Hardman v Repatriation Commission

Statutory Framework 5 The appeal to the primary judge was made pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) (Hardman v Repatriation Commission [2004] FCA 1174). That appeal was confined by s 44 to a question of law. Fact finding is for the Tribunal. 6 Section 120(1) of the Act provides: 'Where a claim under Part 11 for a pension in respect of the incapacity from ... disease of a veteran … relates to the operational service rendered by the veteran, the Commission shall determine that the … disease was a war-caused disease … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.' 7 Subsection (3) then provides relevantly: 'In applying subsection (1)… the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining

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.'

8 Section 120A of the Act provides for determination by the Repatriation Medical Authority of statements of principles applicable to particular kinds of injury, disease or death. Subsection (3) then provides relevantly: '(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) …

that upholds the hypothesis.' 9 Statement of Principles 58 of 1998 (SoP) concerning depressive disorder was in force at the material time. Relevant portions are as follows: '3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that depressive disorder and death from depressive disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.

4. … at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.

5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person's relevant service are…

(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or

(c) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder;

"clinically significant" means sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or General Practitioner;

"severe psychosocial stressor" means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;'

The Claim and the Tribunal's Decision 10 The appellant's claim was made on the basis that he suffered from PTSD, ischaemic heart disease and diabetes mellitus, conditions alleged to be war-caused by reason of certain incidents which occurred during his operational service. The claims for ischaemic heart disease and diabetes mellitus were dependent on the claim for PTSD being accepted. The Tribunal found beyond reasonable doubt that the incidents said to give rise to the PTSD did not occur at all, or at least not in the form alleged by the appellant. On that basis, the Tribunal found that the PTSD was not war caused. The Tribunal then went on to deal with a possible alternative diagnosis of depressive disorder. The Tribunal considered that an incident had occurred during operational service which might fall within the definition of severe psychosocial stressor within the meaning of the SoP. It found, however, that the material before it overwhelmingly suggested a clinical onset of depression no earlier than 1969, that is, more than two years after the assumed severe psychosocial stressor. It followed that para 5(b) of the SoP could not apply. It then held that para 5(c) was not applicable because the appellant only received ongoing management from 1996 and certainly not from 1967.

The Error of Law Alleged before the Primary Judge 11 The error on a question of law identified in the appeal to the Court was: 'Did the Tribunal err in making its findings on the hypothesised clinical onset of depression within 2 years of the Applicant having his appendectomy at the Cottage hospital?' and the ground of appeal was expressed as follows: 'The Tribunal found that "this material overwhelmingly suggests a clinical onset of depression no earlier than 1969". In arriving at that finding, the Tribunal erroneously engaged in fact finding and failed to determine whether there were facts raised by the material that pointed to clinical onset within the 2 years required by the SoP.' There was no appeal in relation to the finding concerning para 5(c).

The Primary Judge's Reasons for Decision 12 It was accepted by both parties before the primary judge that the relevant principles which the Tribunal was bound to apply were those set out by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio) at 97-98: 'At the risk of being repetitious we would restate the course which the Tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 Amendments) 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 that person as follows:

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.' 13 It was argued that the Tribunal erred in law in its approach to step 3 in that it had considered all the facts before it and rejected the hypothesis on the basis of preferring some facts to others. The critical portion of the primary judgment in rejecting that argument is as follows: 'The fact, if it be a fact, that Mr Hardman, at the time he joined the ship, was happy and relaxed but that after he returned from the operation he was withdrawn, may both be said to be raised facts relevant to the hypothesis. However, in the material which was before the Tribunal there were other matters which if true, might go to disproving the hypothesis, namely that the alcohol questionnaire and subsequent medical reports made no reference to depression. It was not for the Tribunal to determine whether these matters were or were not correct as a matter of fact. However, with respect to the submissions, it is not at all clear from the Tribunal's reasons that it did so. It was required to determine, whether on the basis of all the material before it there was raised the relevant hypothesis claimed to be reasonable. It was for the Tribunal to determine whether the raised facts did indeed ground the hypothesis that there was a connection between the depressive disorder from which Mr Hardman claimed to suffer and his operational service. In my view, it was open to the Tribunal to determine by reference to all the material before it, including the reports, that the raised material did not ground the hypothesis (and this was particularly the case because the Tribunal found that there was nothing in the available material which suggested that Mr Hardman received or required "ongoing management" by 1967 which was a requisite component of the Statement of Principle). Accordingly the applicant has not shown that the Tribunal erred in law. Particularly, in my view, the applicant has not shown that at this, the third stage in the Deledio sequence, the Tribunal engaged in fact finding. Rather it did what it was obliged to do, namely consider all of the material before it in determining whether the material before it raised a reasonable hypothesis. It found it did not.'

