Kaluza v Repatriation Commission

JUDGES: MCKERRACHER, PERRAM AND ROBERTSON JJ DATE OF ORDER: 4 August 2011 WHERE MADE: SYDNEY

1. The appeal be allowed.
2. The order made by the primary judge on 15 November 2010 be set aside and in place of that order: (i) the decision of the Tribunal given on 2 July 2010 be set aside; (ii) the case be remitted to the Tribunal to be heard and decided again; (iii) the respondent pay the applicant's costs.
3. The respondent pay the appellant's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1692 of 2010

JUDGES: MCKERRACHER, PERRAM AND ROBERTSON JJ DATE: 4 AUGUST 2011 PLACE: SYDNEY

introduction 1 The appellant (Mr Kaluza) served in the Royal Australian Air Force for some 20 years from 1963 to 1983. In recent years he has, without success, pursued claims for compensation for medical conditions said to be caused by events experienced in that service. He maintains that the conditions are war-caused. 2 During the period of the Vietnam War he was a passenger in several flights to and from Vietnam. He relies on events in two different years as the stressors which caused his conditions. The first of these was said to have occurred on a flight which took place in early 1968 when he claimed to have seen injured soldiers. The second was in February 1969 when he was returning from Vietnam. In relation to the 1969 claim, Mr Kaluza was playing a game of cards on the casket of a deceased soldier whose body was being returned to Australia. It is only the 1969 flight and event that is common ground. Its causes and effects are not. 3 Mr Kaluza sought compensation from the respondent (the Commission) in the Veterans' Review Board. It was declined and he sought review in the Administrative Appeals Tribunal (the Tribunal). In Kaluza v Repatriation Commission [2008] AATA 392 (the First Tribunal Decision), the Tribunal affirmed the decision of the Veterans' Review Board. 4 On appeal to the Federal Court in Kaluza v Repatriation Commission (2008) 171 FCR 168 (the First Appeal) on two questions of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), the question for determination in each instance was whether Mr Kaluza was rendering 'operational service' within the terms of s 6C(1) of the Veterans' Entitlements Act 1986 (Cth) (the Veterans' Act) at the time when the claimed stressors occurred. It is unnecessary for the purposes of this appeal, to consider the detail of that provision and its application. 5 In the First Appeal, Branson J concluded that there was no proper basis for review in relation to the 1968 incident which had been determined on the merits. However, her Honour decided the question relating to the 1969 claim favourably to Mr Kaluza. 6 As a result, her Honour set aside the First Tribunal Decision and remitted the matter to the Veterans' Appeal Division of the Tribunal to be determined according to law. We set out at [12] below the terms of the orders made by her Honour. 7 On remittal, the Tribunal concluded once again, in Kaluza v Repatriation Commission [2010] AATA 498 (the Second Tribunal Decision), that none of the conditions from which Mr Kaluza suffers was war-caused. Mr Kaluza sought review 'appealing' that decision to this Court pursuant to s 44 of the AAT Act, that appeal again being on and limited to a question or questions of law (the Second Appeal). 8 Mr Kaluza appeals from the judgment of a judge of the Court in the Second Appeal (Kaluza v Repatriation Commission [2010] FCA 1244) dismissing his appeal from the Second Tribunal Decision.

