Hogno v Repatriation Commission

Federal Court of Australia|2010-09-24|Before: Flick J

03, cited Seymour v The Migration Agents Registration Authority [2007] FCAFC 76, 45 AAR 370, followed SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, 235 ALR 609, cited TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175, 88 ATC 4279, 19 ATR 1067, cited Tunks v Repatriation Commission [2008] FCA 521, 102 ALD 274, distinguished Van Ewijk v Repatriation Commission [2004] FCA 17, cited

Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY GENERAL DIVISION NSD 591 of 2010

ON APPEAL FROM THE VETERANS' APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: DENNIS HOGNO Applicant AND: REPATRIATION COMMISSION Respondent

JUDGE: FLICK J DATE OF ORDER: 24 september 2010 WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

The Amended Notice of Appeal as filed on 13 July 2010 is dismissed.
The Applicant is to pay the costs of the Respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY GENERAL DIVISION NSD 591 of 2010

ON APPEAL FROM THE VETERANS' APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: DENNIS HOGNO Applicant AND: REPATRIATION COMMISSION Respondent

JUDGE: FLICK J DATE: 24 september 2010 PLACE: SYDNEY

REASONS FOR JUDGMENT

Mr Hogno was born in January 1942 and served in the Australian Army from May 1958 until May 1966. He served at Butterworth in Malaya from 14 January to 20 October 1965.
On 25 June 2004 he lodged a claim for the payment of benefits. That claim was resolved pursuant to the Veterans' Entitlements Act 1986 (Cth) ("Veterans' Entitlements Act"). An application for review was received by the Veterans' Review Board in February 2005 and the Board affirmed the decision under review in May 2008.
In August 2008 Mr Hogno lodged an application for review of the decision with the Administrative Appeals Tribunal.
Before the Tribunal Mr Hogno claimed a special rate of pension on the ground that war-caused alcohol dependence and anxiety disorder rendered him incapable of remunerative work. He also claimed to have war-caused cardiomyopathy.
On 29 April 2010 the Administrative Appeals Tribunal published its reasons for affirming the decision under review: Re Hogno and Repatriation Commission [2010] AATA 306. The Tribunal accepted Mr Hogno's claim in respect to what it described as "war-caused anxiety disorder" but rejected his claim in respect to "war-caused alcohol dependence". The Tribunal was not satisfied that Mr Hogno had cardiomyopathy.
Orders were made by the Tribunal.
Mr Hogno appealed to this Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("Administrative Appeals Tribunal Act").
Subsequently, on 23 July 2010, the Tribunal concluded that there had been an "obvious error" in the text of its decision and made an order pursuant to s 43AA(1) of the Administrative Appeals Tribunal Act.

