Hunter v Repatriation Commission

Federal Court of Australia|2010-02-25|Before: Perram J

REASONS FOR JUDGMENT 1 This is an appeal from the Administrative Appeals Tribunal. The Applicant on this appeal, Mr Hunter, served in the Royal Australian Navy between 26 May 1958 and 25 May 1979. Since 2000 he has made a number of claims as a veteran for disability pension entitlements with the Repatriation Commission. Some, but not all, of those claims have been successful. 2 In this Court only a claim based on post traumatic stress disorder ("PTSD") remains material. The Tribunal accepted that Mr Hunter suffered from PTSD but concluded that it was not related to the episodes of his naval service upon which he relied. 3 Only two of those episodes are now relevant. Both occurred during 1965 and 1966 when Mr Hunter was serving on board the minesweeper HMAS Teal in waters adjacent to Malaysia, Brunei and Singapore during the confrontation which took place between Indonesia and Malaysia at that time. The first episode related to these circumstances surrounding patrolling at night; the second to damage inflicted upon another vessel, the HMS Woolaston, by a sampan which contained a bomb. 4 Implicit in Mr Hunter's application relating to these episodes was the hypothesis that his PTSD was caused by one or both of them. The question of whether a particular disease or injury is war service related is one upon which medical minds frequently differ, often reasonably. To establish a uniform approach to such questions, and thereby to guarantee consistency of outcome between veterans, the Veterans' Entitlements Act 1986 (Cth) ("the Act") authorises, under s 196B, the creation of Statements of Principle ("SoP") which are to lay down in a way easily applicable by administrative decision-makers principles for establishing acceptable hypotheses of causation. The Tribunal was bound by s 120(3) of the Act to determine whether the hypothesis that Mr Hunter's PTSD was related to the two episodes was a reasonable one. Consistently, s 120A(3) required an affirmative answer to that question only if the hypothesis was "upheld" by an SoP for the relevant disease or injury. 5 The SoPs are issued by the Repatriation Medical Authority, relate to many conditions and are changed not infrequently to reflect advances in medical understanding. The Tribunal determined that Mr Hunter's hypothesis were not upheld by the SoP applicable to PTSD at the time of the hearing before it, a conclusion from which Mr Hunter does not now demur. 6 However, a veteran whose hypothesis of causation is not upheld by a reviewing tribunal under an SoPs applicable at the hearing before it has an accrued right to have his or her position considered under any earlier SoP that was applied by the Repatriation Commission in its original decision: Repatriation Commission v Gorton (2001) 110 FCR 321 at 331-332 [42]-[43] per Heerey J, 333 [50] per Emmett J and 335-336 [62] per Allsop J. 7 As required by that principle the Tribunal, therefore, considered Mr Hunter's hypothesis against the earlier SoP which had been applied by the Repatriation Commission. That SoP was entitled "Revocation and Determination of Statement of Principles concerning Post Traumatic Stress Disorder" which more formally described was Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999. Since it is only this SoP which is the subject of controversy in the present proceedings I shall refer to it as "the SoP". 8 The Tribunal determined that Mr Hunter's hypothesis was not upheld by this SoP either. Consequently, it dismissed his claim in so far as it related to PTSD. It made a finding about alcoholism which has no present relevance but to which it will, when dealing with the Repatriation Commission's cross-appeal, be necessary briefly to return. For the purpose of the substantive issues on the appeal itself, however, it may safely be put to one side. 9 Mr Hunter's appeal nominates the following question of law for consideration: Did the Tribunal err in its interpretation of the Statement of Principles concerning Post Traumatic Stress Disorder, Instrument No 3 of 1998 [sic] as amended by No 54 of 1999, by failing to pose and answer the correct question in dealing with the Applicant's hypothesis that he experienced a severe stressor during his operational service on HMAS Teal? 10 Mr Hunter agitates that that question should be answered "yes" for three reasons which it is convenient to deal with in turn.

