The approach of the AAT
20 The AAT considered the medical evidence going to each of the contentions of Mr Jakab against the background of the correct test determined by the legislation as discussed previously and the authorities (Repatriation Commission v Wedekind [2000] FCA 649; Lees v Repatriation Commission [2002] FCAFC 398 and a decision of the Tribunal, Re O'Brien and Repatriation Commission [2003] AATA 525).
21 The AAT found that a constellation of symptoms, that is, manifest effects of Meniere's Disease, must be present before a conclusion can be reached that clinical onset of the disease has occurred. The AAT considered what it described as Mr Jakab's lengthy history of symptoms the subject of his evidence before the Tribunal and concluded that the failure on the part of the medical practitioners to record important aspects of the symptoms identified by Mr Jakab, in their reports, was not simply a function of those doctors failing to ask the relevant questions of Mr Jakab that would have revealed the detailed sequence of clinical effects symptomatic of Meniere's Disease but rather that Mr Jakab did not manifest all the necessary symptoms (the constellation of symptoms) that, manifest upon presentation now, would enable a diagnosis of Meniere's Disease to be made [36], [37].
22 That finding was open to the Tribunal on the evidence. In reaching that conclusion, the Tribunal considered the background factual contentions; Mr Jakab's evidence; the report of Dr Robert J Hall, Neurologist dated 5 July 1995; the report of Dr P Baratosy dated 21 October 1998; the report of Dr M A Menzies, Ear, Nose and Throat Surgeon, dated 27 April 2000; the report of Dr S M Hamwood dated 31 May 2000. In each of these reports, the authors of the report record and give emphasis to symptoms emergent after the end of the period of Mr Jakab's service. For example, reference is made to the acute attack of Meniere's Disease in 1995 (Dr Hall); the consequences of the stroke; the period of pressure disturbance in the right ear reported to Dr Hall in the previous 12 month period prior to the report of 5 July 1995; a five year history of right‑sided Meniere's Disease reported to Dr Menzies and Dr Hamwood's observation that Meniere's Disease emerged some two years after a stroke as a secondary consequence to cerebral ischaemia in 1990.
23 No particular emphasis was reported by Mr Jakab to these doctors concerning his symptoms in 1979 or 1980, in the discussions each of them had with Mr Jakab.
24 The AAT also had regard to the reports of Professor Gibson, a Professor of Otolaryngology. Professor Gibson concludes that the cause of Meniere's Disease is multi‑factorial; is thought to be linked to viral infection; seems to have a demonstrated connection with a genetic disposition in sufferers to the disease; and although Mr Jakab contracted viral pericarditis during service, no connection exists in Professor Gibson's view between the viral pericarditis suffered by the applicant and the onset of Meniere's Disease, on the footing that Mr Jakab did not report symptoms which suggested a penetration of the virus to the inner ear so as to compromise the functioning of the ear and thus contribute to Meniere's Disease. Professor Gibson did not accept that any connection existed between any allergic reaction suffered by Mr Jakab in 1979 and the onset of the disease.
25 The AAT also had regard to the report and evidence of Dr F Anning (report dated 8 March 2005), Ear, Nose and Throat Specialist. Dr Anning observed that Meniere's Disease presents as an acute episode that is totally incapacitating just as the episode experienced by the applicant in 1995. Dr Anning gave evidence that the disease is very difficult to diagnose; is unpredictable; can return after a lengthy period when the individual has been symptom‑free; the probable onset of the applicant's Meniere's Disease was in 1995; and could not have been diagnosed earlier nor treated earlier. The AAT considered Dr Anning's evidence in relation to an audiology report dated 10 February 1981 which showed that the applicant had no significant hearing loss. Dr Anning noted, however, that the test adopted produces variable subjective results. Dr Anning noted that hearing loss typical of Meniere's Disease is manifest in low tones whereas Mr Jakab's results in 1981 showed minor loss in the high tonic range.
26 Having considered all of the medical reports and evidence, the Tribunal reached these conclusions:
'38. The Tribunal accepts the evidence of Professor Gibson and Dr Anning that there was no connection between Meniere's Disease and viral episodes or with an allergic reaction during service. The Tribunal also accepts Dr Anning's evidence that dizziness is a non‑specific symptom that can be explained by a number of medical conditions, and in the applicant's case was better explained by the medical conditions identified at the time. The Tribunal accepts Dr Anning's evidence that the hearing loss recorded in 1981 was not related to the development of Meniere's Disease.