An Appeal Confined to a Question of Law - Basic Principles

Section 44(1) of the Administrative Appeals Tribunal Act provides as follows: A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. The conduct of appeals from decisions of the Tribunal is further regulated by Order 53 of the Federal Court Rules and, in particular, rule 3(2) which provides as follow: The notice of appeal shall be signed by the applicant or his solicitor and shall state: (a) the decision of the Tribunal from which the appeal is brought, the members constituting the Tribunal and the date when the decision was made; (b) the question or questions of law to be raised on the appeal; (c) the order sought; and (d) briefly, but specifically, the grounds relied upon in support of the order sought.
A number of propositions in respect to the jurisdiction being exercised when an appeal is brought pursuant to s 44(1) are now well established.
First, although s 44(1) states that a party "may appeal" to this Court, the jurisdiction being exercised is not the appellate jurisdiction of the Court but rather the Court's original jurisdiction: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 61 to 62 per Bowen CJ and Deane J, and at 71 per Smithers J; TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, 88 ATC 4279, 19 ATR 1067; Australian Postal Corporation v Hughes [2009] FCA 1057 at [6], 111 ALD 579 at 581.
Second, the subject matter and scope of an appeal is limited to the question of law and does not extend to a re-hearing of the whole matter: cf Brown v The Repatriation Commission (1985) 7 FCR 302 at 305 per Bowen CJ, Fisher and Lockhart JJ. It was there observed at 304: The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it. See also: Kowalski v Military Rehabilitation and Compensation Commission [2010] FCAFC 10 at [38] to [39], 114 ALD 8 at 19 per Marshall, Tracey and Foster JJ. An appeal "… 'on a question of law' is narrower than an appeal that merely 'involves' a question of law with the result that where an appeal lies 'on a question of law', the subject matter of the appeal is the question or questions of law'…": Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd [2010] FCAFC 94 at [12] per Dowsett and Gordon JJ.
Third, the requirements imposed by O 53 r 3(2) of the Federal Court Rules are mandatory requirements in the sense that they must be complied with before the Court can embark on an exercise of jurisdiction conferred by s 44: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 523 per Ryan J. A notice of appeal which does not state a question of law may be struck out in whole or in part: (1990) 12 AAR 515 at 519.
Fourth, O 53 r 3(2) requires the "question of law" to be stated as a pure question of law and not a mixed question of fact and law: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232, 38 AAR 55 at 59 to 60. Branson and Stone JJ there observed: [18] In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal. Appl'd: Hussain v Minister for Foreign Affairs [2008] FCAFC 128 at [32] to [34], 169 FCR 241 at 254. Questions, for example, prefaced by the words "whether the Tribunal was entitled to find…" and "whether the Tribunal was entitled to take into account…" are thus impermissible since they leave uncertain whether they identify questions of fact or law: Australian Telecommunications Corporation v Lambroglou, supra, at 523 per Ryan J. His Honour there also observed, at 524, that it was not "legitimate to call in aid the grounds supplied in purported compliance with O 53, r 3(2)(d) to read down the questions stated as required by paragraph (b) to what are truly questions of law". Appl'd: Kowalski v Military Rehabilitation and Compensation Commission [2010] FCAFC 10 at [39], 114 ALD 8 at 20 per Marshall, Tracey and Foster JJ; Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154 at [36], 67 ATR 555 per Edmonds J. Questions which are prefaced with the words "did the AAT err in law…" are, similarly, not questions of law: Seymour v The Migration Agents Registration Authority [2007] FCAFC 76 at [7], 45 AAR 370. The requirement to state "briefly, but specifically, the grounds relied upon" calls for a "brief statement explaining why the answer to the question (or questions) of law will lead to the making of the order sought": Brown v Repatriation Commission [2006] FCA 914 at [7] per Branson J.
It should finally be noted that when considering the reasons for decision of the Tribunal this Court should not scrutinise those reasons with a view to discerning error where none truly exists; reasons should be read in a balanced and fair manner: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Brennan CJ, Toohey, McHugh and Gummow JJ there summarised the approach to be pursued as follows at 271 to 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. The Court continued: "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. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. [footnotes omitted] See also: Kirby J at 290 to 293; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25], 235 ALR 609 at 617 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Black v Minister for Immigration and Citizenship [2007] FCAFC 189 at [36], 99 ALD 1 at 9.

The Questions of Law Raised on Appeal

The Amended Notice of Appeal as filed on 13 July 2010 formulates the Questions of Law as follows: 2.1 Whether it is a valid exercise of the power given to the Tribunal by section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 ("AAT Act") to affirm a decision that a disease is not war-caused within the meaning of section 9 of the Act, if the Tribunal itself finds that the disease was war-caused within the meaning of section 9. 2.2 Whether the Tribunal poses for itself and answers the question required by section 120(1) of the Act as to whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant's disease of alcohol dependence is a war-caused disease, if the Tribunal makes findings: (a) it is satisfied the material before it raises a reasonable hypothesis connecting alcohol dependence with service; (b) it is satisfied the applicant's drinking increased within a short time of commencing overseas service; (c) the weight of the evidence is that the applicant had reached a level of drinking prior to the accident (by which the applicant claimed a connection between alcohol dependence and service) that the applicant maintained for many years; (d) it is satisfied any increase in drinking after the accident was minimal and immaterial; (e) it is not satisfied the applicant's alcohol dependence is war-caused. 2.3 Whether the Tribunal is required to consider section 24(2)(b) when determining whether a claimant is entitled to payment of disability pension under the Act at the Special Rate provided by section 24 of the Act.
The first Question of Law was abandoned at the outset of the hearing of the appeal. Given the order made by the Tribunal on 23 July 2010 pursuant to s 43AA(1) of the Administrative Appeals Tribunal Act, it was common ground that the issue raised by this first Question need not be resolved.
No submission was advanced that the remaining two Questions of Law did not properly raise a question of law for the purposes of s 44(1) of the Administrative Appeals Tribunal Act.