Ground One 11 The Tribunal concluded that the material advanced on Mr Hunter's behalf did not support the existence of a hypothesis of causation that was supported by the SoP. The relevant portions of the SoP were clauses 3, 4 and 5 which were in these terms: Basis for determining the factors 3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that post traumatic stress disorder and death from post traumatic stress disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces. Factors that must be related to service 4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person. Factors 5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorderwith the circumstances of a person's relevant service are: (a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or (b) experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or (c) inability to obtain appropriate clinical management for post traumatic stress disorder . 12 The process being undertaken by the Tribunal at this point was what has come to be referred to as the third stage of the Deledio process (a reference to Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 per Beaumont, Hill and O'Connor JJ) which is a convenient, although not entirely accurate, gloss on the Act. The stages describe the steps which a decision-maker should take in dealing with a veteran's claim. The third step was explained by the Full Court in these terms: 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. 13 The task at hand, therefore, is the testing of a hypothesis and not the examination of the correctness or otherwise of the premises upon which the hypothesis may rest. Consequently, the Tribunal is not to determine whether the material before it establishes the premises in question; rather it is to determine whether the material before it "points to some fact or facts ("the raised facts") which support the hypothesis" (Bushell v Repatriation Commission (1992) 175 CLR 408 at 414 per Mason CJ, Deane and McHugh JJ) which is another way of saying that "the material before the Commission must raise some fact or facts which give rise to the hypothesis" (Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569 per Mason CJ, Gaudron and McHugh JJ). A corollary of those principles is that in this third stage, proof of the facts is not required nor, correspondingly, is the Tribunal called upon to make findings of fact. 14 The Tribunal's account of the material before it - concerning the first episode nominated by Mr Hunter patrolling under the cover darkness - is brief and is couched in these terms: EVIDENCE 9. Mr Hunter in a written statement dated 9 August 2000 to a previous hearing (2T T13 P89) detailed the following circumstances in relation to his service on HMAS Teal: · That on taking over as the relief crew they were informed by the outgoing crew that they were fired upon by a sampan. That crew's account of the incident was that "a hail of two thousand rounds had been fired by Teal killing the nine infiltrators on board. Lieutenant Murray was awarded the DSC for this action. We were under no misapprehension as to how dangerous and serious our job was to be". · That "each approach was made during darkness steaming slowly, quietly and in darken ship conditions. The atmosphere was extremely tense and frightening…. Only when the star shell was fired could you know whether you had a target or only debris on the water, which had given the radar contact". 15 Its analysis of this material was thus: We consider that the general circumstances of their patrolling activities at night-time did not point to Mr Hunter experiencing a traumatic event as defined above nor does the material point to Mr Hunter's response being other than one of being extremely tense and frightening. There is no material pointing to such circumstances as creating a category 1A or 1B stressor such as a life-threatening event. (The reference to category 1A and 1B stressors is to the later SoP applicable at the time of the hearing before the Tribunal and is not itself directly material to the present appeal). 16 In light of the nature of the third stage these statements are not to be taken as findings of fact. There was, as Mr Hunter correctly submitted on the appeal, other material before the Tribunal on the same topic to which the Tribunal did not refer. Mr Hunter gave a consultant psychiatrist, Dr Dinnen, an account of the night time patrolling which the doctor recorded in these terms: During his service on the Teal there were at least three specific incidents which he described to me. The first was during the first two months of training. He would be on the upper deck, lying in the dark. They were on patrol, on approach stations. Their radar was very sensitive and would pick up objects. They would fire flares to see what had been detected by the radar. That occurred on three occasions but each time there was nothing there. After that he was serving below deck as a senior sparks (communications officer). 