39. In applying the evidence in regard to the applicant's circumstances to the test set out by Kenny J in Wedekind, and applied by the Tribunal in O'Brien, the Tribunal is reasonably satisfied that the applicant did not have the constellation of symptoms of Meniere's Disease during his service. Being so satisfied there is no need for the Tribunal to proceed to consider issues relating to clinical management of Meniere's Disease. For the claim to succeed, it is necessary for Meniere's Disease to be present before the end of service: O'Brien. For the reasons given above, the Tribunal is reasonably satisfied that the condition was not present during service. Therefore, the evidence, taken overall, does not point to factor 4 of the SoP for Meniere's Disease being met (or the equivalent factor 5 in the earlier SoP) and the claim must fail.'
27 These findings are both consistent with the medical evidence reviewed by the Tribunal and open to the Tribunal. Although some features associated with or consistent with Meniere's Disease were reported by Mr Jakab to the medical officers from time to time, during the period of Mr Jakab's service, the AAT has relied upon the body of medical evidence so as to find that the necessary collection of symptoms were not present; those symptoms which were consistent with Meniere's Disease were explained by the medical conditions at the time; and that no connection was demonstrated between Meniere's Disease and the viral episodes relied upon by Mr Jakab. Accordingly, Mr Jakab failed to establish that he suffered or contracted a disease during a period of defence service or prior to the last period of that service and that the disease was contributed to in a material degree or was aggravated by defence service.
28 In conducting an analysis of the factual matters, the AAT applied the correct statutory tests, addressed the correct questions and acted according to law. The factual findings made were open to the Tribunal.
29 Mr Jakab further contends that in conducting an analysis of the facts and applying the legal tests, the AAT failed to have proper regard to the discharge by Mr Jakab of the standard of proof and failed to properly apply the statutory considerations arising out of s 119(1)(h).
30 That provision is in these terms.
'(h) Without limiting the generality of the foregoing, [the decision‑maker] shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence has happened during the service of a veteran, or a member of the Defence Force or of a Peacekeeping Force, as defence by subsection 68(1) was not reported to the appropriate authorities.'
31 The paragraph of the reasons of the AAT relied upon by Mr Jakab is this:
'37. The applicant now recalls symptoms during his service, however the Tribunal agrees with Dr Anning that memory can be unreliable when reporting symptoms that occurred a long time ago. No medical practitioner had taken a history from the applicant where he refers to the lengthy history of symptoms occurring during defence service as he now states was present. The Tribunal does not accept, as the applicant asks be accepted, that this was simply the result of doctors not asking him questions about his earlier experience of symptoms. The Tribunal does not accept that the applicant had all the necessary symptoms during his service that would allow a diagnosis now of Meniere's Disease during service.'
32 Mr Jakab says that these observations of the Tribunal miss the point. Mr Jakab says that he has a clear recollection of his symptoms during service; the symptoms were unpleasant and severe and thus made an enduring impression upon him and that his memory is not unreliable as to the symptoms even though they occurred a long time ago. Mr Jakab's contention based upon s 119(1)(h) seems to be that even if the AAT took the view that Mr Jakab's memory may have been unreliable as to any aspect of the symptoms, it could nevertheless have relied upon s 119(1)(h) as a basis for reaching a conclusion that Mr Jakab suffered symptoms emblematic of Meniere's Disease and thus discharged the onus of establishing the onset of Meniere's Disease during service. Accordingly, Mr Jakab says that the AAT ought not to have given weight and emphasis to the relatively short history of symptoms recorded by the medical practitioners in their reports. In addition, Mr Jakab says that if the AAT was undecided as to the role or accuracy of Mr Jakab's memory of the events, it failed to give weight to the 'effects of the passage of time' as required by s 119(1)(h) of the V E Act.
33 There are a number of things to say about this contention.
34 First, Mr Jakab had access to the outpatient medical records which contain a record of the complaints he made to the medical officers at the time evidencing the symptoms apparent to the medical officers at the time.
35 Secondly, as to other complaints of symptoms, Mr Jakab gave detailed evidence of his recollection of the symptoms, the severity of the symptoms and the combination of symptoms which he said demonstrated the onset of Meniere's Disease. Accordingly, this is not a case where Mr Jakab has poor recollection and was not able to obtain documents in support of his contentions. Accordingly, Mr Jakab was not presented with any identified 'difficulties' concerning any identified fact, matter or circumstance attributable to the effects of the passage of time.
