Gorton v Repatriation Commission

Statutory framework 5 In simplified terms the relevant requirements in the Act for the grant of a pension on the grounds of incapacity are as follows: · A veteran who has become incapacitated from a war-caused injury or disease is entitled to a pension; s 13. An injury or disease is taken to be war-caused if it results from an occurrence that happened while the veteran was on operational service; ss 5D(2), 9. · An applicant's claim that the relevant injury or disease is war-caused must be accepted unless the Repatriation Commission is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination; s 120(1). · The Commission shall be satisfied beyond reasonable doubt that there is no sufficient ground for making the determination if, after considering the whole of the material before it, it is of the opinion that there is no reasonable hypothesis connecting an applicant's injury or disease with operational service; s 120(3). · Subject to the next two points below, there is such a reasonable hypothesis only if there is in force a relevant Statement of Principles or determination of the Commission that upholds the hypothesis; s 120A(3). · Section 120A(3) does not preclude there being a reasonable hypothesis connecting an applicant's injury or disease with his operational service provided that there is no Statement of Principles determined under s 196B(2) in respect of the relevant kind of injury or disease and the Repatriation Medical Authority has not declared under s 196B(6) that it does not propose to make such a Statement of Principles; s120A(4). · If the Repatriation Medical Authority has given notice under s 196G that it intends to carry out an investigation into the relevant kind of injury or disease, the Commission is not to determine the applicant's claim until the investigation is determined; s 120B(2). The Act also provides that: · except in making a determination to which s 120(1) or (2) applies, the Commission shall decide the matter to its reasonable satisfaction; s 120(4); · the Commission is not entitled to assume that an injury or disease is war-caused; s 120(5); and · nothing in the Act or its provisions imposes an onus of proving any matter concerning the claim on a claimant or applicant for a pension, the Commonwealth, the Department or any other person.

The issue 6 It was not disputed that the applicant is incapacitated by his hypertension or that his period of service from 25 January 1954 to 27 October 1954 constituted operational service under the Act. However, the Repatriation Commission, the Board and the AAT all decided that the applicant's hypertension was not war-caused because the relevant Statements of Principles did not support the applicant's claim that his hypertension resulted from his operational service. Statements of Principles are issued by the Repatriation Medical Authority under s 196B(2) of the Act. They are designed to set out, on the basis of sound medical-scientific evidence, the factors which, as a minimum, must exist and be related to an applicant's service before it can be said that a reasonable hypothesis has been raised connecting an applicant's medical condition with his or her service. As there were Statements of Principles covering the applicant's situation, there was no basis for argument outside those statements.

Medical evidence 7 The medical evidence accepted that Mr Gorton's drinking had commenced during his period of service and that it had contributed to his hypertension. However, the evidence as to whether the drinking had resulted from the stress of service was more equivocal. Reports from four medical practitioners were in evidence. In a letter dated 8 September 1997, Dr Dinnen, a psychiatrist commented that the patient's account is that his drinking was related to the behaviour of his colleagues on board-ship and concluded: It seems to me that the main stressful event which effected (sic) this patient's health and secondarily aggravated his dependence on alcohol was the arthritic condition which developed during service." 8 Dr David Richards, in his report dated 16 January 1997, stated that the applicant did not suggest to him that his drinking was due to the stress of service. In a report dated 30 September 1999, Dr Francis Harding Burns, OAM commented: "Mr Gorton started to drink and to smoke in Korea when he was the youngest man on board; he had been subjected to what he thought were frightening and stressful experiences during air attacks off North Korea, and he had been made to feel inadequate because he was frightened. Alcohol helped him socialise and feel better, and was part of the social custom and habit of the other men when they were ashore." Mr Gorton was also seen by a psychiatrist, Mr Neil Schultz, who commented that, "I cannot make a causative link between Mr Gorton's war related service and alcohol use if one excludes his need to resolve his anxieties about being accepted by his peers." 9 Dr Dinnen was also asked for a further opinion in the light of the assessments by Dr Schultz and Dr Harding Burns as well as evidence from Mr Brendan O'Keefe to the effect that the Arunta did not experience any strafing attack during the time that Mr Gorton served on it. Dr Dinnen, in his report dated 3 April 2000, concluded that Mr Gorton's account suggested that he was the subject of harassment and "ribbing" by his shipmates and that this 'real' perception was that the ship was under attack led to his anxiety/panic disorder during service. In his words, "the onset of that condition can be clearly identified as the stressful experience of a young man, untested in combat, apprehensive about such an eventuality, being either ribbed by his crewmates or being mistaken, leading to a heightened degree of anxiety and apprehension leading to clinical anxiety and panic disorder at the time." Dr Dinnen confirmed the diagnosis of psychoactive substance abuse/dependence and stated that that condition "does satisfy the Statement of Principles as being due to service".