Grounds of Appeal 14 The notice of appeal from the primary judgment is as follows: '2.1 His Honour erred at [41], in construing s.120(3) of the Veterans' Entitlements Act 1986, as requiring the Tribunal, in determining whether the 'raised facts' supported the appellant's hypothesis, to have regard to 'raised facts' which supported the hypothesis and 'raised facts' that might go to disproving it.

2.2 His Honour erred at [41] in holding that the Tribunal had not erred in finding that the 'raised facts' did not support the appellant's hypothesis of a connection between his depression and operational service.

2.3 His Honour erred at [41] in holding that the question of whether the appellant received or required 'ongoing management' by 1967 was relevant to the appellant's grounds of appeal.' 15 It is necessary to go to the facts in a little more detail to properly understand the issues on appeal.

The Tribunal's Reasoning 16 In the course of dealing with the issue of PTSD the Tribunal found facts concerning alleged stressors. One of the alleged stressors was identified by the appellant as follows: 'Towards the end of May 1965, I became ill with appendicitis. The ship's doctor decided that I needed surgery. Because Parramatta was not adequately equipped, I was transferred to a Royal Navy tanker which in turn transferred me to a hospital at Tawau in Sabah, North Borneo. It was called the Cottage Hospital. It was in fact a native hospital run by missionaries. The surgeon was a Scotsman who had to be sobered up before he could undertake the surgery. The hospital was a small group of huts with tin roofs and no sides, on the edge of the jungle. It had few facilities, no toilets, poor hygiene, and sparse supplies of poor quality food and water. Whilst I was there, I had a visit from a RAN lieutenant who was captaining a Malaysian patrol boat. He left me a case of baked beans and another of beer. He also wrote to my mother about seeing me.

After I had been there about five days, a wounded Indonesian was admitted. He appeared to be very ill. During the night, I saw several Malayan soldiers take him from his bed. I heard a lot of shouting and some cries of pain. A short time later, I heard gunshots. I didn't see him again. I tried to question the native staff about what had happened. They appeared scared and were unwilling to talk about what had happened, even denying any knowledge of the incident.'

17 The Tribunal found that no more happened than that an Indonesian patient was removed from the hospital by Malaysian Field Police. It was satisfied on the evidence that the Indonesian was not executed and that the references to shouting and cries of pain and to pointing of guns were not credible and were embellishments. When it came to consider the appellant's alternative claim for depressive disorder, the Tribunal said (at [145]): 'The Tribunal did find, however, that a patient was removed from the hospital and questioned. This may suffice as a stressor for the purposes of depressive disorder. In accordance with the definition of "severe psychosocial stressor" in SoP58/98 it may have been an identifiable occurrence that evoked feelings of substantial distress in Mr Hardman.' 18 The Tribunal had earlier said at ([139]): 'The alternative diagnosis pressed by Mr Colborne on the applicant's behalf was depressive disorder. This was a fair proposition. Associate Professor Quadrio said that, if there was no stressor for post traumatic stress disorder, she would diagnose depressive disorder (transcript, 16 December 2002, pages 57 and 58).' 19 Counsel for the appellant before the Tribunal argued that 'the raised facts' for the purpose of Deledio step 3 supported the hypothesis that depression assailed the appellant soon after the alleged hospital incident. Those 'raised facts', adapted to findings by the Tribunal, were as follows: '(1) When Mr Hardman joined the Parramatta he was a happy, relaxed person who got along with all members of the ship's company;;

(7) One night at the Cottage Hospital in Tawau, Mr Hardman saw several Malaysian servicemen remove a wounded Indonesian against his will and heard gunfire shortly thereafter;

(9) When Mr Hardman returned to the Parramatta, following his operation, he was withdrawn, wouldn't talk or go ashore [presumably with others], would get into arguments and was not happy at all;

(10) Towards the latter part of the Parramatta's service with the Far East Fleet Mr Hardman was really hitting the alcohol;

(11) By the mid-sixties, Mr Hardman was aggressive, depressed, had become a heavy drinker and spoke of events during his hospitalisation which were abhorrent and the subject of repeated nightmares and appeared and still does appear to be in emotional turmoil;' Fact (7) has to be adapted to take account of the findings of the Tribunal about that incident to which reference has already been made. 20 The source for fact (11) was Exhibit A9 which was a statement in the following form: 'Ernest Thirkell, C/- Mr L. Plain, 2 Daisy Lane, Bargo 2574

The Registrar, Administrative Appeals Tribunal, Sydney

I have known Garry Hardman since the early sixties, both as a personal friend and as a fellow shipmate aboard HMAS PARAMATA. [sic]

Prior to our deployment to the Far East Strategic Reserve he was a fit young man playing in the ship's Rugby Union side. He was a happy person with a relaxed disposition, who got along well with all members of the Ship's company.

