) of hypotheses of the kind with which it deals (and I do not consider it could be so taken), does not assist the resolution of the question of law in the present case. In the present case, what the Tribunal was saying at [69] was too remote or tenuous was, in its own words, the link between "the particular events of operational service" relied on by the applicant, and Mr Forrester's alcohol consumption and hypertension. That conclusion was open to it and no misunderstanding of s 120(3) is disclosed by that conclusion.

Third Argument: Whether [72] of the Tribunal's Reasons is Inconsistent with Its Conclusion on s 120(3) at [69]-[70] 66 At [72] of its reasons, the Tribunal stated: Had it been necessary we would have found that Statement of Principles No 9 of 2012 (aortic aneurysm) and Statement of Principles No 35 of 2003 as amended by 3/2004 and 11/2008 are in force and are relevant. We would have determined that the hypothesis put forward is consistent with the templates in these Statements. We would not have been satisfied beyond a reasonable doubt that Mr Forrester's death was not war-caused. 67 The applicant contended, and the respondent conceded, that the penultimate sentence at [72] was the Tribunal's reasoning at step 3 of the Deledio test: namely, that a decision-maker will find a hypothesis to be reasonable if it "fits, that is to say, is consistent with the 'template' to be found in the SoP": Deledio 83 FCR 82 at 97. 68 The applicant contended, and the respondent conceded, that the last sentence at [72] was the Tribunal's reasoning at step 4 of the Deledio test: namely, the fact-finding stage, where the decision-maker determines if it is satisfied beyond reasonable doubt that the death was not war-caused: Deledio 83 FCR 82 at 97-98; Byrnes 177 CLR 564 at 571. 69 The applicant submitted that a hypothesis cannot be found to be consistent with the template of a SoP if a tribunal has already found that the material before it does not "point to" or "support" the hypothesis. The finding at [72] (especially the last two sentences) was submitted to be so irreconcilable with what appears at [69] of the Tribunal's reasons (and, I understand, [64]), the Court can safely infer that in some way the Tribunal has misdirected itself so as to bring about a failure of jurisdiction. The applicant relied on House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ. 70 At first reading, an inconsistency does seem apparent. The Tribunal appears to be saying at [72] that it would have found first that the SoP upheld the hypothesis and second, that, insofar as the s 120(1) exercise was concerned, it would have been obliged to find Mr Forrester's death was war-caused. Yet on the least demanding test - whether the whole of the material pointed to or supported the hypothesis that Mr Forrester's death was connected to his increased consumption of alcohol and hypertension because of what he experienced during his service in Vietnam - it found adversely to Mr Forrester. 71 As the applicant submits, cl 4 of the Hypertension SoP (No 35 of 2003), read with the definition of "related to service" in s 196B(14)(b), relevantly required that the factor of consuming at least 300 g of alcohol per week for a continuous period of six months before the clinical onset of hypertension must arise out of or be connected to the veteran's operational service. The applicant then submitted: The hypothesis cannot be consistent with the template if the material before the Tribunal did not point to a connection between the veteran's death and his operational service. 72 To "fit" a SoP, the hypothesis must "fit" the causal aspect of the SoP and in that sense identify a relationship between the factor or factors relied on in the SoP and the veteran's war service. The hypothesis will then be reasonable (in a medical or scientific sense), because it is consistent with what the relevant medical experts have determined is a relationship between a disease, injury or death, and factors causative of that disease, injury or death and war service. 73 However this step in Deledio simply involves comparison between the hypothesis as articulated and the relevant SoP: after the introduction of s 120A, this aspect of determining reasonableness of the hypothesis largely centres on a matching exercise between the asserted hypothesis and the SoP, without a view being formed of particular facts. 