The Veterans' Entitlements Act

The remaining Questions of Law raised by the Amended Notice of Appeal direct attention to:

s 120 of the Veterans' Entitlements Act, being that provision dealing with the "standard of proof" to be applied; and
s 24 of the same Act, which deals with the criteria to be satisfied where payment of pension at the "special rate" is claimed.

Section 120(1) and (3) relevantly provide as follows: 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. … (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.
The relationship between these two sub-sections is not self-evident. But that relationship has been helpfully addressed by Mason CJ, Deane and McHugh JJ in Bushell v Repatriation Commission (1992) 175 CLR 408 at 413 as follows: The relationship between s 120(1) and s 120(3) Notwithstanding the submission of counsel for the Commission, s 120(3) is not exhaustive of the content of s 120(1). Sub-section (3) is concerned with whether "the material" raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of sub-s (3), as demonstrated by its terms and its history, is to ensure that a claim to which s 120 applies is not met unless there is some material which raises the relevant causal hypothesis. … At 415 their Honours concluded in part: If the material does raise a reasonable hypothesis of a connexion between the service and the injury, disease or death, the claim must be dealt with in accordance with s 120(1). That is to say, the Commission must determine that the injury, disease or death was war caused "unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination". The use of the terms "the material" and "raise" strongly suggests that sub-s (3) is not concerned with the proof or satisfaction of a claim but with whether there is some "material" which calls for a determination under s 120(1). The phrase "[i]n applying subsection (1) or (2)" (emphasis added) in s 120(3) also suggests that s 120(1) is the governing provision.
In those cases where there is a reasonable hypothesis that an incapacity is war-caused, but where the claim is refused, Mason CJ, Deane and McHugh JJ further emphasised the need for the Commission to be satisfied beyond reasonable doubt that the facts supporting the hypothesis cannot be accepted. Their Honours thus said at 416: The Commission will be satisfied beyond reasonable doubt "that there is no sufficient ground for making [the] determination" if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination. But unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed; we cannot conceive of a case where, for the purpose of s 120(3), the hypothesis is reasonable having regard to the raised facts, yet the Commission could be satisfied, "beyond reasonable doubt, that there is no sufficient ground for making the determination" even though the raised facts are not disproved. Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc with the operational service, it seems convenient simply to treat the case as governed by the application of s 120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist. Brennan J (as His Honour then was) also emphasised the need for the Commission to be satisfied beyond reasonable doubt of facts which "destroy" the hypothesis that an incapacity is war-caused. His Honour expressed this conclusion at 427 as follows: However, in a case where a causal connexion between the circumstances of operational service and a veteran's morbid condition is a matter of hypothesis only, the raising of a reasonable hypothesis by the evidence not only precludes the operation of sub-s (3) but also will generally preclude a determination under sub-s (1) that there is no causal connexion. In such a case, where a decision-maker makes a determination under sub-s (1) on the same material as that which led to a conclusion under sub-s (3) that there is a "reasonable hypothesis" of connexion, it would be impossible to conclude beyond reasonable doubt that there is no causal connexion. Before a negative conclusion could be reached, the decision-maker would have to be satisfied beyond reasonable doubt of the existence of some further fact which destroys the applicability of the reasonable hypothesis of causal connexion.
This explanation as to the manner in which s 120(1) operates was again revisited by Mason CJ, Gaudron and McHugh JJ in Byrnes v Repatriation Commission (1993) 177 CLR 564. Their Honours there further explained the position as follows at 570 to 571: The passages in the joint judgment in Bushell that indicate that once the "raised facts" raise a reasonable hypothesis that is the end of the matter unless the raised facts are disproved [(1992) 175 CLR at 414, 415-416] should not be taken to suggest that proof beyond reasonable doubt of a further, inconsistent fact will not be sufficient, under s. 120(1), to preclude a finding by the Commission that the injury was war-caused. The remarks of the majority in Bushell were directed specifically to a situation where the raised facts giving rise to the hypothesis covered "the whole of the material" bearing on the hypothesis. They were not directed to a case where the veteran relies on part only of the material before the decision maker. Proof beyond reasonable doubt of a fact inconsistent with the reasonable hypothesis would, by implication, demonstrate that "the factual foundation upon which the hypothesis can operate does not exist". The position may be summarized as follows: (1) First, sub-s (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s. (1) of s. 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
And, finally, when applying these provisions, it is common ground that the course which the Tribunal was to take has been stated as follows by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 ("Deledio") at 97 to 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, (that is, 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:
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.
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.
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.
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. As pointed out in Byrne v Repatriation Commission [2007] FCAFC 126, 242 ALR 620 ("Byrne"), there has been general endorsement of the approach set forth in Deledio, subject to the qualification that there has been disapproval of the proposition that "[i]f no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail": at 627 per Buchanan J.
The criteria to be satisfied where a payment of pension is sought at the special rate are set forth in s 24 of the Veterans' Entitlements Act. Sub-sections (1) and (2) of s 24 relevantly provide as follows: Special rate of pension (1) This section applies to a veteran if: (aa) …; and (aab) …; and (a) …; and (b) …; and (c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and (d) ... (2) For the purpose of paragraph (1)(c): (a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if: (i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or (ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and (b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking. Again, the inter-relationship between s 24(1)(c) and s 24(2) is far from self-evident.
Section 14, it may be noted, provides for the making of a claim for a pension and s 19 provides for the determination of claims and applications made. Section 19(5C)(a) requires the Commission to assess "the rate or rates at which the pension would have been payable from time to time during the assessment period". Section 19(9) provides a definition of the phrase "assessment period", being the "period starting on the application day and ending when the claim … is determined".