The AAT's decision 10 The reasons of the AAT show that it was cognisant of its obligation to apply the four step approach laid down in Repatriation Commission v Deledio (1998) 83 FCR 82 ("Deledio"). Mr Vincent, counsel for the applicant, contended that, despite being aware of this obligation, the AAT had erred in not following those steps. The four steps, set out in Deledio at 97, are:

"1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the [Repatriation Medical] Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service …. 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."

11 The applicant proposed two hypotheses to connect his hypertension with his operational service: (a) that he had experienced a stressful event during his operational service and the resulting anxiety led to alcohol abuse and dependence which eventually led to his hypertension; or (b) that he experienced panic attacks as a result of his stressful experiences during his operational service and these panic attacks led to alcohol abuse and dependence which eventually led to his hypertension. In compliance with Deledio step 1, the AAT determined that: "There was an hypothesis in this case. It is that the Arunta was strafed. This stressed the applicant. The applicant took to drinking as a result. This led to dependence and abuse and this in turn led to hypertension." 12 The AAT concluded that step 1 was satisfied. However, it is apparent that the AAT misstated the applicant's first hypothesis. As Mr Vincent pointed out, the applicant's claim was that he was told that the Arunta was strafed and believed this, not that the strafing actually happened. For reasons that will become apparent, this error is not material to the issues before the Court in these proceedings. 13 The AAT then proceeded, in accordance with step 2 of Deledio, to identify the relevant Statement of Principles. At that time it was common ground between the parties that the relevant Statement of Principles concerning hypertension was Instrument No 83 of 1995 ("Instrument 83"). Instrument 83, which is relevant to both hypotheses, sets out a number of factors that could support a reasonable hypothesis connecting hypertension with operational service. One factor is: "suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension." The AAT was also referred to the Statement of Principles concerning psychoactive substance abuse, namely Instrument No 5 of 1994 ("Instrument 5"). Instrument 5 lists, as a factor capable of supporting a reasonable hypothesis connecting psychoactive substance abuse with operational service, the following two factors which the applicant relied on in support of the first and second hypotheses respectively: "(a) experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or (b) having a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence;" 14 In relation to steps 3 and 4 of Deledio,the AAT's reasoning was as follows: "The respondent effectively argued that step 3 is not satisfied in this case. If it is not, then the Federal Court says that the applicant must lose. If the applicant survives step 3, step 4 requires the decision maker to decide whether it is satisfied beyond a reasonable doubt that any death or incapacity suffered by the veteran did not arise from a war caused injury if the claim is not to succeed. Only at this stage is the Tribunal required to find facts from the material before it. Applying step 3 in this case there are several problems in satisfying the statements of principles. Looking first at the statement of principles on hypertension - that's instrument number 83 of 1995 - the Tribunal has concluded that the use of the word daily in clause 1(b) should be taken to mean what it literally says. This is for three main reasons. First, it would have been simple for the RMA to say something approaching daily consumption would be adequate if it had meant that in order to satisfy clause 1(b). Second, the Federal Court in Delidio's [sic] case adopted a quite serious approach to the need for there to be factual compliance with the statement of principles in question in that particular case. Although this case might be distinguished on its facts, the approach in the Tribunal's view is equally applicable to the statement of principles in question here and the facts in this case. Third, the consequences of satisfying statements of principles are considerable and very favourable for veteran. They open the way to a very generous system and result. That is understandable from a policy perspective but this is one of the reasons why the hurdles set by the statements of principles are high and if stated to be high then in the Tribunal's view should be applied in that way. As the Tribunal sees it, this disposes of the matter in the respondent's favour…".