17 So too, another statement by Mr Hunter of 9 August 2000 recorded: 1. When we were taking over from the first crew of HMAS Teal we were informed by them that they had been fired upon by a Sampan. Their account of the incident was that a hail of two thousand rounds had been fired by Teal killing the nine infiltrators/saboteurs on board. Lieutenant Murray was awarded the DSC for this action. We were under no misapprehension as to how dangerous and serious our job was to be. 2. Each approach was made during darkness steaming slowly, quietly and in darken ship conditions. The atmosphere was extremely tense and frightening. At any moment something out in the darkness could open fire. Only when the star shell was fired could you now [sic] whether you had a target or only debris on the water which had given the radar contact. 18 Before the Tribunal Mr Hunter was examined about those matters and gave this additional evidence: --- are you talking generally? --- Every time radar picked up a contact and we didn't - couldn't ascertain quickly what it was, we would go to approach stations and we would be closed up and they would fire a star shell and it wouldn't be until the star shell lit the area that we would know what we were up against, whether it was debris in the water or - or - or was in actual fact a contact. 19 Mr Hunter's submission was that this material pointed to him having experienced an "extreme stressor" within the meaning of clause 5 of the SoP (supra) which was itself defined in cl 8 (as amended) thus: "'experiencing a severe stressor' means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or other person's, physical integrity. In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include: (i) threat of serious injury or death; or (ii) engagement with the enemy; or (iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;". 20 That definition would be satisfied if, inter alia, there was material before the Tribunal suggesting that Mr Hunter had been confronted with "an event or events that involved threat or death or serious injury, to the person or another person's physical integrity". In Stoddart v Repatriation Commission (2003) 197 ALR 283 Mansfield J (at 296 [55]) said that a threat could be made out if the event "said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is are subjectively experienced) the risk of death or serious injury or to physical integrity." 21 Consequently, so it was submitted, the material before the Tribunal unequivocally pointed both to an event which was objectively capable of conveying a threat of death or serious injury and which, in fact, did so. 22 The Repatriation Commission put emphasis upon the wording of the Tribunal's decision. As events transpired the Tribunal did its principal analysis of Mr Hunter's claims by reference to the more recent SoP concerned with PTSD. That statement required the presence of a category 1A or 1B stressor which were defined in a materially different way to the SoP with which the present appeal is concerned. It is not necessary to set out in full that SoP. It suffices instead to observe that the later SoP required the claimant to have come, in effect, face to face with some species of peril. The earlier SoP could be satisfied if a claimant were "confronted" with a peril which this Court has held includes being confronted "in the mind": Woodward v Repatriation Commission (2003) 131 FCR 473 at 495 [123] per Black CJ, Weinberg and Selway JJ. Consequently, the two SoP's significantly differed in that physical confrontation was required under one but not the other. 23 I have already set out the Tribunal's reasons for finding that there was no category 1A or 1B stressor above at paragraph 15. It is to be noted that the analysis required under the later SoP had not required the Tribunal to consider - and it had not considered -whether Mr Hunter had been confronted with a threat "in the mind". The Tribunal's reasoning on the earlier SoP was as follows: 115. We do not intend to repeat the analyses made in relation to the later (ie, current) SoPs as the analysis relating to "experiencing a life-threatening event" and an analysis concerning "experiencing a severe stressor" lead to a similar outcome in this matter. 24 The Repatriation Commission's submissions about this was that it was "a succinct statement by the Tribunal that there was no material pointing to the applicant [Mr Hunter] having experienced a severe stressor [within the meaning of the SoP]". 25 Brevity is a virtue to be extolled and succinctness even more. However, this reasoning is not succinct; rather, it is absent. The material before the Tribunal clearly was capable of sustaining a potential finding that constituted a threat of the kind referred to in Stoddert and Woodward or, even, just as a matter of common sense. The material included the following matters: (a) the crew who had been relieved by the crew of which Mr Hunter was a member had reported that they had been fired upon by a sampan; (b) each time the HMAS Teal picked up a contact on the radar and could not readily identify it, it would approach under the cover of darkness. Only when a star flare was fired was it known whether it was debris or a contact; (c) Mr Hunter was up on deck initially but was later below deck. The atmosphere whilst this was going on was tense and frightening. 