Guy v Repatriation Commission

Federal Court of Australia|2002-04-30|Before: Cooper J

BACKGROUND 1 On 3 February 1998, the applicant lodged with the Department of Veterans' Affairs ("the Department") a claim for a disability pension and medical treatment for a medical condition of gastro-oesophageal reflux disease, said to be service related. The claim was rejected by the Repatriation Commission ("the Commission") on 13 March 1998. The decision of the Commission was affirmed by the Veterans' Review Board on 29 November 1999. 2 On 27 January 1999, the applicant lodged with the Department a claim for a disability pension and medical treatment for alcohol dependence or alcohol abuse, said to be service related. The claim was rejected by the Commission on 9 March 1999. The decision of the Commission was affirmed by the Veterans' Review Board on 29 November 1999. 3 The applicant sought review of each decision of the Veterans' Review Board by the Administrative Appeals Tribunal ("the AAT") on 10 February 2000. The AAT affirmed each of the decisions under review on 22 June 2001. 4 The applicant applied to this Court by way of appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") from the decision of the AAT to affirm the decisions under review. 5 In his notice of appeal the applicant stated in paragraph 2 : "2. THE QUESTIONS OF LAW raised on the appeal are : (a) Believe some operational service may have been wrongly excluded. Will expand further on this matter at a later date; (b) Insufficient weight put on evidence of Dr Janice (sic) Carter. Will expand further when written decision is received." 6 On the hearing of his application, the applicant was given leave to amend his grounds of appeal to add the following grounds : "1) Whether the Tribunal erred in law by failing to supply sufficient reasons in its decision to allow the appellant to understand why his claims were refused. 2) Whether the Tribunal has erred in law by restricting the definition of 'stressful event' in Statement of Principles 5 of 1994 to 'combat'. 3) Whether the Tribunal has erred in law by restricting the definition in 'severe stressor', Statement of Principles 76 of 1998 dealing with Alcohol Dependence or Alcohol Abuse to 'combat'. 4) Whether the Tribunal has erred in law by failing to apply the diagnostic criteria prescribed in the Statement of Principles when finding that the appellant did not suffer from a generalised anxiety disorder. 5) Whether the number of misfindings and findings made by the Tribunal which are untrue have vitiated the judgment arrived at by the Tribunal."

the legislative scheme 7 Under s 13 of the Veterans' Entitlements Act 1986 (Cth) ("the Act"), the Commonwealth is liable to pay a pension, by way of compensation, to a veteran who has become incapacitated from a war-caused injury or a war-caused disease: s 13(1)(b) and (d). For the purposes of the Act, "war-caused injuries or diseases" are defined in s 9. So far as is relevant for present purposes, that section provides : "(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if : (a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; (b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran. ... " 8 "Operational service", for the purpose of the Act, is dealt with in ss 6, 6A, 6B, 6C, 6D, 6E and 6F. Section 6C deals with post World War II service in operational areas. An "operational area" is an area described in column 1 of schedule 2 to the Act during the period specified in column 2 of that schedule. Item 1 in schedule 2 relates to the Korean War. The operational area is described as the area of Korea, including the waters contiguous to the coast of Korea for a distance of 185 kilometres seaward from the coast. The relevant period is from and including 27 June 1950 to and including 19 April 1956. 9 "Operational service" is eligible war service for the purposes of the Act: s 7(1)(a). 10 A claim for a pension is made to the Commission under s 14. The Commission is required to determine the claim for a pension in accordance with the procedure specified in s 19. 11 Section 120 deals with the onus of proof where a claim for a pension, in respect of the incapacity from injury or disease, or death of a veteran, relates to operational service rendered by the veteran. So far as presently relevant, it provides : "120 Standard of proof (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Note: This subsection is affected by section 120A. ..... (3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) that the injury was a war-caused injury or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-caused disease; or (c) that the death was war-caused or defence-caused; as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. Note: This subsection is affected by section 120A. (4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction. Note: This subsection is affected by section 120B. (5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that: (a) an injury suffered by a person is a war-caused injury or a defence-caused injury; (b) a disease contracted by a person is a war-caused disease or a defence-caused disease; (c) the death of a person is war-caused or defence-caused; or (d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act. (6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on: (a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or (b) the Commonwealth, the Department or any other person in relation to such a claim or application; any onus of proving any matter that is, or might be, relevant to the determination of the claim or application. ..... 