BACKGROUND 9 The point of argument advanced in the First Appeal on the 1968 flight was that the Tribunal had misconstrued the relevant provisions as precluding a finding that he had operational service if the specific dates or dates of that service were not established or if that service was not confirmed by service records or both. Branson J, however, found that the Tribunal simply chose to prefer evidence from one source to evidence from another and on that entirely conventional fact finding ground dismissed the ground of appeal. 10 The second ground of appeal related to whether the Tribunal had, in the First Tribunal Decision, misconstrued relevant provisions in finding that the Butterworth to Pearce leg of the 1969 flight did not constitute operational service. That ground of appeal was upheld by her Honour who concluded that the Tribunal did not give consideration to the whole of the period during which Mr Kaluza was to be taken to have been allotted for duty in an operational area. 11 In remitting the case to the Tribunal, her Honour said at [24] and [25]: 24 For the above reason, in determining whether the conditions from which Mr Kaluza suffers are war-caused, the Tribunal did not give consideration to the whole of the period during which Mr Kaluza is to be taken to have been allotted for duty in an operational area. 25 It is appropriate that the decision of the Tribunal be set aside and the matter remitted to the Tribunal. Neither party identified a reason why, if the matter were remitted, it would be necessary for the Tribunal to be differently constituted or for further evidence to be adduced. I therefore make no directions in these regards (see s 44(6) of the Administrative Appeals Tribunal Act). 12 Her Honour then made the following orders: 1. The decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal be set aside. 2. The matter be remitted to the Veterans' Appeals Division of the Administrative Appeals Tribunal to be determined according to law. 13 It is common ground that no submissions, one way or the other, were made to her Honour to the effect that any remittal should be limited. Her Honour made the orders sought by Mr Kaluza in his notice of appeal.

THE TASK FOR THE TRIBUNAL 14 Before coming to the detail and argument of the appeal grounds, it is appropriate to briefly describe the nature of the task that the Tribunal was required to undertake. 15 Mr Kaluza's key conditions pertinent to this appeal are anxiety disorder and alcohol abuse. As he contends those conditions are war-caused based on operational service, the issues to be addressed by the Tribunal were as follows (adopting largely the submissions for Mr Kaluza): 1. The first question for the Tribunal was to identify the collection of relevant symptoms which the Tribunal was satisfied constituted the disease which the veteran contracted and which was comprehended by the claim. (Repatriation Commission v Budworth (2001) 116 FCR 200 (at [19]) (special leave refused [2002] HCATrans 303)). 2. If the Tribunal was satisfied that the symptoms constituted an injury or disease, as defined in s 5D of the Veterans' Act, then the question of whether those symptoms were war-caused was to be resolved in accordance with s 120(1) of the Veterans' Act as qualified by s 120(3) and s 120A (Budworth (at [19])). 3. In applying ss 120(1), 120(3) and 120A of the Veterans' Act, the Tribunal was to consider all the material and determine whether: (i) it pointed to some fact or facts (the raised facts) which supported an hypothesis connecting the disease with the circumstances of operational service; and (ii) that hypothesis can be regarded as reasonable, if the 'raised facts' are true. (Bushell v Repatriation Commission (1992) 175 CLR 408 (at 414)). 4. If the 'raised facts' pointed to one or more hypotheses of a connection, then the decision-maker must decide whether a Statement of Principles (SoP) was in force in respect of the 'kind of disease' from which the veteran suffers (Repatriation Commission v Deledio (1998) 83 FCR 82 step two (at 97F) and Benjamin v Repatriation Commission (2001) 70 ALD 622 (at [55]) (special leave refused [2002] HCATrans 302)). 5. If an SoP is in force in respect of the kind of disease from which the veteran suffers, then the hypothesis is reasonable only if it is 'upheld' by the SoP in the sense of being 'consistent with the "template" to be found in the SoP' (Deledio step three (at 97G)). 6. If an hypothesis is upheld by an SoP, or is not unreasonable under s 120(3), then the decision-maker must weigh the evidence under s 120(1) to decide whether the hypothesis is disproved beyond reasonable doubt (Deledio step four (at 97G) and Byrnes v Repatriation Commission (1993) 177 CLR 564 (at 571)). The claim succeeds if it is not so disproved. 16 When it came to addressing those issues in the Second Tribunal hearing, each of the parties obtained new evidence in relation to the contested 1968 flight. The case was reheard by the same members who made the First Tribunal Decision. 17 Although Mr Kaluza sought to adduce the new evidence in relation to the 1968 flight, the Tribunal approached its task on the basis that the remittal was limited to the issues arising from the 1969 flight and proceeded on that basis. 18 A central debate in the hearing at first instance and in this appeal has turned on whether the Tribunal was so bound by the remittal or whether the entire claim was remitted. At the heart of the dispute between the parties is the character or scope of the remittal by Branson J. 19 Each of the appeals to this court was brought pursuant to s 44 of the AAT Act which relevantly provides: (1) 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. … (4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision. (5) Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court. (6) If the Federal Court of Australia makes an order remitting a case to be heard and decided again by the Tribunal: (a) the Tribunal need not be constituted for the hearing by the person or persons who made the decision to which the appeal relates; and (b) whether or not the Tribunal is reconstituted for the hearing - the Tribunal may, for the purposes of the proceeding, have regard to any record of the proceeding before the Tribunal prior to the appeal (including a record of any evidence taken in the proceeding), so long as doing so is not inconsistent with the directions of the Court.