26 The circumstances in (a) and (b) are clearly capable of sustaining a view that Mr Hunter was confronted with a threat to his person in the Woodward sense - the previous crew before reported that they had in fact been fired on; they were proceeding in darkness to examine contacts which might very well be the same thing. Objects were then found which might have been contacts (which might have fired) and approached in darkness (to avoid that very risk). Nor is it possible to say that that material is not capable of supporting the inference that Mr Hunter did not himself have a subjective state of fear. 27 I do not read paragraph 115 of the reasons of the Tribunal as implicitly considering some or indeed any of this material and explaining it away. To the contrary, the most plausible explanation of the Tribunal's failure either to refer to the significant differences between the earlier and the later SoP or to refer to any of the material made relevant by those differences is that the Tribunal overlooked the fact that there were differences and did not, in substance, turn its mind to the requirements of the earlier SoP. The Repatriation Commission submitted that such a conclusion would be contrary to the "clear statement" at paragraph 115 regarding the SoP. What, however, is clear from paragraph [115] is the Tribunal's overlooking of the differences between the two relevant SoPs. 28 The Repatriation Commission also submitted that to accept the argument would be to fly in the face of the established need to avoid the overly fastidious reading of the decisions of administrative decision makers: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey McHugh and Gummow JJ. However, that principle has its limits. To my mind the most plausible explanation for the Tribunal's failure to refer to the significant differences between the current SoP and its predecessor or to refer to any of the material made relevant by those differences is, as I have already indicated, the fact that the Tribunal overlooked the matter. In any event, the question which arises is whether the material which was before the Tribunal could sustain inferences in favour of Mr Hunter. Contrary to the submission of the Repatriation Commission, that issue is not to be viewed as a determination of a matter of fact. The question of whether the material before the Tribunal was capable of sustaining a particular factual conclusion is itself is a question of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 per Mason CJ, 365 per Brennan J, 369 per Deane J and 387 per Toohey and Gaudron JJ; Fisse v Secretary, Department of the Treasury (2009) 253 ALR 11 at 23 [46] per Buchanan J. Thus, quite apart from the error in treating the requirements of the two SoPs as the same it is, independently, possible to say that the Tribunal erred in law by failing to appreciate the inferences which could be drawn from the material which was before it.

Ground Two 29 Mr Hunter's second ground of appeal concerned an event which took place on board another vessel, the HMS Woolaston. The material before the Tribunal suggested that HMS Woolaston was the same class of minesweeper as HMAS Teal and was involved in identical operations. The material suggested that it had encountered infiltrators on a sampan which had been brought along side, that its occupants had been brought on board the HMS Woolaston, that a sub-lieutenant had boarded the sampan and had reported a box with yellow wires protruding from it and that he had immediately been ordered off the sampan. More distressingly, the material also indicated that before he could alight the sampan it had exploded, killing him and blowing off the side of the HMS Woolaston. 30 The Tribunal's reasoning on this topic was thus: We consider that the material relating to HMS Woolaston incident points to an event in which Mr Hunter was confronted with, but not as an eyewitness to, an event involving actual death. The material points to Mr Hunter experiencing the deepest apprehension, with the incident reinforcing the importance and seriousness of their situation. In such circumstances, the material does not point to Mr Hunter being exposed to a traumatic event or to experiencing a life-threatening event of the kind defined as a category 1A or 1B stressor. 31 Mr Hunter submitted that the Tribunal had found that this was an event involving actual death and that he had been confronted by it. This was said explicitly to fall within the definition of "experience extreme stressor" in the SoP (as amended) in that he had been "confronted with an event … that involved actual … death". 32 The meaning of "confronted" has already been noted. 33 The Tribunal did not advert to the terms of the earlier SoP because, as already explained, it dealt with its implications in an omnibus way without any reference to its terms. 34 The Repatriation Commission submitted that Mr Hunter's argument was an invitation to disagree with the Tribunal's factual finding at [115]. However, there was no fact finding at this level which was, after all, only the third stage of the Deledio analysis. The question was whether material existed which had a particular quality. It is quite obvious, I think, that the Tribunal did not consider any of the material dealing with "confrontation" with an actual death because it assumed, erroneously, that the requirements of the earlier SoP were the same as those of the later SoP. 35 In any event, the question of whether the material was capable of sustaining a particular conclusion is a question of law and not a question of fact. In that circumstance, [115] of the Tribunal's reasons cannot be a factual determination.