120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles (1) This section applies to any of the following claims made on or after 1 June 1994: (a) a claim under Part II that relates to the operational service rendered by a veteran; (b) a claim under Part IV that relates to: (i) the peacekeeping service rendered by a member of a Peacekeeping Force; or (ii) the hazardous service rendered by a member of the Forces. Note 1: Subsections 120(1), (2) and (3) are relevant to these claims. Note 2: For peacekeeping service , member of a Peacekeeping Force , hazardous service and member of the Forces see subsection 5Q(1A). ..... (3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196B(2) or (11); or (b) a determination of the Commission under subsection 180A(2); that upholds the hypothesis. Note: See subsection (4) about the application of this subsection. (4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of: (a) the kind of injury suffered by the person; or (b) the kind of disease contracted by the person; or (c) the kind of death met by the person; as the case may be." 12 The functions of the Repatriation Medical Authority ("the RMA") are dealt with by s 196B of the Act which, so far as presently relevant, provides : "196B(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to : (a) operational service rendered by veterans; or ... the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out : (d) the factors that must as a minimum exist; and (e) which of those factors must be related to service rendered by a person; before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service. ... (14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if: (a) it resulted from an occurrence that happened while the person was rendering that service; or (b) it arose out of, or was attributable to, that service; or (c) it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey: (i) to a place for the purpose of performing duty; or (ii) away from a place of duty upon having ceased to perform duty; or (d) it was contributed to in a material degree by, or was aggravated by, that service; or (e) in the case of a factor causing, or contributing to, an injury - it resulted from an accident that would not have occurred : (i) but for the rendering of that service by the person; or (ii) but for changes in the person's environment consequent upon his or her having rendered that service; or (f) in the case of a factor causing, or contributing to, a disease - it would not have occurred : (i) but for the rendering of that service by the person; or (ii) but for changes in the person's environment consequent upon his or her having rendered that service; or (g) in the case of a factor causing, or contributing to, the death of a person - it was due to an accident that would not have occurred, or to a disease that would not have been contracted : (i) but for the rendering of that service by the person; or (ii) but for changes in the person's environment consequent upon his or her having rendered that service." 13 A determination by the RMA is a disallowable instrument for the purposes of s 46A of the Acts Interpretation Act 1901 (Cth). 14 A reasonable hypothesis which connects the injury, disease or death with the circumstances of the particular service rendered by the person for the purposes of s 120(3) may be taken to be a theory, proposition, suggestion or postulation which suggest reasonably, although without proof, that some event in, or aspect of the service rendered by a veteran may be linked to the injury, disease or death of the veteran: Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571; Repatriation Commission v Keeley (2000) 98 FCR 108 at [11]. 15 The steps to be taken by the AAT in a case such as the present were identified in Repatriation Commission v Deledio (1998) 83 FCR 82. Their Honours said (at 97 - 98) : "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 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 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 (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."

the relevant STATEMENTS of principles 16 The applicant's claims before the AAT were covered by three relevant Statements of Principles ("SoP"). Instrument No 121 of 1995 was the SoP concerning gastro-oesophageal reflux disease. Instrument No 5 of 1994 was the SoP concerning psychoactive substance abuse or dependence. Instrument No 48 of 1994 was the SoP concerning generalised anxiety disorder. Although reference was made to the AAT by counsel for the applicant and by the advocate for the respondent, to Instrument No 76 of 1998 concerning alcohol dependence or alcohol abuse, the applicant's claims were not to be, and were not in fact assessed by reference to this SoP. 17 Instrument No 5 of 1994, so far as is presently relevant, provided : "1. Being of the view that there is sound medical-scientific evidence that indicates that psychoactive substance abuse or dependence and death from psychoactive substance abuse or dependence can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting psychoactive substance abuse or dependence or death from psychoactive substance abuse or dependence with the circumstances of that service, are : (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; or ... 