74 In contrast, although it may not amount to fact finding, the first step in Deledio has a factual element particular to the material before the decision-maker about the veteran. It is, as I have pointed out at [32] above, a separate but integral aspect of determining the reasonableness of the asserted hypothesis. It involves a different comparison to the third step, and centres much more on the specific factual material relied on by the veteran. The different exercises involved mean, in my opinion, that a decision-maker could reach a conclusion adverse to a veteran on the first step, and - assuming against itself and moving to the following steps - a conclusion favourable to the veteran at the third step. That is because they are distinct aspects of reasonableness. 75 An asserted inconsistency between a Tribunal's conclusion on the first Deledio step and a conclusion on the fourth Deledio step may indeed be problematic. That is because both involve an assessment of factual material - the former to a lesser degree than the latter. This would focus more attention on the last sentence at [72] of the Tribunal's reasons, rather than on the penultimate one. However, the applicant did not focus on this sentence, although in answer to a question from me, the applicant did submit that the last sentence supported this argument. 76 Read in isolation, the last sentence in [72] suggests the Tribunal would have engaged in the fact-finding exercise required by the fourth step in Deledio (and by s 120(1)) to reach a factual conclusion favourable to Mr Forrester. Yet on the first step - also factual, but involving no fact finding and a much lower threshold - it found against Mr Forrester. 77 However the last sentence in [72] cannot, and should not, be read in isolation. It appears in the reasons after the Tribunal has spent most of its time evaluating the material for the purposes of the first step in Deledio. That was the Tribunal's focus and the subject matter of its decision to affirm the decision under review. As it said at [71], having reached that conclusion it was unnecessary for the Tribunal to consider the further issues. 78 The Tribunal then referred to a concession made by the Commission. After oral argument in this matter, and on my request, the parties filed a joint note concerning the substance of that concession before the Tribunal. In that note, the parties agreed on the following summary of the concession made on behalf of the respondent: The Respondent's then advocate, Mr Rudge, conceded that in this case should the Tribunal find that the evidence as a whole pointed to a reasonable hypothesis, then the Respondent would not submit that it was beyond all reasonable doubt that there was no sufficient ground for the Tribunal to make a determination that the claimed condition was a war-caused condition. 79 Having determined that Mrs Forrester's application failed because the material before the Tribunal did not point to or support the hypothesis advanced, in its reasons at [71] and [72] the Tribunal was acting out of an abundance of caution and indicating there would have been no other obstacles to the claim being accepted. The brevity with which this part of its reasons is expressed has given rise to the question over what it meant. 80 Read fairly and in context, this last sentence is no more than a recognition by the Tribunal of the effect of the reverse standard of proof in s 120(1), and the very high level of satisfaction required to reject a veteran's claim at that stage. The respondent submitted this is why the concession was forthcoming from the Commission: it acknowledged that at the s 120(1) stage (or, to put it another way, the fourth Deledio step), assuming all other criteria had been met, the standard of satisfaction required to find positively that Mr Forrester's death was not war-caused would not be met. However, in assessing this part of the Tribunal's reasons it is important to recall that the Tribunal is considering what it might have found, had its conclusion on the first Deledio step been different. Contrary to the applicant's characterisation, it is not actually engaging in fact finding in these paragraphs.

