Hall v Repatriation Commission

• Apart form [sic] the temporal association with the commencement of Mr Butler's alcohol consumption, careful examination of all the material does not provide any evidence of a particular event/occasion during his operational service or defence service that was of particular concern to Mr Butler. This remains the case, despite Mr Butler having had the opportunity to identify a particular event/occasion in his 1998 claim, and his denial of such an event(s) when questioned by Dr Dinnen in July 1998. This was again considered in Dr Dinnen's August 2006 report;

• Despite the lack of any specific information, and even denial by Mr Butler of particular events, Dr Dinnen believed that Mr Butler's service life must have involved exposure to severe stressors and/or psychosocial stressors. However, in the absence of particular evidence of events, such a view, in our opinion, involves speculation and/or conjecture and can be given no weight." 9 There was a body of material before the Tribunal referring to stress upon the Veteran arising from operational service that might have led to alcohol dependence. Having in mind the length and variety of that operational service, that is hardly surprising. Of particular significance is the fact that the Veteran saw operational service in Korea on three tours of duty between 27 June 1950 and 2 June 1954. The Veteran had just turned 20 years of age when he began his first tour of duty. The Veteran himself said that he was "on edge all the time" when on active service in Korea. Three planes from the aircraft carrier on which he was serving were shot down in action off Korea. At least two of the Veteran's mates were killed in the war. The Veteran told one of the doctors that the reaction to the deaths in Korea was: "poor bugger, let's go ashore and get drunk". The Tribunal had noted (at [39]) the wife's evidence of the Veteran's comments in relation to his Korean service as "not very good", "not happy about the war" and a "waste of young lives". His wife witnessed nightmares the Veteran suffered and he told her that going through cyclones was terrifying. 10 He was aboard HMAS Vampire at the time that HMAS Melbourne collided with USS Evans in foreign waters, HMAS Vampire being in the same group. His wife said that he was pretty upset about it. 11 Dr Dinnen explained that the personality of the Veteran was such as to suppress and deny stress. That would explain the lack of further detail from him. It is noteworthy in this respect that each of Dr Dinnen and Professor Mattick suggested that a Naval historian may be able to give an account of the details of operational service that would fill in the gaps in the bare official record. As Dr Dinnen said in oral evidence: "I can't believe that you could have a … operations that he had without overall being subjected to quite a range of stressful events in turn. We only saw the tip of the iceberg really, I think, at the interview which I conducted with him." 12 The suggestion as to the Naval historian was not followed up by the Tribunal. In that respect, I refer to what I said in Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [16]-[19] (on appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; 97 ALD 534 at [33]-[34]). 13 The other link between alcohol dependence and operational service that was identified in the material is what was described in the case as peer group pressure. One account of this link is reported by Dr Dinnen as follows: "The patient told me that his drinking was because 'when you get to Port you haven't got much else to do. You get drunk and chase the girls.' " The Veteran also attributed drinking to monotony. Later in a discussion about when the crew go ashore to drink, he also said that: "if you don't join them, they reckon there's something wrong with you" That account obviously applied to operational service. His wife said on a number of occasions that the Veteran took the view that if he did not drink he would not be accepted in the Navy. 14 During the hearing the presiding Member of the Tribunal summed up the arguments for the applicant by referring to the factors as: (1) Monotony of service life; (2) Peer pressure; and (3) Attitude to misfortune or service mishaps. There is no reference in the findings to monotony and no finding is made as to peer group pressure from June 1950 onwards. The latter is surprising as the Tribunal was expressly referred to the decision in Roncevich v Repatriation Commission (2005) 222 CLR 115 in that connection. 15 It is relevant to note that the Commission's statement of facts and contentions, filed before the hearing in the Tribunal, put in issue the existence of a reasonable hypothesis of connection rather than proposing disproof of such an hypothesis. It was argued that factor 6(f) was not related to the relevant service rendered by the Veteran as required by cl 5 of the SOP. Naturally enough, the applicant's statement of facts and contentions was directed to establishing the reasonable hypothesis. 