2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(e) must be related to any service rendered by a person. ... 4. For the purposes of this Statement of Principles: 'DSM-IV' means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders; 'ICD code' means a number assigned to a particular kind of injury or disease in the International Classification of Diseases 9th Revision, US Department of Health and Human Services, Pub. No 80-1260; 'psychiatric condition' means any psychiatric illness that attracts a diagnosis under DSM-IV; 'psychoactive substance abuse or dependence' means a maladaptive pattern of use, attracting ICD code 303 or 304, that is indicated by either : (a) continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or (b) recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated); 'stressful event' means an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress." 18 The effect of paragraph 2 of the SoP is that the factors identified in paragraphs 1(a) and (b) must be related to service rendered by the veteran. That is, the factor must satisfy s 196B(14) of the Act, and for the purposes of the proceedings before the AAT, subparagraphs 14(a), (b) or (c) of the section as set out above. 19 The case put by the applicant before the AAT was that he satisfied either par 1(a) or (b) of the SoP. The psychiatric condition claimed was a generalised anxiety disorder ("GAD"). 20 The SoP for GAD, Instrument No 48 of 1994, so far as presently relevant, stated : "1. Being of the view that there is sound medical-scientific evidence that indicates that generalised anxiety disorder and death from generalised anxiety disorder can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority hereby determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connection generalised anxiety disorder or death from generalised anxiety disorder, with the circumstances of that service, are : ... (b) experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder; or ... 2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(d) must be related to any service rendered by a person. ... 4. For the purposes of this Statement of Principles: 'generalised anxiety disorder' means a psychiatric disorder that is a generalised anxiety disorder attracting ICD code 300.02, and which meets the following description (derived from DSM-IV): (a) excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least six months, about a number of events or activities (such as work or study), which : (i) the person finds difficult to control; and (ii) which is associated with three or more of the following six symptoms, at least some of which are present for more days than not for the previous six months: (A) restlessness or feeling keyed up or on edge; (B) being easily fatigued; (C) concentration difficulties or mind going blank; (D) irritability; (E) muscle tension; (F) sleep disturbance (difficulty falling or staying asleep, or restless unsatisfying sleep); and (iii) the focus of which is not confined to features of an Axis I disorder, for example, it is not about : (A) having a Panic Attack (as in Panic Disorder); or (B) being embarrassed in public (as in Social Phobia); or (C) being contaminated (as in Obsessive-Compulsive Disorder); or (D) being away from home or close relatives (as in Separation Anxiety Disorder); or (E) gaining weight (as in Anorexia Nervosa); or (F) having multiple physical complaints (as in Somatization Disorder); or (G) having a serious illness (as in Hypochondriasis); and (iv) it does not occur exclusively during Post-Traumatic Stress Disorder; and (v) either the anxiety or worry, or physical symptoms, cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and (b) which is not due to the direct physiological effects of: (i) a drug of abuse; or (ii) a medication; or (iii) a general medial [sic] condition (such as hyperthyroidism); and (c) which does not occur exclusively during a Mood Disorder, a Psychotic Disorder, or a Pervasive Developmental Disorder. 'DSM-IV' means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders; 'stressful event' means an occurrence which evokes feelings of anxiety or stress." 21 Again, par 2 required that the experiencing of a stressful event for the purposes of par 1(b), be related to service rendered by the veteran for the purposes of s 196B(14) of the Act. Further, for the satisfaction of the definition of "generalised anxiety disorder" in par 4 of the SoP, each of the elements in pars 4(a)(i), (ii), (iii), (iv) and (v) was required to be satisfied before the psychiatric disorder of GAD was made out. 22 Instrument No 121 of 1995 included in the factors which may give rise to a reasonable hypothesis connecting gastro-oesophageal reflux disease with the circumstances of service, the following : "(n) psychoactive substance abuse or dependence involving alcohol prior to, and involving the consumption of alcohol continuing at least until, the clinical worsening of gastro-oesophageal reflux disease; or" 23 The position before the AAT, common to both parties, was that if the applicant made out his claim of psychoactive substance abuse or dependence involving alcohol under Instrument No 5 of 1994, he would satisfy the requirements of the SoP concerning gastro-oesophageal reflux disease.