Conclusion 81 The Tribunal's failure to expose its reasoning on critical issues at anything but a minimalistic level has not assisted the resolution of this appeal. However I am satisfied that none of the questions of law in the appeal should be answered in favour of the applicant and the appeal should be dismissed. 82 The respondent has sought an order for costs if the appeal is dismissed. In my opinion, there should be no order as to the costs of the appeal. I have emphasised that the Tribunal's reasons barely expose how it reached the conclusions it did. It is understandable that Mrs Forrester and those advising her might consider the Tribunal's reasoning disclosed legal error because of the way the reasons were expressed, and because of their brevity. The Court's discretion on the question of costs is broad and ample. In my opinion, the Tribunal's failure to explain its reasons in detail so as to give an impression of error where there was none should not result in a costs consequence for the applicant: see Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 at 73-74 per Woodward J dissenting; Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 at 439 in respect of different, but in my opinion comparable, circumstances. I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.

Veterans' Entitlements Act 1986(Cth)ss 5C(1), 7, 8, 13, 120, 120A, 196B

Nature of the proceeding and summary of conclusions 1 Mrs Forrester is the widow of the late Mr Duncan Arthur Forrester, who was a member of the Australian Defence Force and served in Vietnam. On 21 October 2010, following her husband's death, she applied for a pension under the Veterans' Entitlements Act 1986 (Cth) (the Act). Her application was refused by the Commission on 20 December 2010 and she applied to the Administrative Appeals Tribunal for review of that decision. On 30 November 2012 the Tribunal affirmed the decision under review. 2 By an amended Notice of Appeal filed with leave at the hearing of this matter, Mrs Forrester now appeals to this Court, on four questions of law, pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). 3 Not all the questions in the amended Notice of Appeal raise questions of law in terms. However, a Notice of Appeal under s 44(1) should be read as a whole and in context to determine whether it fairly raises questions of law: Rana v Repatriation Commission (2011) 126 ALD 1; [2011] FCAFC 124 at [14] and the authorities there referred to. Taking the amended Notice as a whole, in conjunction with the submissions made on behalf of the applicant, the three matters raised on her behalf, and which I set out at [39] of these reasons below, raise sufficiently questions of law. The appeal was argued by both parties before me on the basis of those three matters, and no submission was made by the respondent that the Court's jurisdiction under s 44(1) had not been validly invoked. 4 I am not persuaded that any of the identified questions of law, nor the grounds specified in support of the orders the applicant seeks to have made, should be answered in favour of the applicant. 5 For the reasons I set out below, there will be orders dismissing the appeal.

The Deledio Steps 25 A Full Court of this Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98 set out the manner in which s 120(1), read together with the provisions that qualify it, is to be applied. The Court identified four steps: 1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3. If a SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved. 26 In Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 at [31], Allsop J pointed out that the second sentence in the second paragraph is not correct. Otherwise these four steps have been consistently endorsed and applied to the operation of ss 120 and 120A of the Act. 27 It is especially important to understand the difference between the first and fourth steps in Deledio, although the line between them is far from bright: see Collins 163 FCR 35 at [49] per Allsop J. 28 At the first Deledio step, the authorities are clear that the Tribunal is not to engage in "fact finding": Bull v Repatriation Commission (2001) 66 ALD 271 [2001] FCA 1832; Repatriation Commission v Deledio (1998) 83 FCR 82. The fourth Deledio step is the point at which there needs to be fact finding by the decision-maker, and will occur only once the Tribunal is satisfied a reasonable hypothesis has been raised. Recalling the beneficial nature of the process established by s 120, even that task remains a confined exercise. In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, Mason CJ, Gaudron and McHugh JJ described the fact-finding exercise in the following terms: 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. 29 Nevertheless, the first step in Deledio, requiring the formation by the Tribunal of a view or opinion about the material before it, and a characterisation of that material as "pointing to" or "supporting" the hypothesis advanced, involves some level of factual assessment. 30 Whether material "points to" or "supports" a hypothesis is, of its nature, a matter which can be determined by inference or assumption: Elliott v Repatriation Commission (2002) 73 ALD 377; [2002] FCA 26 at [5]. In Stares (a pre-Deledio case), the Full Court held that assuming a fact - in that case, that the veteran started his heavy drinking during war service - was permissible at what is now identified as the first stage of the Deledio approach. Referring to the judgment of Mason CJ, Gaudron and McHugh JJ in Byrnes 177 CLR 564 at 569, the Full Court stated (66 FCR 594 at 601): By there saying that "the material must point to some fact or facts" their Honours were not erecting a requirement that each element in the hypothesis must be supported by evidence tending to establish it. Such a requirement would convert the hypothesis to a prima facie conclusion. 31 Importantly for the resolution of the issues in this case, the use of the verb "raise" in s 120(3), and the subsequent approach of asking whether material "points to" or "supports" a hypothesis, has been held to require more than that the material before the decision-maker leaves the propounded hypothesis open as a possibility. A possibility of connection between war service and death, injury or disease is not enough: Repatriation Commission v Bey (1997) 79 FCR 364 at 372, 375. 32 The reasonableness of a hypothesis in the context of a determination under s 120(3) therefore has two aspects: a medical or scientific aspect, and what I shall describe as a factual aspect. One looks to the factual circumstances relating to the particular veteran and the other looks to the medical or scientific basis for what is factually asserted. Since the introduction of s 120A in 1994, consideration of these aspects has become somewhat separated. However it is important to recall that they both form part of the assessment of whether a hypothesis is reasonable. A hypothesis will be reasonable if there are facts that point to or support it, but it also needs to be reasonable because a SoP determined under s 196B(2) or (3) (or medical or scientific opinion if there is no SoP) upholds it: see Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192 at [53]. The manner in which these two aspects of reasonableness operate assists in resolving the third argument raised by the applicant.

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