16 The transcript of the argument that took place before the Tribunal does not reveal any submission on the part of the representative of the Commission that a reasonable hypothesis, if raised, was negated beyond reasonable doubt. That is not surprising. The only reference to reasonable doubt was in the following passage: "MS POLLOCK (Solicitor for the applicant): Well, from my point of view we only have to get to the stage of a reasonable hypothesis and then at the end of the day if that hypothesis is a reasonable hypothesis that the things that he complained of to Dr Dinnen was sufficient to create some causal connection to his operational service, then it is a matter for the respondent to be able to establish, to the satisfaction of the tribunal, beyond reasonable doubt that it's not." "DR CAMPBELL (Member presiding): That is a correct exposition, I think. That, in itself, creates some difficulties for the respondent in the absence of the veteran and the absence of material. Normally you would be relying on 119 but he would probably want to rely on it." The representative of the Commission referred to material "pointing away" in the passage immediately following that exchange. That is a common phrase used where considering whether a reasonable hypothesis has been raised pursuant to s 120(3). 17 Counsel for the Commission submits that the key to the decision lies in the finding that the Veteran commenced drinking in 1949 after he joined the Navy because he was enticed by his mates to drink and that he continued to drink alcohol thereafter because he had "acquired a taste for it". It is submitted that there is no finding that alcohol consumption altered from 1949 until separation in 1973 when it increased. It is implicit in this submission that the die had been cast between the commencement of drinking at the age of 19 in 1949 and the first period of active service commencing on 27 June 1950 and that operational service led to no increase in drinking. It is suggested that such a finding was justified by, and based upon, a questionnaire filled in by the Veteran in or about 1998. It is clear enough that that simple questionnaire was hardly directed to the point at issue. Most significantly, that analysis does not sit well with the diagnosis, apparently accepted by the Tribunal, that the Veteran's alcohol dependence developed in the mid 1950s ([38]). Thus, the onset of alcohol dependence was not until after the period of operational service in Korea. It was that dependence that provides the link with the death, not the commencement of drinking of alcohol. 18 The argument put by Counsel for the Commission is not unlike that considered in Bull 188 ALR 756. However, the discussion there concerned the existence of a reasonable hypothesis pursuant to s 120(3) rather than negating that hypothesis pursuant to s 120(1). The facts, of course, were different from those in issue here. 19 The foregoing analysis persuades me that the mis-statement of the statutory task pursuant to s 120(1) in the reasons cannot simply be ignored and treated as a slip of the pen. Satisfaction beyond reasonable doubt is an exacting standard, particularly where it is framed in the negative. As Barwick CJ said in Keeley v Brooking (1979) 143 CLR 162 at 169: "To be satisfied beyond all reasonable doubt is, for the purposes of the law, to be certain." 20 The presiding Member of the Tribunal appeared to recognise that in the comment made during the course of argument which I have quoted. There were various bases for a link between operational service and alcohol dependence in the material before the Tribunal. The Tribunal considered and dealt with some of those bases and not others. There are occasions where primary facts alleged to support a hypothesis might be positively rejected and the hypothesis, or an essential integer of it, negated beyond reasonable doubt (Byrnes v Repatriation Commission (1993) 177 CLR 564 at 570). That is not the manner in which the Tribunal proceeded and, having in mind the objective circumstances of the case, it could hardly have proceeded to find the relevant circumstances disproved in that sense. 21 In my opinion, the parties were correct in focusing argument before the Tribunal on the existence of the necessary hypothesis, as occurred in Bull 188 ALR 756, but the Tribunal ended up misdirecting itself as to the interplay between s 120(1) and s 120(3) and so applied the wrong standard of proof. The remaining grounds of appeal are best seen as aspects of that fundamental problem. I have remarked elsewhere upon the difficult task that the Tribunal has in applying these sections as they have been interpreted by the relevant authorities of the High Court and this Court (Byrne v Repatriation Commission [2007] FCAFC 126, 97 ALD 359 at [1]). 22 In my opinion, the Tribunal did apply the wrong standard of proof when arriving at the decision and, having found that a reasonable hypothesis existed, and having dealt with the facts in the way it did, the Tribunal, properly directed as to the meaning of "beyond reasonable doubt", could not have rejected the claim pursuant to s 120(1). 23 The appeal will be upheld and the decision of the Tribunal set aside. The notice of appeal seeks a further order that the matter be remitted to the Tribunal for redetermination in accordance with the law and does not seek a substantive favourable order from this Court pursuant to s 44(4), (5) and (7) of the AAT Act (cf Byrne [2007] FCAFC 126 per Gyles J at [4], Edmonds J at [14] and Buchanan J at [59]-[60]). The appeal will be stood over for a short period to enable the parties to make submissions as to the appropriate ancillary orders to be made. The Commission will be ordered to pay the costs of the applicant of the appeal. The administrative law proceeding will be dismissed with no order as to costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Counsel for the Applicant: Ms E Wood

Solicitor for the Applicant: Legal Aid Commission of NSW

Counsel for the Repatriation Commission: Miss RM Henderson

Solicitor for the Repatriation Commission: Australian Government Solicitor

Date of Hearing: 7 December 2007

Date of Judgment: 18 December 2007