The reasons of the AAT 24 The reasons of the AAT must be read against the statutory background, the requirements of the SoPs and the way the case was put by counsel for the applicant before the AAT, as appears from the transcript of those proceedings. 25 The applicant submits that the AAT did not follow the procedures laid down by the Full Court in Repatriation Commission v Deledio and that, in breach of the duty cast upon it by s 43(2B) of the AAT Act has failed to give proper written reasons for its decision. Specifically, he contends that it failed to state what evidence it accepted, rejected and took into account with respect to material findings of fact. He further submits that the AAT failed to include in its reasons findings on material questions of fact which s 43(2B) required be made. 26 Section 43(2B) of the AAT Act provides : "(2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based." 27 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 75 ALJR 1105, the High Court of Australia was concerned with the obligations of the Refugee Review Tribunal under s 430(1) of the Migration Act 1958 ( Cth). That section provided : "430(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that : (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." 28 The issue before the High Court was whether this section obliged the Tribunal to make and set out findings on all matters of fact that were objectively material to the decision it was required to make. McHugh, Gummow and Hayne JJ, in their joint judgment said (at [68] ) : "[68] Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word 'material' in s 430(1)(c). It was said (Singh (2000) 98 FCR 469 at 481 [47] - [48]) that 'material' in the expression 'material questions of fact', must mean 'objectively material'. Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read 'material' as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision." 29 The observations of their Honours are apposite to the operation of s 43(2B) of the AAT Act. Accordingly, the AAT was only obliged to set out its findings on the questions of fact which it considered material in order that the applicant can see what facts the AAT considers material and the reasoning it applied in reaching its conclusions. In any event, a failure to comply with s 43(2B) without more will not vitiate the decision: Repatriation Commission v O'Brien (1985) 155 CLR 422 at 446. 30 The approach to be taken by a Court to the reasons of an administrative decision-maker on judicial review was confirmed by the High Court of Australia in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 - 272 : "When the Full Court referred to 'beneficial construction', it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic (1993) 43 FCR 280. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be 'concerned with looseness in the language ... nor with unhappy phrasing' of the reasons of an administrative decision-maker (Pozzolanic (1993) 43 FCR 280 at 287). The Court continued (Pozzolanic (1993) 43 FCR 280 at 287): 'The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.' These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (See McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616). ..." 31 In my view, a fair reading of the AAT's reasons shows that it undertook its task in accordance with the procedure laid down in Repatriation Commission v Deledio as set out above. 32 The AAT found that the applicant was suffering from gastro-oesophageal reflux disease which was the medical condition in respect of which the applicant had claimed a pension under the Act. The AAT also found that he suffered from a degree of alcohol abuse which was the medical condition in respect of which he claimed a pension under the Act as well. The AAT then identified the question as being "whether the oesophageal reflux and the alcohol abuse are war-caused". This was the question required to be answered because of the statutory provisions contained in s 13 of the Act, by reference to the definition in s 9 of the Act. 33 The concession by the respondent in respect of the cause of the oesophageal reflux disease, which is recorded in paragraph [4] of the reasons, meant that the only issue which required proof in accordance with s 120 of the Act was whether the alcohol abuse was war-caused. 34 The hypothesis considered by the AAT was that the applicant's service in the Australian Navy between mid-1954 to early 1955, whilst onboard a ship in Japanese and Korean waters, subjected him to stressful events which led to the applicant's alcohol abuse. So much appears from paragraph [5] of its reasons. 35 There was no suggestion before the AAT that no relevant SoP applied. The applicant's case was put on the basis that he satisfied the factors contained in both paragraphs 1(a) and 1(b) of Instrument No 5 of 1994, dealing with psychoactive substance abuse. The AAT was required to ascertain whether the hypothesis put forward was a reasonable one and to do this it was required to see if it "fitted the template" in terms of the Deledio test. This it proceeded to do, as appears from paragraph [4] of the reasons. When the AAT speaks of the requirement that the condition be brought on "by an occurrence of a stressful event which occurred during war service", it is clearly referring to and applying paragraph 1(a) of Instrument No 5 of 1994. When it speaks of the condition being brought on "by a war-caused psychiatric condition", it is again referring to paragraph 1(b) of the same instrument. 