36 Thirdly, s 119 of the V E Act instructs the Repatriation Commission (and in consequence the AAT in conducting a review) that the decision‑maker is not bound to act in a formal manner and is not bound by formal rules of evidence. The decision‑maker may inform himself or herself on any matter in such manner as the decision‑maker thinks just (s 119(1)(f)). However, a provision such as s 119(1)(h) does not make out a case by enabling the decision‑maker to reach a finding not supported by the evidence. In this case, the medical evidence did not support the proposition that the necessary conjunction of symptoms were present in order to lead the decision‑maker to a proper conclusion that Mr Jakab had contracted the disease at the relevant time.
37 Fourthly, Mr Jakab was able to articulate to the medical practitioners and to the Tribunal his precise recollection of the collection of symptoms he says he suffered at the various dates. Mr Jakab was also able to place the history of those symptoms in a proper chronology by reference to the relevant documents. Mr Jakab was in a position to engage with the medical practitioners, both general practitioners and medical practitioners experienced in the disciplines relevant to the disease and discuss the extent of the symptoms and their onset. It is clear from the reasoning of the Tribunal, that the AAT had regard to the engagement between Mr Jakab and the medical practitioners, the chronology of the symptoms recounted by Mr Jakab to the medical practitioners and the weight and emphasis to be given to the chronology of clinical events in making findings as to the onset of the disease. It is clear therefore that the Tribunal had regard to and took account of the effects of the passage of time.
38 Fifthly, the fundamental criticism Mr Jakab makes of the AAT is that it preferred a view of the evidence which led it to find an onset of symptoms and thus the contraction of Meniere's Disease at a much later date than Mr Jakab contends for. The AAT reached that conclusion in part in reliance upon matters going to recollection. In other words, the AAT was simply not satisfied as to the contended primary facts that symptoms of Meniere's Disease were manifest during the period of service, on all the evidence. Mr Jakab did not fail to establish his contention because of the effects of the passage of time with the result that the AAT ought to have called in aid s 119(1)(h) of the V E Act. Mr Jakab failed in discharging the standard of proof because the weight of evidence, in the view of the AAT, was inconsistent with a conclusion that the necessary symptoms of Meniere's Disease were present during the period of service. That conclusion was open to the AAT.
39 Importantly, the section does not operate so as to strengthen the case or a contention of an applicant by lowering the threshold or standard of proof required by s 120 of the V E Act for establishing the clinical onset of the effects of Meniere's Disease especially in circumstances where the applicant contends for a demonstrated good recollection of each facet of the symptoms suffered over the period under examination. An appeal is not simply a process by which an alternative view of the evidence might be established. This is not a case where there is no evidence to support the conclusions of the AAT and no error of law is demonstrated.
40 The applicant has raised two further matters.
41 The first is a subset of the matters previously discussed, namely, that the reference to the term 'constellation of symptoms' is inappropriate as there is, in truth, a 'trilogy of symptoms' defining Meniere's Disease and the applicant contends that each of those symptoms were present during the period of his service. The AAT identified on the medical evidence before it the symptoms required to be present in order to accept the presence of Meniere's Disease during the period of service. The Tribunal reached the findings reflected in paragraphs [36], [37], [38] and [39] and those findings were open to it.
42 The third and final ground is that the Tribunal acted selectively in evaluating and relying upon the evidence and that the applicant ought to have been sent for further testing of his hearing loss. This contention does not raise any question of law for resolution nor does it identify any error of law. The role of the Tribunal was to consider the evidence before it in the context of the review of the primary application. The AAT properly conducted the review function.
43 Accordingly, the appeal by Mr Stefan Jakab by way of an application pursuant to s 44(1) of the AAT must be dismissed.
44 Since I have not heard Mr Jakab on the question of costs, I propose to reserve the resolution of the question of costs and make the following directions. Mr Jakab is to file and serve by 4.00pm, Tuesday, 19 June 2007 any comments by letter or submissions he wishes to make as to whether an order ought to be made that he pay the costs of the respondent of and incidental to the appeal. The respondent is to file and serve within seven days thereafter, any submissions in relation to the question of the costs of and incidental to Mr Jakab's application.
45 The Court will then determine the question of costs on the papers.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.