GROUNDS OF APPEAL 20 The four grounds argued on this appeal were argued, together with a fifth (no longer pursued), before the primary judge. All grounds were rejected. 21 An area of particular focus on appeal was the first ground dealing with the jurisdictional question of what was actually remitted to the Tribunal by Branson J. In a way that will be discussed below, a slightly different emphasis emerged on the appeal argument. The point of focus was not only on the actual nature of the remittal but how the Tribunal perceived its role as a consequence of the remittal. 22 The grounds of appeal mirror the remaining four of the five grounds before the primary judge and are as follows: 1. His Honour erred at [65]-[81], in construing the remittal, made by Branson J in Kaluza v Repatriation Commission on 9 September 2008, in matter NSD 850 of 2008, as being limited to the Applicant's [sic] operational service in 1969. 2. His Honour erred at [92]-[99] in holding that the Tribunal had not erred in finding that the clinical onset of the Appellant's anxiety disorder was in 1972. 3. His Honour erred at [100]-[113] in holding that the Tribunal had not erred in determining whether there were raised facts pointing to the hypothesis that the Appellant had experienced a severe psychosocial stressor. 4. His Honour erred at [114]-[117] in holding that the Tribunal had not erred in determining whether there were raised facts pointing to the hypothesis that the Appellant had experienced a severe stressor.

Ground 1 - The remittal 23 The primary judge accepted that ground 1 raised a question of law, namely, the consideration of the meaning and effect of the orders made by Branson J setting aside the First Tribunal Decision and remitting the matter to the Tribunal to be dealt with according to law. 24 His Honour noted that the submission made by Mr Kaluza was that the remittal order was unqualified and in the absence of any express limitation, it was for the Tribunal hearing the matter to determine all questions of facts and law relevant to the application. 25 Mr Kaluza submitted before the primary judge, and his Honour noted, the observation made by the Full Court in Peacock v Repatriation Commission (2007) 161 FCR 256 (at [18]) that it would be 'a rare case' in which a limitation in the remittal would be inferred from the reasons for judgment given by the remitting judge 'when the terms of the remittal are unqualified': We accept that Dowsett J might have limited the matter he was remitting for further consideration, but we think that it will be a rare case in which such a limitation can be inferred from reasons for judgment when the terms of the remittal itself are unqualified. .... 26 The Commission argued and the primary judge accepted that this observation by the Full Court was not intended to place a restriction on the ability of the Tribunal to determine the nature of the hearing on the remittal having regard to the terms of the order and the circumstances of the case. His Honour followed Repatriation Commission v Nation (1995) 57 FCR 25 per Beaumont J (at [33]) (with whom Black CJ and Jenkinson J agreed), Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 (at 387) as well as Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1 per Basten JA (at [37]) (with whom Beazley JA and Young JA agreed). 27 Also accepted by his Honour was the Commission's submission that there was sufficient ambiguity in the terms of the order under consideration to warrant consideration of the reasons and context giving rise to the orders. In that regard, the primary judge referred to the statutory conferral of power under s 44(1) of the AAT Act entitling, once a jurisdictional prerequisite was satisfied, the Court to make such orders as it thinks fit including an order setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again either with or without the hearing of further evidence by the Tribunal: see s 44(4) and s 44(5) of the AAT Act. Subsection (6) provides that the Tribunal need not be constituted by the tribunal members who made the decision to which the appeal related. The primary judge took the view (at [75]) that the exercise of power by Branson J to set aside the decision of the Tribunal and remit the 'matter' was expressly predicated upon the reasons given by her Honour for answering the second question favourably to Mr Kaluza. It followed that the 'matter' remitted was only the question of whether the second leg of the journey from Vietnam, via Butterworth in Malaysia, to Pearce in Western Australia was part of Mr Kaluza's 'operational service'. The only error of law committed by the Tribunal as identified by her Honour was that it failed to consider whether Mr Kaluza's allotment for duty on the return leg from Butterworth to Pearce was operational service rendered by Mr Kaluza. The primary judge noted the observation by her Honour (at [25]) that neither party identified a reason why the Tribunal should be differently constituted or for further evidence to be adduced to be consistent with the view as to the scope of the remittal. 