36 The AAT deals with the question of a war-caused psychiatric condition in paragraphs [6] to [12] inclusive of its reasons. The question posed was whether the applicant suffered from GAD in 1954/1955. The AAT had before it the conflicting opinions of two psychiatrists. Dr Carter was of the opinion that the applicant developed GAD in 1954 and that he had continued to suffer from such a disorder thereafter throughout his life as evidenced by his continuing alcohol abuse. On the other hand, Dr Kingswell was of the opinion that the applicant had not had in 1954, or at any time thereafter, a psychiatric disorder of GAD. 37 The AAT rejected the opinion of Dr Carter that the applicant had in 1954, and continued to have, the psychiatric disorder. It did so, in part, by rejecting her underlying assumption that the applicant would not, whilst in port, have gone out with other sailors and got drunk and, on occasions, got into trouble unless he had the same psychiatric illness. The AAT rejected the assumption and the opinion of Dr Carter because there was a contrary medical specialist opinion which it found more credible, and because the contention that the applicant had had throughout his life such a psychiatric condition was not something the applicant or his lawyers asserted. In fact, the suggestion of a continuing psychiatric condition was rejected by his counsel. The AAT found in paragraph [11], that the suggestion of a continuing psychiatric disorder was against the demonstrable facts of his coping with life in the work and social context after leaving the Navy and undertaking a career in the Queensland Police Force from which he voluntarily retired with the rank of Inspector. 38 To the extent that the AAT appears to have accepted the evidence and the reasoning of Dr Kingswell that the applicant was not suffering from GAD, the applicant contends that it erred in law in doing so because Dr Kingswell, it is said, did not apply the diagnostic criteria in SoP Instrument No 48 of 1994. The applicant relies upon the cross-examination of Dr Kingswell before the AAT as establishing his contention. 39 Dr Kingswell conceded in cross-examination that he did not put to the applicant during interview questions as to each of the symptoms listed in the definition of generalised anxiety disorder in paragraph 4(a)(ii)(A), (B), (C), (D), (E) and (F), nor sought the date on which any symptom first occurred, nor the period for which it persisted. He contended that it was unnecessary and unhelpful to do so at such a distant point in time. Dr Kingswell had with him when giving evidence a copy of the SoP Instrument No 48 of 1994. He expressed the opinion that any anxiety or distress or physical symptoms which the applicant exhibited in 1954 did not cause clinically significant distress or impairment in social, occupational or other important areas of functioning. In these circumstances, he concluded that the applicant did not satisfy the criteria in paragraph 4(a)(v) of the SoP, and that therefore the definition of GAD could not be made out. There is nothing in the cross-examination to suggest that Dr Kingswell did other than to apply criteria from the relevant SoP to assess whether the applicant satisfied this essential element. So far as is relevant, the doctor said : "So you can't comment as to whether he had GAD; you didn't - - -?---No. Well - - -

- - explore with him whether he had GAD back then?---No. I can comment very definitively that had he had those symptoms, at that time they would have had to be in excess of what you would ordinarily expect in the situation that he was faced with. They would have had to persist for more than six months and they would have had to cause social and occupational impairment. My argument is that those conditions were not met. He did not - - - But you didn't ask him about those matters, did you?---It wouldn't matter. They're not - the symptoms are not the disorder. It's the duration of the symptoms and they must be accompanied by a social and occupational impairment and in the absence of social and occupational impairment you do not have a disorder. Well - - -?---You have non-specific symptoms occurring in somebody - - - You didn't ask him about any of those symptoms, did you, let alone the duration of them?---Wouldn't have made any difference to my opinion. Because of the absence of?---Because of the absence of any evidence of social and occupational impairment, because the symptoms were probably appropriate in the situation that he found himself and because you would be left with not knowing whether the symptoms were in fact the consequence of his - or a disorder other than his alcohol abuse. So you had a whole lot of things going on here that really had nothing to do with suffering from generalised anxiety disorder. Perhaps that's right but what we've got to do is apply the statement of principles?---Well, the statement of principles says that he must have these symptoms and have them for six months. And look, if you're interested in a retrospective diagnosis - did he have it in 1954? Well, you know, that's really up to you to decide. But you couldn't answer that, could you, because you didn't ask him about any of those symptoms?---Well, look, I could have asked him about all of those symptoms and it wouldn't have made any difference. If he had said, 'Yes, I have all of those symptoms,' what difference would that make? Well, he would satisfy the statement of principles definition - - -?---No, he wouldn't. No, he wouldn't. They haven't been present for six months and they're not associated - - - But you didn't ask so how would you know?---All right. He told me that there were a number of incidents occurring during his service that caused him prominent anxiety. In between he functioned extremely well - he made accelerated progress in the Navy. He did not give a history that was consistent with being psycho-socially impaired as a result of psychiatric disorder. Simply put, doctor, you can't answer the question - - -?---Well, I think I have.