After that deployment I was drafted to another ship. When I saw Garry again in the mid-sixties his attitude was changed to the point where he was aggressive and often depressed, frequently talking of suicide. I distinctly remember exclaiming to him: "You're as mad as a cut snake!" He had changed from being a social drinker to a very heavy drinker. During this time, on every occasion that we met, he would, after consuming alcohol, tell me of incidents which he witnessed during his deployment. He also spoke of events which had occurred during his hospitalisation. These memories were abhorrent to him and he spoke of them as the subject of repeated nightmares. He also discussed the reasons why he left the anti-submarine warfare branch and joined the regulating branch of the Navy. He appeared and still does appear always to be in emotional turmoil.

Yours faithfully' 21 The source for fact (9) and fact (10) was evidence given to the Tribunal by Mr Gallagher, who was a shipmate of the appellant, as follows: 'What was he like on the Parramatta? - - - When he first joined the ship he was a terrific bloke. We used to have a good time together. We used to go everywhere together. However, after he come [sic] back from his operation he had changed. He was withdrawn, he wouldn't talk, he wouldn't go ashore. He'd get into a lot of arguments and wasn't very happy at all. We had no idea what was going on.' 'Are you aware of Mr Hardman, during the period that you served with him, exhibiting any problems with alcohol whilst on board the ship? - - - Yes, I do. Towards the latter part of the cruise he was really hitting it.' 22 The evidence of the psychiatrist, Dr Quadrio, referred to by the Tribunal as noted earlier was as follows: 'Evidence was given today by someone that knew him quite well in the navy to the effect that he went from being a fairly easy going sort of seaman to after he came back from the operation he had and whatever else he experienced in Borneo to being, he was described as withdrawn, argumentative and drinking a lot more than he had before? - - - Yes.

What sorts of conditions would that be consistent with? - - - Depression, PTSD or most likely depression and PTSD would be the most common things that would cause that particular constellation of symptoms.' 23 The Tribunal's response to the submission of counsel for the appellant as to the hypothesis of depressive disorder was to say 'The Tribunal finds it difficult to see that in the raised facts.'. The Tribunal then went on to refer to other aspects of the evidence and expressed the conclusion that the material overwhelmingly suggested the clinical onset of depression no earlier than 1969 when there had been a claimed suicide attempt. It held that the hypothesis therefore did not conform to the SoP and was thus not reasonable as required by s 120(3) of the Act.

ARGUMENTS ON APPEAL 24 Counsel for the appellant submitted that in so ruling the Tribunal clearly made a finding of fact concerning the onset of depressive disorder based upon facts and matters regarded by it as contrary to the hypothesis put forward on behalf of the appellant in preference to those facts which (if correct) supported the hypothesis. It was submitted that the Tribunal erred in law in not following Deledio as it interpreted Bushell v Repatriation Commission (1993) 175 CLR 408and Byrnes v Repatriation Commission (1993) 177 CLR 564. The error is well illustrated by Meehan v Repatriation Commission (2002) 35 AAR 353 (Meehan). The primary judge should have so held. 25 Counsel for the respondent submitted that the primary judge was correct in concluding that the authorities required that all of the material should be considered - favourable and unfavourable to the hypothesis - in considering whether the hypothesis is 'reasonable' and that that judgment is a question of fact. The primary judge accepted that the Tribunal was not entitled at step 3 of the Deledio process to determine the correctness or otherwise of facts whether in favour of, or contrary to, the hypothesis. Counsel also relied upon the qualification to be found in Bushell at 414 citing East v Repatriation Commission (1987) 16 FCR 517 (East) at 532 that an hypothesis cannot be reasonable if it is 'obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous'.