Alcohol Dependence

The second Question of Law raised in the Amended Notice of Appeal is directed to the conclusions reached by the Tribunal in respect to the incapacity claimed in respect to alcohol dependence.
Given the "findings" identified in Question 2.2, the Applicant submits that the Tribunal failed to correctly construe and apply s 120 of the Veterans' Entitlements Act to the Applicant's circumstances. In particular, it is submitted that the Tribunal's use of the expressions "we are satisfied" and its statement that "the weight of the evidence is … " failed to properly apply what Counsel for Mr Hogno submits is the "reasonable doubt test". It is also submitted that the Tribunal's statement that it was "not satisfied that Mr Hogno's alcohol dependence is war-caused" is a conclusion which "inverts the test the Tribunal is to apply".
The submissions are rejected.
In the present proceeding, the Tribunal stated at the outset of its statement of reasons the "standard of proof" to be applied and further stated it was "required to follow the steps set out in Repatriation Commission v Deledio …". It further expressly referred to s 120(1) and (3) of the Veterans' Entitlements Act: [2010] AATA 306 at [10] to [12].
It then referred to the relevant Statements of Principles, being No 1 of 2009 concerning Alcohol Dependence and Alcohol Abuse and No 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse which was in force at the time of the Commission's decision. Thereafter, the Tribunal set forth part of the evidence and the claims being made by Mr Hogno: [2010] AATA 306 at [40] to [44]. It was by reference to this material that the Tribunal reached its view that "the hypothesis raised in relation to Mr Hogno's anxiety disorder is reasonable": at [44]. The Tribunal also set forth an alternative basis upon which it considered that the hypothesis was reasonable: at [45]. It was this material which formed the basis for the hypothesis both in respect to the anxiety claim (at [46]) and the claim in respect to alcohol dependence (at [47]).
The Tribunal then proceeded to the next stage in its reasoning process - namely, whether it was satisfied beyond reasonable doubt that the claim in respect to alcohol dependence was war-caused. It stated its conclusion in this respect as follows: [51] Allowing that Mr Hogno suffers from alcohol dependence, for the reasons we have given in relation to his anxiety disorder, we are satisfied that a reasonable hypothesis is raised by the material before us connecting his alcohol dependence with his service. However, we are satisfied beyond reasonable doubt that this condition is not war-caused. [52] Mr Hogno concedes that he had a heavy drinking habit before he went to Malaya. We are satisfied that his drinking increased within a short time of arriving in Malaya when he effectively exchanged his beer intake for whiskey. We take into account that the alcohol questionnaire makes no reference to the accident (or any other stressor) as a reason for his increased drinking. Mr Hogno gave evidence that he drank more after the accident but the weight of the evidence is that he had already reached a level of drinking prior to the accident that he maintained on and off for many years. If his drinking did increase after the accident, we are satisfied that any increase was minimal and immaterial. [53] We are not satisfied that Mr Hogno's alcohol dependence is war-caused.
It is not considered that the manner in which the Tribunal has proceeded exposes any appellable error.
Paragraph [51] of the reasons for decision expressly makes clear that the Tribunal:

was satisfied that there was a "reasonable hypothesis … connecting [Mr Hogno's] alcohol dependence with his service" and also makes clear that the Tribunal was also:
"satisfied beyond reasonable doubt that this condition is not war-caused". To use the language of Brennan J in Bushell, the Tribunal set forth those facts which it considered "destroy[ed] the applicability of the reasonable hypothesis of causal connexion". Those facts were those set forth in paragraph [52] of its reasons, namely:
the alcohol questionnaire; and
Mr Hogno's evidence as to the amount of his alcohol consumption prior to going to Malaya. The findings made by the Tribunal were open to it on the evidence and open to be reached by the application of the correct standard of proof.

Rejected is a submission advanced on behalf of Mr Hogno that the statement of the Tribunal's state of satisfaction that alcohol dependence was not war-caused is but a mere statement of a "conclusion": Byrne at 632 to 633 per Buchanan J. But this particular submission perhaps matters little - it matters little whether paragraph [51] is a conclusion and paragraph [53] is a finding of fact. One way or the other, the Tribunal set forth its relevant finding. And, contrary to the conclusion reached by Buchanan J in Byrne, the Tribunal in the present case set forth (to use the language of Buchanan J) the "countervailing fact[s]" upon which it relied to "destroy" the hypothesis.
Also rejected is a further submission advanced on behalf of Mr Hogno that the manner in which the Tribunal expressed its findings in relation to those facts exposes the Tribunal as erroneously failing to apply the standard of proof of "beyond reasonable doubt". It may readily be accepted that the requirement as to a state of satisfaction beyond reasonable doubt "is an exacting standard": Hall v Repatriation Commission [2007] FCA 2021 at [19] per Gyles J. But the repeated references made by the Tribunal in the present proceeding to the standard of proof to be applied, it is concluded, precludes any inference that the Tribunal's reasons when properly read expose any failure to apply the correct test. To place emphasis (as Mr Hogno sought to do) upon particular expressions - such as "[w]e are satisfied" and "the weight of the evidence" - as implying the application of a mere civil standard of proof is to read such expressions divorced from the context in which they appear.
Finally rejected is the further submission that the Tribunal's reliance upon the questionnaire was an impermissible reliance upon an absence of evidence or reliable evidence as a basis upon which the hypothesis could be rejected. Reliance upon the decision in Tunks v Repatriation Commission [2008] FCA 521, 102 ALD 274 is, with respect, misplaced. Madgwick J there relevantly concluded: [46] While the reasons of the tribunal are to be read with due generosity, the language used here by it suggests inescapably that it approached its task incorrectly. The tribunal stated that it was "satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist" because there was "no evidence as to pre-war consumption and no reliable evidence as to the amount of post-war consumption". An absence of evidence or of reliable evidence cannot be a sufficient basis for the tribunal to reach the requisite level of satisfaction that either a fact asserted by a claimant is not true, or that a contrary fact is true. This proposition advanced by Madgwick J is accepted.
What is not accepted is the submission put on behalf of the Applicant that the questionnaire in the present proceeding is to be properly characterised as "no evidence". It was evidence as to the reasons previously advanced by Mr Hogno for a change in his alcohol consumption. The "alcohol questionnaire" to which the Tribunal refers was one completed by Mr Hogno in March 2001, being a date prior to the claim under consideration. The questionnaire in part asked a question in respect to when and how Mr Hogno's "habit" changed, to which the answer in part was "1965", and continued as follows: What was the reason for this? Posted to Malaya. Aust beer not available. Tropical climate - local beer was always warm. The inference drawn from this question and answer was made apparent by the Tribunal. The Tribunal placed emphasis upon the fact that in 2001 Mr Hogno did not provide as a "reason" for his change in alcohol consumption any of the factors now sought to be relied upon. This, together with the other evidence referred to by the Tribunal in paragraph [52] led it to conclude that the alcohol dependence was not war-caused. And the Tribunal separately stated the standard of proof being applied.