- - about the presence or otherwise of the generalised anxiety disorder during that service because you didn't ask him about the symptoms; would you agree with that?---Well, no, I don't. I disagree completely. I just said I've answered it definitively. I don't believe that he had generalised anxiety disorder during that period of his service. What questions did you ask him as to whether he had social impairment?---Well, I asked him about his progress through the military. Okay. Dealing with that time in Korea?---Yes, he said that he made really good progress. He said that he never failed in his duties, he enjoyed his period with the military, that he made accelerated - - - ... MR O'GORMAN: So doctor you can't assist us in relation to the application of the generalised anxiety disorder definition in that period we are talking about?---I don't accept that. I appreciate that you're not going to accept my view of it but I don't accept that. I don't think that there is any evidence that this man had generalised anxiety disorder during his period of service, that he made exemplary progress with the possible exception of drinking too much. He does describe being anxious at different periods during his service, and I think that would be the expected reactions to the stress of the situation that he was in. And I think that that view is well documented in Dr Carter's report, where she relates all of the symptoms to quite specific events, and I don't think answers the questions that you have put to me any more clearly. She has not said you know, between April blat and December blat, that he had those symptoms over an enduring period. She said that he has got these symptoms at these particular times, and gets no closer to the question than I have. Well, I won't respond to that, doctor, other than to have you confirm that you didn't address the relevant criteria for a diagnosis of generalised anxiety - - -?---No. Well, I dispute - - - Can you wait until I have finished, please, - to be able to consider whether a generalised anxiety disorder existed in that period in the 1950s that we are talking about, and as required by the statement of principles. You would agree with that?---The statement of principles are not confined to a constellation of symptoms occurring for a brief period of time. They are much broader than that. They require that you satisfy the other - - - Would you like me to ask you the question again, doctor?---Yes. Well, the question is have I failed completely to address the statement of principles in - - - I am not being critical, I am just confirming?---No, no. I am not suggesting that you are critical, but what I am saying is that I have considered the statement of principles; I have not missed a diagnosis by not considering whether a group of symptoms were present on a particular day; that in order to have a psychiatric diagnosis there needs to be much more than just a handful of symptoms present at a particular time. MR MULLER: Well, probably a statement of principles is the bare minimum?---The statement of principles are quite clear. Either the anxiety or worry or physical symptoms cause clinically significant distress or impairment and social or occupational functioning or other important areas of functioning. MR O'GORMAN: What are you reading from?---This is the statement of principles. And what part are you reading from?---Page 3 of 4, instrument 48, 1994, sub-section 5 under the Criteria A. Excessive anxiety or worry occurring more days than not for at least six months and associated with clinically significant distress, impairment in social or occupational functioning or other important areas of functioning. And I am of the view that Mr Guy's operational service was exemplary. There is no evidence that he was impaired. And I don't think Dr Carter has presented it either. Doctor, can you take me - can you show me anywhere in your notes - in your report - where you have considered the criteria as outlined under the heading for the definition of generalised anxiety disorder, as contained in the statement of principles, where you have dealt with those issues in the period in question?---I think we are arguing here at cross purposes. But I believe I have considered the statement of principles. You will say that because I haven't asked a question about such and such, that I have not. If that is the case, then I have not. If not asking a man about muscle tension 37 years ago amounts to not considering the statement of principles, or not addressing the statement of principles, then you are correct. Or - any of the other matters that I have referred to, that is correct isn't it?---Yes. Concentration, easy fatigue, and so on. ..." 40 On the issue of whether or not the applicant was suffering from GAD, the AAT was entitled to rely on the evidence of Dr Kingswell and give it such weight as it considered appropriate. 41 The AAT dealt with the application of paragraph 1(a) of SoP Instrument No 5 of 1994 in paragraphs [5] and [13] of its reasons. It said : "5. The applicant served in the Australian Navy in the 1950s. The proposition has been put that the applicant was subjected to some stressful events whilst he was serving in Japanese and Korean waters between mid-1954 and early 1955. There was, at that stage, no warlike enemy action. There was an uneasy truce. He never experienced any military or naval engagements or righting. The stressful events are said to have been events which occurred on board ship. One was a stand to in which it was thought that there might have been an enemy aircraft approaching - needless to say, it did not. There were other events involving him as a stoker and having to be in cramped or a claustrophobic situation in the bowels of the ship. ...