28 The Commission argues now, as before the primary judge, that were this not so, the effect would be that the entire case including the question on which Mr Kaluza had been unsuccessful in the First Tribunal Decision and on appeal would be remitted to the Tribunal. In this regard, the primary judge took the view that the distinction in Peacock was directed principally to the question of whether a new question could be raised at the rehearing. His Honour considered that to be quite a different position from the present case where the question had been raised and answered adversely both at the initial hearing in the Tribunal and on the appeal to the Court. Rather, the position was analogous to that which occurred in Nation. 29 On appeal, the Commission has maintained its position and adopts the approach taken by the primary judge. In particular, the Commission submits that the approach taken by the primary judge would not lead to 'increased uncertainty in litigation' as contended for by Mr Kaluza. Such a proposition, it says, is not supported by authority and the primary judge did not suggest that one consider the reasons in every case in order to construe the scope of the orders made. Nevertheless, it was clear on authority that where there was uncertainty as to the scope of an order, it was proper for the Court to consider the nature and context of the relevant dispute. 30 The Commission also relies on the fact that at no point during the appeal had Mr Kaluza foreshadowed that he wished the whole of the claim to be reconsidered. The Commission stresses that there is nothing in her Honour's reasons which could support a finding that all matters needed to be reconsidered. It would be wrong to construe the order to mean that having success on a limited point would be success on all points. The Commission argued that confining the remittal, as was the approach taken by the Tribunal and the primary judge, promoted certainty for the parties and the Tribunal as to the scope of any further hearing. 31 The Commission also submits that s 44(4) and s 44(5) of the AAT Act would suggest that the evidence already taken in an earlier hearing is to continue to be evidence before the Tribunal. 32 As against those submissions, the history of this matter appears to be that no submissions had been made by any party to her Honour to the effect that any remittal should be limited. The width of the Court's power under s 44(4) of the AAT Act makes it clear that were it the intention to expressly impose a limitation on the remittal, it would be open to the Court to do so. 33 Section 44(5) speaks in terms of affirming or setting aside the decision and remitting the 'case' rather than remitting the 'matter'. Although no technical distinction arises, in our view, there is no reason to consider that there was any limit on the remittal as the Commission contends. The effect was simply to remit the case to the Tribunal to be heard and decided again without any directions being imposed limiting how the Tribunal was to proceed. Although different views were taken in Nation and Morales when a 'matter' was remitted, those two decisions preceded Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518. Peacock in contrast not only post-dated Wang but took into account the reasoning in Wang. That reasoning is pertinent to this appeal. 34 In Wang the High Court allowed an appeal from the decision of the Full Court of this Court which had directed that a matter be remitted to the tribunal 'as previously constituted'. Gleeson CJ held (at [7] and [16]) that orders setting aside a decision and remitting the matter to be determined according to law meant that all questions of fact and law relevant to the claim before the tribunal (in that case, the Refugee Review Tribunal) had to be determined again. McHugh J noted (at [45]) that the tribunal was not bound to make the same findings that it had made on the first occasion and Gummow and Hayne JJ (at [67]) held that the Court's orders taken as a whole provided for the tribunal to begin its statutory task again. 