The Substantial Cause of Incapacity - Section 24(1)(c) and 24(2)

This third Ground of Appeal is directed to the conclusion of the Tribunal that the claim in respect to anxiety was war-caused but that Mr Hogno was not entitled to the special rate pension. The Question does not arise in respect to the claim in respect to alcohol dependence - if Mr Hogno had been successful in his submission as to the application of the correct standard of proof in respect to alcohol dependence, it would have been unnecessary to consider whether any further appellable error had been established; if he had been unsuccessful in respect to that submission, as he has been, any further consideration of s 24(1)(c) would not have arisen.
Subject to that observation, it may be noted that for the purposes of the present appeal and for the purposes of s 19(5C) and s 19(9) of the Veterans' Entitlements Act, the "assessment period" in issue started on 25 June 2004, being the day the application was lodged.
Section 24(1)(c) of the Veterans' Entitlements Act is confined in its terms to a veteran who is "prevented from continuing to undertake remunerative work". The prospect at least exists of a veteran who is not currently undertaking "remunerative work" but who wishes to do so but is unable to obtain "remunerative work". It is to this prospect that s 24(2) is directed. Section 24(1)(c) has at least two elements or "limbs", namely:

the war-caused incapacity preventing a veteran from continuing to undertake remunerative work by reason of the incapacity "alone"; and
the veteran, by reason of that incapacity, "suffering a loss of salary or wages, or of earnings on his or her own account". Section 24(2) is directed to both of these limbs of s 24(1)(c). In contemplation of a veteran who is not currently undertaking remunerative work, such that it could possibly be said that he is not thereby "prevented from continuing to undertake remunerative work" (Giesen v Repatriation Commission [2005] FCA 846 at [24], 87 ALD 347 at 354 per Gray J; Baljas v Repatriation Commission [2009] FCA 171 at [20] per Gray J), s 24(2)(b) sets forth those circumstances in which such a veteran "shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work". Section 24(2)(a) is directed to the other limb of s 24(1)(c), namely the prospect of a veteran "suffering a loss of salary or wages, or of earnings on his or her own account".

This construction of s 24(1)(c) and s 24(2) is that set forth by Nicholson J in Forbes v Repatriation Commission [2000] FCA 328 at [15], 101 FCR 50 at 52 to 53. It is a construction which has since been applied by other Judges of this Court: Magill v Repatriation Commission [2002] FCA 744 at [6] to [11] per Drummond J; Repatriation Commission v Van Heteren [2003] FCA 888 at [15], 75 ALD 703 at 707 per Finn J; Leane v Repatriation Commission [2003] FCA 889 at [7] to [8] per Finn J (on appeal, see: Leane v Repatriation Commission [2004] FCAFC 83, 81 ALD 625); Van Ewijk v Repatriation Commission [2004] FCA 17 at [14] per Stone J.
It is within that statutory context that the third Question of Law as framed in the Amended Notice of Appeal is directed to the application of s 24(2)(b) of the Veterans' Entitlements Act and asks whether "the Tribunal is required to consider section 24(2)(b) when determining whether a claimant is entitled to payment of disability pension under the Act at the Special Rate provided by section 24 of the Act". In support of that Ground of Appeal it is submitted on behalf of Mr Hogno that the Tribunal:

expressly referred to s 24(1)(c);
made some findings of fact but also failed to make others; and
failed "to properly consider and apply section 24". By way of example, the written submissions filed on behalf of the Applicant state in part as follows: At paragraph [66] the Tribunal makes a finding that addresses the reasons the applicant ceased work, but does not go on to consider, for the remainder of the assessment period, whether the applicant had attempted to find further work and the reasons for his inability to obtain it. The applicant submits that, in the circumstances of the application, to properly consider and apply section 24 required the Tribunal to do so. No submission was advanced which questioned the manner in which the Tribunal had construed the phrase "remunerative work" which is a phrase not confined "to a particular job with a particular employer" but a phrase which refers to "work generally": Banovich v Repatriation Commission (1986) 69 ALR 395 at 402 per Fisher, Beaumont and Wilcox JJ; Birtles v Repatriation Commission (1991) 33 FCR 290 at 294 to 295 per Hill J.

The principal conclusions of the Tribunal are relevantly as follows: [64] Section 24 (2) relevantly provides that, for the purposes of s 24(1)(c), a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both. [65] Mr Hogno had been engaged for many years in what might broadly be described as administrative work. He also had accountancy skills which he hoped to use. We accept that he found accounts payable work stressful and that there were other stressors at home and driving to work but they are the kind of stresses that lead many people to seek a change of lifestyle. The evidence is that he intended to keep working and to use those skills, but in a less stressful occupation. [66] We find that Mr Hogno did not cease to engage in remunerative employment because of his anxiety disorder alone. That a number of business possibilities did not eventuate was attributable to a range of factors other than his anxiety disorder. [67] We note, for completeness, that even if we are wrong about Mr Hogno's alcohol dependence and it is a war-caused condition, the evidence is that he had all but stopped drinking by the time he ceased employment. There is no evidence to suggest that alcohol played any part in the reason he ceased employment or has not worked since.
It may be accepted that the reasons and findings provided by the Tribunal are less than fulsome. But such reasons and findings as are provided by the Tribunal must necessarily be considered by reference to the conclusions previously reached and in the factual context presented to the Tribunal and the submissions in fact advanced for resolution.
The primary submission on behalf of the Respondent was that the reasoning of the Tribunal was in fact directed to s 24(1)(c) and s 24(2)(a), namely the finding that Mr Hogno was not able to satisfy the Tribunal that it was by reason of his incapacity in respect to anxiety alone that he was to be "taken to be suffering a loss of salary or wages". The finding of the Tribunal was that "Mr Hogno did not cease to engage in remunerative employment because of his anxiety disorder alone". That was a finding open to the Tribunal upon the evidence.
Having not been able to satisfy s 24(2)(a), according to the Respondent, it was thereafter unnecessary to consider s 24(2)(b). Any failure on the part of the Tribunal to address s 24(2)(b), upon this approach, was unnecessary to the ultimate conclusion reached. It was not put in issue on behalf of Mr Hogno that both "limbs" of s 24(1)(c) have to be satisfied if the section is to apply to a veteran: cf. Van Ewijk v Repatriation Commission [2004] FCA 17 at [15] per Stone J.
That submission of the Respondent is accepted. In paragraphs [64] to [67] of its reasons for decision the Tribunal addressed and resolved why Mr Hogno did not fall within s 24(1)(c) and s 24(2)(a). It was not there addressing or resolving s 24(2)(b) - but there was no need for it to do so.