As for any stressful events on service, the Tribunal does not accept that the applicant suffered from anything too stressful. He never saw any military or naval action of a warlike nature. He might have been a bit frightened now and again, but not to the extent required by the Statement of Principles to produce a psychiatric illness nor to cause him to go off and get drunk to forget his troubles, forget his worries, or to get over any terrible trauma. He has had none of that." 42 I do not accept that the AAT construed the definition of "stressful event" in paragraph 4 of this SoP as requiring combat, or as being equivalent to military or naval action of a warlike nature. On a fair reading of paragraph [5] of its reasons, the AAT is simply stating the facts as found by it. The absence of warlike enemy action, and the absence of any military or naval engagements, or, fighting in which the applicant was directly involved, are material facts found by the AAT because their absence excludes them as a possible source of a stressful event or events. To recognise that they did not exist as a source does not thereby impose a limitation on that term as defined in the SoP. It simply reflects the reality that some other circumstances must be found to exist which constituted or gave rise to a "stressful event" as defined. 43 The AAT has found that the applicant did not experience a "stressful event" as defined in the SoP whilst onboard ship during service in Japanese and Korean waters between mid-1954 and early 1955. Although it referred to one instance specifically, that being the stand to because of a possible enemy aircraft approaching the ship, the AAT dealt with all the onboard incidents collectively and generally. It found that those events may have caused fright or fear from time to time, but not to the extent required by the SoP to produce psychiatric illness, nor to the extent to cause the applicant "... to go off and get drunk to forget his troubles, forget his worries, or to get over any terrible trauma". 44 The AAT in so finding held in effect that the incidents were not, to use the wording of the SoP definition, "external stimuli (such as combat) that would result in psychological stress." The weight to be given to the evidence of Dr Carter as to the impact of these incidents on the applicant was a matter for the AAT. Provided her evidence has been considered by the AAT, as it has, no error of law is made out: Repatriation Commission v Thompson (1988) 82 ALR 352 (FC) at 358. The question of whether the incidents relied upon by the applicant were "stressful events" as defined, was a question of fact to be determined by the AAT. The finding of fact made in answering that question is not reviewable by this Court in the absence of legal error: Thompson's Case at 358. 45 The position with respect to the grounds relied upon to date, is as follows : (a) The reasons of the AAT do disclose the material facts found by it and the reasons which led it to dismiss the application. Ground 1 of the notice of appeal is not made out. (b) Ground (b) discloses no reviewable ground of appeal. (c) Grounds 2 and 4 are not made out. (d) Ground 3 is irrelevant because SoP No 76 of 1998, although referred to before the AAT, was not the relevant SoP and was not applied by the AAT in coming to its decision. (e) Although the AAT referred to the applicant being the President of a sub-branch of the RSL when he was in fact the President of a sub-branch of the Naval Association, that of itself does not constitute error of law. Nor does the fact, if it be the case, that the AAT made errors of fact in the findings which it made, as the applicant contends it did in a number of cases, mean there is reviewable error. There is no error of law simply in making a wrong finding of fact: Waterford v The Commonwealth of Australia (1987) 71 ALR 673 at 689. Ground 5 discloses no reviewable error of law. 46 The only remaining ground is ground (a) of the original application for review. 47 The issue of the extent to which, if at all, the service of the applicant rendered during the steaming of "HMAS Shoalhaven" from Kure to Hong Kong, at Hong Kong during the refit, and steaming back to Kure, was operational service was an issue before the AAT. 48 Counsel for the respondent in this application submits that although the issue was raised by the Advocate for the Commission before the AAT, it was not pressed and was not a live issue for determination by the AAT. For this reason, she submits, there is no mention of it by the AAT. I have perused the transcript of the proceedings before the AAT and cannot find any occasion when the contention, that the voyage to Hong Kong, the time spent there and the return voyage was not operational service, was withdrawn or abandoned. On the contrary, the contention was pressed in the Advocate's final submission to the AAT. So far as is presently relevant, he said : "MR SMITH: For the Korean period, he left Australia first port of call - I have already shown you, exhibit 5 - the first port of call on 17 July 1954, and the first port of call coming back was Darwin, 13 March 1955. I don't think there is much dispute there. The important point is that in the middle of it, he made a voyage to Hong Kong for re-fitting. It is the respondent's submission that this itself is not eligible service. ... ... MR MULLER: Well, what event or events occurred on service - on eligible service? MR SMITH: The