Grounds of appeal 15 The applicant claimed that the AAT had erred, first in finding that there was no reasonable hypothesis raised on the material before it and, second, in failing to afford the parties procedural fairness by not giving them an opportunity to satisfy it on whether the applicant had suffered panic attacks. Under the first ground of appeal, the applicant raised four points which can be dealt with together. They are that the Tribunal erred by: (i) prematurely and on the balance of probabilities making findings of fact at the point at which the Tribunal was properly required to consider whether a reasonable hypothesis had been raised; (ii) finding that the only Instrument that could be applied in respect of the applicant's claimed condition of hypertension was Instrument 83 of 1995; (iii) finding that clause 1(b) of Instrument 83 of 1995 required consumption of alcohol literally every day for an unspecified period; and (iv) finding that paragraphs (a) and (b) of clause 1 of Instrument 5 of 1994 could not be raised and/or finding that those factors were disproved. 16 Mr Vincent made detailed submissions, both in writing and orally, to support these claims. They can be reduced, however, to submissions about which Statements of Principles apply to the applicant's claim and whether the hypotheses put forward by the applicant fit the templates created by the relevant Statements of Principles. Because the AAT found that the applicant's claim did not survive the third step in Deledio, it did not need to determine, at least in relation to the first hypothesis, whether it was satisfied beyond a reasonable doubt that the applicant's hypertension was not war-caused.

Premature fact finding 17 The third step prescribed in Deledio is to see if the hypothesis fits the template of the relevant Statement of Principles. This stage also does not require any determination of fact. Mr Vincent submitted that, despite this, in determining whether the hypothesis was consistent with the template in Instrument 83, the AAT engaged in fact finding contrary to the requirements of step 3 in Deledio. He submitted that the discussion of the meaning of the word "daily" showed that the AAT was considering whether the facts fit the instrument rather than whether the hypothesis fits the instrument. I have some reservations about the AAT's reasoning at this point. Firstly, when the meaning of the word "daily" is an issue, it is not very helpful merely to state that it means what it says. This issue is discussed below commencing at [25]. The reference to distinguishing Deledio on its facts is also curious, as the only relevance of Deledio is the approach embodied in the four steps formulated by the Full Court. These steps are not limited to any particular facts. I agree with Mr Vincent's comment that the reference to policy in the AAT's third reason for its interpretation of "daily" is unwarranted. These reservations, however, do not lead me to the conclusion that the AAT was indulging in illicit fact finding. 18 If the applicant's hypothesis was to fit the template in Instrument 83, it was necessary for the applicant to allege that his psychoactive substance abuse involved daily consumption of alcohol over the relevant period. It would appear, although this is not expressly stated, that the AAT formed the view that the word "daily" in Instrument 83 means "every day". In his evidence, the applicant had not claimed that he had drunk alcohol every day. When asked if he drank daily, he had responded that it was "just about daily". That being so, the AAT's comments are consistent with it concluding that the hypothesis advanced by the applicant did not include any assertion that he consumed alcohol every day and that therefore the hypothesis did not fit the template in Instrument 83. This conclusion did not involve any finding of fact about the frequency of the applicant's alcohol consumption..