the evidence fell short of establishing that Mr Hogno was "genuinely seeking to engage in remunerative work"; and that
there was no evidence to show that "incapacity was the substantial cause of his inability to obtain remunerative work in which to engage". Care must obviously be taken by this Court when entertaining an appeal from the Tribunal to not itself review the evidence available to the Tribunal and to not itself consider whether findings of fact were open to the Tribunal to be made - even though not made. It is s 43(2B) of the Administrative Appeals Tribunal Act which entrusts to the Tribunal - and not this Court - the task of providing in writing a statement of reasons that "include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based". Subject to s 44(7) of the same Act, it is not the task of this Court, on appeal, to itself make findings of fact which may support an alternative basis upon which the Tribunal may have reached the same conclusion. Where a factual issue has not been fully explored before the Tribunal, care must be exercised before this Court invokes the power conferred by s 44(7) to make additional findings of fact: See Inco Ships Pty Ltd v Finlay Murdoch Hardman [2007] FCA 1138, 167 FCR 294. Mansfield J there observed: [71] … As its contentions indicate, there was some medical evidence considering the relationship between the degenerative conditions of the respondent's right knee and his left knee. The issue was not fully explored because, in the particular circumstances, it was not a matter upon which the Tribunal was required to make, or made, a finding favourable to the contention of the applicant. It merely found that the respondent had a degenerative condition of his left knee which had been aggravated by his employment with the applicant, leading to incapacity for work. That state of the evidence does not enable me to make any finding on the issue, as potentially authorised by s 44(7) of the Administrative Appeals Tribunal Act 1975 (Cth). The jurisdiction relevantly entrusted to this Court is to resolve the questions of law that arise in respect to the decision under appeal; the jurisdiction to make findings of fact is, subject to s 44(7), a jurisdiction entrusted to the Tribunal.

Any findings of fact as to whether Mr Hogno was "genuinely seeking to engage in remunerative work" or whether it was his incapacity by reason of his anxiety which was "the substantial cause of his … inability to obtain remunerative work in which to engage" was of course, on the primary way in which the Respondent advanced this part of its case, not "material" to the conclusion reached by the Tribunal.
Subject to those qualifications, reservation is nevertheless expressed as to whether the Respondent was correct in submitting that the evidence fell short of Mr Hogno not genuinely seeking employment. The Full Court in Leane v Repatriation Commission [2004] FCAFC 83, 81 ALD 625 said of this expression: [28] The primary judge interpreted the word 'seeking' to mean 'attempting to' or 'trying to'. This may be accepted. Such a meaning involves something more than a mere wish or hope. It requires that a claimant 'do' something. On the other hand the word 'genuinely' is used in the sense of 'sincerely' or 'honestly'. It involves an assessment of the subjective intention or purpose of a claimant. What is required is that the claimant honestly be trying to engage in remunerative work. It may be questioned whether it was open to the Respondent to the present appeal to contend that Mr Hogno had not "done something". But there is less reservation in respect to accepting the submission that there was no evidence to show that it was Mr Hogno's incapacity that was the "substantial cause" of his inability to obtain remunerative work for the purposes of s 24(2)(b). It was Mr Hogno's own evidence that the inability to obtain remunerative work was essentially due to the fact that "[t]here wasn't all that much work on offer". But, just as it was unnecessary for the Tribunal to have made any such finding, it is equally unnecessary in the present appeal for this Court to make any finding of fact as to what was the "substantial cause" of Mr Hogno's inability to obtain remunerative work. Nor was the making of such a finding expressly sought by Counsel on behalf of the Respondent.
Given such evidence, it is perhaps not surprising that there was but scant reference to s 24(2)(b) in the submissions advanced to the Tribunal by the Applicant for resolution. The limited submissions as were then advanced were directed to whether Mr Hogno had genuinely sought employment; no submission (or no substantial submission) it would appear was directed to whether any incapacity was "the substantial cause" of his inability to engage in remunerative work. It is difficult to conclude that any question of law for the purposes of s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) arises where the Tribunal does not resolve a submission which was not advanced and where any such submission would seem to be not open to be advanced on the evidence available.

Conclusions

The appeal is to be dismissed. No Ground of Appeal has been made out.
Both parties were in agreement that costs should follow the event. Accordingly, it is concluded that Mr Hogno should pay the costs of the Respondent.

ORDERS

The Orders of the Court are:
The Amended Notice of Appeal as filed on 13 July 2010 is dismissed.
The Applicant is to pay the costs of the Respondent. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

At a glance

Court

Decision date

Before

Source

Judgment (16 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (32)