Whether the Tribunal and the Primary Judge Erred 26 The primary judge was faced with a difficult decision. The critical portions of the Tribunal's reasons are not crystal clear. In particular, the statement that the Tribunal found it difficult to see the raised facts as supporting depression as a disease assailing the appellant soon after the alleged stressor is capable of more than one construction. It may have been an indirect way of finding that the raised facts did not, in truth, support the hypothesis at all. If so, that would be an end to the matter. That judgment was a judgment of fact for the Tribunal to make. Disagreement by a court with that finding does not establish error of law. (Bull v Repatriation Commission (2001) 188 ALR 756 (Bull)at [22].) The Tribunal, on the other hand, may have been saying that the facts referred to were consistent with the hypothesis when considered in isolation but were overwhelmed by countervailing facts and matters and so not reasonable. The primary judge appears to have understood the Tribunal's decision in the latter sense. It should be so read. That accords with the most natural reading of the Tribunal's decision. If the Tribunal had intended to say that the facts relied upon by the appellant did not support the hypothesis at all, then it would have been expected to have said so. The Tribunal's finding that the material to which it had referred 'overwhelmingly suggests a clinical onset of depression no earlier than 1969' also indicates that, in its opinion, the material pointed in two directions, although that pointing in one direction overwhelmed the other. 27 It needs to be borne in mind that the Tribunal was prepared to assume for the purposes of s 120(3) that the hospital incident might have been a severe psychosocial stressor within the meaning of the SoP. The Tribunal also seems to have accepted that the appellant suffered from a depressive disorder for the purposes of s 120(3). There was thus a connection with depression in accordance with the SoP. The point at issue was whether there was a reasonable hypothesis that there was clinical onset of that depression within two years of the hospital incident. The primary judge appeared to regard that hypothesis as depending upon the proposition that the appellant was happy and relaxed at the time he joined the ship but withdrawn after he returned from the operation. If that were all that was involved, there would have been no error of law by the Tribunal for reasons adequately explained in Bull. 28 However, as pointed out by counsel for the appellant, that was not all. In the first place, the evidence of Messrs Gallagher and Thirkell went well beyond that bald statement. Next, the existence of a stressor was assumed. Then there was the opinion of Professor Quadrio that Gallagher's description of the appellant's conduct after he returned to the ship was consistent with depression. The Tribunal had accepted the principle that the onset of depressive disorder should be assessed by identifying the point at which the appellant displayed symptoms that would have enabled a clinician to diagnose a depressive disorder. There was thus an hypothesis available on certain of the facts that the relevant symptoms were displayed after the return of the appellant to the vessel and well within the two year period required by the SoP. To reject that hypothesis on the basis that it was swamped by countervailing material is a finding which preferred some facts to others and so rejected those facts upon which the relevant hypothesis could be based. That is directly contrary to the three steps as described in Deledio. 29 What of the Bushell (East)qualification relied upon by counsel for the respondent? There is a large question as to whether that qualification continues to have much or any practical life after the enactment of s 120A. Further, neither the primary judge nor the Tribunal relied upon that passage in arriving at their respective decisions. It cannot reasonably be applied in the present circumstances on the assumptions made by the Tribunal. 30 The ground of appeal 2.3 relates to the primary judge's reference to the finding concerning the receipt of, or requirement for, ongoing management by 1967. That finding by the Tribunal related to para 5(c) of the SoP, a finding from which there was no appeal. Although the reference is somewhat puzzling, it was not an independent ground of the primary decision and so is not an independent ground of appeal. 31 The appellant has thus succeeded in establishing error of law by the Tribunal in departing from the established construction of s 120(3) of the Act and the primary judge should have so found. 32 It is accepted that the steps set out in Deledio are those logically demanded by s 120 of the Act: Hill v Repatriation Commission [2005] FCAFC 23 (Hill) at [115]. However, it is apparent that following those steps can mislead a lay tribunal as this case (and the case of Meehan cited by counsel for the appellant) illustrates. It is clear enough that s 120A was enacted to deal with the difficulty inherent in applying s 120(3) following the decisions in Bushell and Byrnes. That amendment settled the major problem in applying s 120(3). It correspondingly defined and restricted the area for judgment arising under that provision and so limited the practical operation of it. In most cases the hypothesis will be obvious as will the relation of it to the applicable SoP. There is a risk that the Tribunal's primary role of fact finding can be diverted into convoluted hypothetical reasoning by too mechanical an application of the Deledio steps in any given case. Those steps, as such, are not found in the Act. There are many cases in which the Tribunal can proceed to fact finding with little more than a glance at s 120(3). Indeed, in many cases there would be no error of law involved in disposing of a case under s 120(1) without adverting to s 120(3) (Hill at [80] and [85]). 33 It follows that the appeal should be allowed. There is a certain air of unreality about that result in the present case bearing in mind the findings which have been made by the Tribunal that are unaffected by error. It might be thought that the error of law upon which the appellant has succeeded is technical. However, it has not been contended that the matter should not be returned to the Tribunal in the event that error of law is established. It would be an unusual case involving the application of s 120 of the Act that would not be returned to the Tribunal to be dealt with on the merits. (See the discussion in Hill at [81]-[83]).

Conclusion 34 In our opinion, the appeal should be allowed; the orders of the primary judge should be set aside and, in lieu, it should be ordered that the appeal to this Court be allowed; that the matter be remitted to the Tribunal to be determined according to law; and that the respondent pay the appellant's costs of the appeal and of the primary hearing. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Appellant: Legal Aid Commission of NSW

Solicitor for the Respondent: Australian Government Solicitor