The applicable Statement of Principles 19 As stated above, both parties agreed that the relevant Statement of Principles concerning hypertension was Instrument 83. Mr Vincent submitted that, despite this, as a matter of law, the AAT was required to consider whether the applicant's hypothesis conformed to either of the two instruments that succeeded Instrument 83, namely Instrument 64 of 1998 and Instrument 25 of 1999. For present purposes, these latter two instruments are, subject to punctuation, identical. Clause 5(b) in both of them reads: "suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the accurate determination of hypertension". 20 The submissions for the applicant relied on the Full Court decision in Repatriation Commission v Keeley (2000) 98 FCR 108 ("Keeley"). The case concerned an application for a war-widow's pension. At the time of the widow's application, a Statement of Principles ("First Statement") existed which applied to her claim. Both the Repatriation Commission and the Veteran's Review Board refused the application. After the applicant had lodged her application for review by the AAT, a new Statement of Principles ("Second Statement"), which did not cover the applicant's situation, was made. The AAT applied the Second Statement and affirmed the refusal of the pension. The applicant's claim that she was entitled to have the First Statement applied to her application was upheld on appeal to this Court and again by the Full Court. The Full Court held (Lee and Cooper JJ at [35], Kiefel J at [77]) that, once she had made her application for a pension, Mrs Keeley had an accrued or substantive right to have her claim determined under the Act according to law. All three judges held that the right that accrued was one to which s 50 of the Acts Interpretation Act 1901 (Cth) applied and therefore, in the absence of any clear intention to the contrary in the Second Statement, Mrs Keeley was entitled to have her claim determined under the First Statement. Lee and Cooper JJ stated in their joint judgment at [46], Unless a contrary intention is clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued. With regard to beneficial legislation such as the Act, it may be assumed that a construction of substantive provisions least likely to work or cause unfairness in result is to be preferred. It may be concluded that Parliament intended that the review of a decision on a claim made pursuant to a Statement more beneficial to a claimant than the terms of a Statement that replaced the former Statement after the decision had been made, is to be conducted as if the former Statement had not been revoked. 21 For the purpose of this discussion, I will assume, though I am not in the position to decide, that the situation here is the opposite of that considered by the court in Keeley;that is, that the later Statement of Principles is more favourable. On that assumption, the question is whether the AAT may or should apply the more favourable Statement. This question has been raised, but not been necessary to answer, in at least two recent cases. In Arnott v Repatriation Commission [2001] FCA 262, decided on 16 March 2001, a Full Court held the same outcome would be reached whichever Statement applied. In Harris v Repatriation Commission [2000] FCA 1687, a Full Court refused to allow this question to be raised for the first time on appeal. Unfortunately, I do not have the luxury of avoiding this issue. It is not possible for me to conclude that the outcome of this case would be the same whichever Statement of Principles applied. 22 Although on this question Keeley provides no authority, it does provide some guidance. It is useful to set out comments made in Keeley by Lee and Cooper JJ at [44] immediately before the comments quoted above: The terms of s120A(2) show a clear intention by Parliament that such a Statement is to "affect" the accrued right obtained by the lodgment of a claim under the Act to have the claim decided by the Commission. It is plain that by postponing a right to have a claim decided until a Statement has been determined, Parliament intended that the decision, and therefore the right to have a decision made, may be affected by a Statement determined under s 196B and that a pending claim is to be decided by application of the Statement when determined. However, that circumstance does not apply after a claim has been determined and the right that has accrued under the Act is a right to have the determination reviewed. The Act is silent about the effect upon such an accrued right of the revocation of a Statement and determination of another Statement under s 196B(8)(c). It is significant that there is no provision equivalent to s 120A(2) where the Authority is carrying out an investigation under s 196B(7) preparatory to deciding whether to revoke a Statement and determine another Statement under s 196B(8). 23 In this passage, their Honours distinguish between the situation which exists before a claim has been initially determined and after it has been determined. Their Honours note that the Act is silent on the effect of the revocation of a Statement and the determination of another Statement after the initial determination of a claim. In my opinion, it is not necessary where the later statement of principles is more beneficial, to rely on the reasoning that led the Court in Keeley to lean towards applying the earlier (and more beneficial) Statement of Principles. In particular, the decision in Keeley was based, in part, on the view that, with beneficial legislation such as the Act, a construction of substantive provisions least likely to cause unfairness is to be preferred. The decision in Keeley is not authority for the principle that, when choosing among current or revoked statements, the revoked statement is the one that applies. The Act provides in s 196B(7) and (8) for the continual updating of Statements of Principle so that current statements embody sound medical-scientific evidence against which claims are assessed. In providing for the Board to review decisions of the Repatriation Commission on the merits taking into account not only material considered by the Commission but also additional evidence, the Act evinces an intention for the claim to be assessed in the light of all available evidence, including medico-legal evidence as embodied in the most recent Statement of Principles; ss 138 and 139. The AAT also has the duty to review decisions of the Board on the merits and conduct a complete rehearing of the claim. As Bowen CJ and Deane J commented in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 in relation to appeals to the AAT, "The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal." 24 The decision of the Court in Keeley can thus be seen as an exception to this position, dictated by the beneficial nature of the legislature to which the Court referred. The exception applies to preserve the benefit of an existing entitlement to be assessed in the context of a more favourable Statement of Principles. In my opinion, the AAT is obliged to consider the applicant's claim in the context of the Statement of Principles No 25 of 1999 unless Instrument 83 is more favourable. If the latter position is the case, then the applicant's claim must be considered in the context of Instrument 83.