eligible service - at Hong Kong - the only thing that happened on Hong Kong which is relevant, is the event in the boilers where he was nearly electrocuted. MR MULLER: Well, that happened in Hong Kong, did it? MR SMITH: It was in Hong Kong, yes. All right? The others - he went to that during the cross-examination and - - - MR MULLER: Well, the other matters occurred during eligible service, did they? MR SMITH: Some did, some didn't. That is an important point. Now, where did I put it? Things that happened on eligible service, if you go back to exhibit 3, the last four paragraphs - was in the Inland Sea of Japan, so presumably that would have been on eligible service. MR MULLER: On or not? MR SMITH: It would have been. That is the Inland Sea of Japan. The boarding parties and searching for debris. MR MULLER: What happened on the Inland Sea? MR SMITH: Oh, what he said was : Also, I was at my closed up station in company with AB seamen in an after-steering compartment in the stern of the ship, which we received a voice pipe for the order to take over the navigation of the ship, as the main steering had failed. And essentially, they had to sort of - steer blind - I suppose, while down in the bowels of the ship. Stir, the other one was in patrolling - went with the boarding parties. They searched for debris. He also mentioned earlier than that, being called on an action station. On exhibit 5, he talks about arriving home from Darwin to Sydney - they had to battle all down the Queensland Coast - they had to battle a huge cyclone. But that was after the last port of call. MR MULLER: Well, that is not eligible. MR SMITH: That would not be eligible service, no. ..." 49 Mr Smith referred to the boiler incident in Hong Kong by reference to the criteria in SoP Instrument No 76 of 1998 relating to Alcohol Dependence or Alcohol Abuse in his final submission. As I stated earlier, this SoP revoked the earlier Instrument No 5 of 1994. However it was not applicable to the circumstances of the applicant and was not applied. Nonetheless, the Advocate said : "And it gives examples here of threat of : ... serious injury or death, engagement of the enemy on which the casualty is to participate in the observation of casualty clearance. Etcetera. Now, the only one that might come into that would be the boiler room incident in Hong Kong but, as I pointed out, this would not be operational service. Not only that, but nobody, not even Dr Carter, has suggested that he's experienced intense fear, helplessness or horror. As far as we can see, he just reacted as any - he was as scared as any normal person would have been and, not only that, - he was drinking heavily before that. He had said under cross-examination and in his written statements, he got shore leave most of time he was in port; he used to go out and get drunk most of the time." (Emphasis added) 50 The AAT made no findings as to whether or not the voyage to Hong Kong, the stay in Hong Kong for the refit, or the return voyage constituted "operational service" for the purposes of the Act. It also made no finding as to whether the incident of near electrocution during descaling of the ship's boiler, claimed by the applicant as a stressful event as defined in SoP Instrument No 5 of 1994, occurred, and if so, whether it satisfied the definition. 51 The failure of the AAT to make findings relevant to this period of the applicant's service, having regard to s 43(2B) of the AAT Act, enables this Court to infer that such service was not considered by the AAT to be material. This then may reveal a misapplication of the law to the facts or jurisdictional error: Repatriation Commission v O'Brien (1985) 155 CLR 422 at 446; Minister for Immigration and Multicultural Affairs v Yusuf at [69]; Applicant V346 of 2000 v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 536 at [59]. 52 The service in question was clearly material to the questions before the AAT, as were the incidents which the applicant pointed to as occurring during that period of service and which he contended amounted to stressful events for the purpose of SoP Instrument No 5 of 1994. The respondent's position before this Court is that the respondent concedes that the particular service was operational service which was material to the deliberations of the AAT. Such a concession, I am satisfied, was not made to the AAT; it is inconsistent with the final submissions of the respondent's Advocate as appears from the transcript of the proceedings before the AAT Why the service was not regarded as material to the AAT does not appear from its reasons. However, failure to treat it as material involved an error of law in my view. 53 The circumstances of the applicant's service which were not regarded as material by the AAT were an important element of the hypothesis he relied upon to satisfy the criteria of SoP Instrument No 5 of 1994. The error of not regarding the service as material operational service could have affected the outcome of the case. That is a sufficient reason to order the decision of the AAT be set aside: Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1997) 76 FCR 513 at 519. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate: Dated: 30 April 2002 Applicant appeared in person

Counsel for the Respondent: Miss E Ford Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 14 February 2002 Date of Judgment: 30 April 2002

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