Ground Three 36 I turn then to the third issue. As it has already been pointed out, the third stage of the Deledio process is concerned with the testing of the hypothesis against the standard set out in the SoP for the relevant condition (if there be one). To test a hypothesis it is, therefore, necessary first to identify the disease or injury suffered by the veteran and then to determine whether there is an SoP which applies to it. As has already been noted, there is no testing of the facts put forth by the veteran at this level; instead, the question asked is whether the material before the Tribunal taken all together is capable of supporting a particular hypothesis. Controversy exists in this Court as to whether the same approach should be taken to the question of diagnosis itself. Put another way, is the Commission (or the Tribunal) simply to accept, for third stage purposes, the fact of a diagnosis of a condition or is it, instead, to examine whether the diagnosis is itself sound. 37 In Repatriation Commission v Warren (2008) 167 FCR 511 Lindgren and Bennett JJ were of the view that the disease as diagnosed had to satisfy the relevant SoP (at 518 [24], 521 [38]). Logan J reached the opposite conclusion (534 [101] - 535 [108]). The trial judge, Kiefel J, was of the same view as Logan J. 38 In this case the Tribunal said that it was required to ascertain whether the material pointed to the diagnostic criteria in the later SoP. One is left to assume from [115] that it took the same course with the earlier SoP. Mr Hunter says this was an error, that the approach of Kiefel and Logan JJ is the correct one and that the judgment of Lindgren and Bennett JJ on this question is wrong. 39 It is not necessary to resolve that question, however, because the only reading of the Tribunal's reasons on this issue is that it concluded in Mr Hunter's favour that he did suffer from PTSD. Thus, even assuming this question should not have been posed, it has no impact on the outcome since it was answered in Mr Hunter's favour. 40 Mr Hunter submitted, in relation to the events on the HMS Woolaston, that the Court should make orders disposing of the matter on the basis that Mr Hunter's account of the events in question was accepted. I do not agree. The Tribunal erred in failing to observe that the material before it was capable of supporting a finding that Mr Hunter suffered an extreme stressor. Whether, however, it is to be concluded that Mr Hunter did, in fact, suffer such a stressor is a function of a number of matters which I am in no position to assess. For example, the Tribunal may decline to accept his evidence about the occurrence of the incident at all. This is not a hypothetical possibility, for the Tribunal, in fact, rejected Mr Hunter's account of another incident involving an Indonesian vessel. To determine matters of that kind it would be necessary to determine issues of credit which I am in no position to do. 41 In the event, Mr Hunter is entitled to succeed on his appeal.

Cross Appeal 42 It remains to deal with the Repatriation Commission's amended cross-appeal by which it sought to disturb a finding by the Tribunal that Mr Hunter's alcohol dependence (which was said to be in remission) was war related. Mr Hunter accepted that the cross-appeal should be allowed. His concession was, in my opinion, properly made. In reaching the conclusion that it did, the Tribunal relied upon an earlier finding by an earlier Tribunal about the existence of an anxiety disorder at the time that Mr Hunter completed his service on the HMAS Teal. However, that conclusion was based upon a finding that a particular encounter with an Indonesian vessel had occurred. The present Tribunal found, as a fact, that the incident with the Indonesian vessel did not occur and rejected Mr Hunter's evidence that it did. It was unsustainable, therefore, to rely upon the earlier Tribunal's conclusions about the existence an anxiety disorder when they were based upon finding of fact which were inconsistent with the present Tribunal's findings. The Tribunal should have determined the matter for itself. 43 The parties are to bring in short minutes of order giving effect to these reasons within 21 days or, if an agreement cannot be reached, competing orders within the same timeframe. My present view is that Mr Hunter is entitled to his costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

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