Daily consumption of alcohol 25 The applicant's third point under his first ground of appeal, is whether the AAT erred in its interpretation of the word "daily" in Instrument 83. The word does not appear to be used in any special technical sense and is not defined in the Instrument. Its meaning is therefore a question of fact; Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78. However, the question whether a hypothesis advanced by an applicant accords with a statement of principles which has statutory force is a question of law or at least of mixed fact and law; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280. If the AAT is in error on this point then that error is reviewable. 26 As mentioned in [18] above, it appears that the AAT interpreted the word "daily" in Instrument 83 as meaning "every day". Mr Vincent submitted that the AAT's interpretation did not accord with the beneficial purpose of the Act to which the Statements of Principles are subsidiary. He used the example of a veteran who had been unable to drink for a short period because he was in a detoxification clinic to demonstrate the manifestly unreasonable nature of the interpretation. 27 The AAT's reasons for its view are expressed in the extract quoted at [14] above. As mentioned above, I do not find those reasons helpful. The statement that the word means what it says assumes that it has only one meaning and no shades of meaning. This is rarely if ever the case and certainly not in this case. Prima facie the word "daily" means "every day"; London County Council v South Metropolitan Gas Company [1903] 2 Ch 532 per Joyce J at 537-538. However, as Barry J commented in Foster v Howard [1949] VLR 311 at 311, it is an adjective "the precise meaning of which is to be ascertained from the context in which it is used and particularly the substantive which it qualifies". In my opinion, the precision which the term conveys will differ depending on whether it is used prescriptively or descriptively. A doctor's instructions that medicine is to be taken daily may easily be understood as meaning every day. However, we would not generally cavil at the description of a doctor's daily visits to a hospital if he did not generally go on Sundays. We would still regard it as accurate to describe an athlete as training daily even though it turned out that she missed a number of days a year. I do not accept that the phrase, "daily consumption of alcohol" in Instrument 83 could only apply to a veteran who drank every day without exception. Even if that meaning were to be accepted, there would still be the problem of the period over which the "daily" consumption had to be proved. It is neither necessary nor possible to give here a precise meaning to the term. However, for the purposes of formulating a hypothesis to be tested against the Statement of Principles in Instrument 83, I am satisfied that the qualification, "just about daily", is sufficient for the hypothetical facts to fit the description of daily consumption in clause 1(b) of Instrument 83. Whether the applicant's drinking fits that description is a question which did not need to be addressed in the context of Deledio step 3. For this reason, I find that the AAT was in error in its interpretation of Instrument 83. My finding of error on this point is sufficient to justify remitting the matter to the AAT for further consideration according to law.

Psychoactive substance abuse 28 Following the passage from the AAT's reasons quoted above at [14], the AAT went on to state that it considered that, "the applicant does not satisfy statement of principles number 5 of 1994 on psychoactive abuse or dependence." The AAT stated its reasons for this conclusion as being that it accepted the respondent's proposition that there was "no stressor as a fact". The comment is a reference to clause 1(a) of Instrument 5 which is quoted in above at [13] above. The respondent led evidence by a consulting historian that supported this proposition. Mr Vincent submitted, however, that the AAT had misstated the applicant's hypothesis being that he was led to believe that the Arunta was strafed. Even if the event did not occur, the important fact was that the applicant believed that it had occurred. The evidence of both psychiatrists, Doctors Schultz and Dinnen, supported the conclusion that what a person believes is happening is influential in their response. 29 The AAT's treatment of this issue was most perfunctory, obviously because it believed that its findings on Statement 83 had effectively disposed of the matter. There is, in the AAT's decision, some support for Mr Vincent's proposition that the AAT had combined Deledio steps 3 and 4 and had made findings of facts at the point when it should merely have been determing if the hypothesis fell within the relevant Statement of Principles. As I have already decided for other reasons that the matter must be remitted to the AAT, it is not necessary for me to resolve this issue or to express an opinion on the final ground of appeal raised by the applicant, namely the question of procedural fairness.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Solicitor for the Applicant: Legal Aid Commission

Solicitor for the Respondent: Australian Government Solicitor