35 When the Full Court came to consider this situation again in Peacock in 2007, the question for consideration arose from a single judge having upheld an appeal on the basis that the Tribunal had erred in applying the criteria set out in s 24(1)(c) of the Veterans' Act. That was an issue which had previously been conceded by the Commission. The Full Court held that the Tribunal had not erred in doing so. After considering Nation, Morales and Wang the Full Court departed from the approach taken in Nation and Morales concluding (at [6]) that once the prior decision of the Tribunal was set aside, in the absence of some express limitation, it was then for the Tribunal hearing the matter to determine all questions of fact and law relevant to the claim. As appeals are limited to questions of law it was unsurprising that the issues discussed in the appeal were limited but it did not follow that what was remitted was confined to the issues relating to that question of law. As the primary judge noted, the Full Court commented (at [18]) that it would be a rare case in which a limitation to a remittal would be inferred from reasons for judgment when the terms of the remittal were unqualified. 36 In Peacock (at [19]) the Full Court said: The respondent referred us to Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374, particularly at 63 [scil 387-388] and Repatriation Commission v Yates (1997) 46 ALD 487 at 492-494, in which orders remitting "the matter" were held to require that the whole matter must be heard and decided again. The applicant relied on Repatriation Commission v Nation (1995) 57 FCR 25. In that case the Full Federal Court held that a remittal of "the matter" was sufficiently ambiguous to permit resort to surrounding circumstances. The Court held that the terms of the reasons made it clear that the remittal was restricted. However, in that case it had been accepted since 1983 that the veteran's sinusitis condition had been war-caused. The only matter decided by the Commission to which the appeal and remittal related was whether another condition, anxiety neurosis, was also war-caused. Accordingly, the remittal did not permit the veteran's entitlement arising from his sinusitis to be reconsidered. This case is quite different. It is argued here that the remittal excludes matter that was before the Commission when it made its decision under review. 37 Ordinarily orders made by a court will be taken at their face value rather than being construed in context having regard to their purpose and object. It would be, as the Full Court noted in Peacock, a rare case where it was otherwise. There is nothing 'rare' about this remittal. It is and was open to the Court partially to remit a matter but in this case that was not done. Her Honour was not asked partially to remit the case. Cases on judicial review frequently refer to two or more claims. It is common for a large number of issues to be agitated on judicial review but it may only be one of those in which there is success and remittal. It cannot be said that a decision-maker exercising executive power is confined to considering only those issues in respect of which a point of law was made out. This is particularly so in the context of s 44 of the AAT Act which is restricted to appeal on an error of law. 38 The Commission argued, and the primary judge accepted (at [72]), that the orders of the Tribunal were ambiguous in the sense described in the reasoning of Beaumont J in Nation. It seems to us that this approach has been displaced by the reasoning in Wang which was followed in Peacock. In light of the statements in Wang, in our view, unless there is some qualification in the remittal order, there is nothing ambiguous about the order. The entire case is remitted. See also the consideration of a similar issue in R v Carroll (2010) 77 NSWLR 45 at [29]-[30]. 39 In relation to the Tribunal three further and related considerations are relevant. 40 First, the Tribunal stands in the shoes of the primary decision-maker and by s 43(1) of the AAT Act, for the purpose of reviewing a decision, may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision. In our view construing the scope of a remittal as limited would tend to run counter to the Tribunal's function. 41 Second, it would often be impossible or undesirable for the Court to seek to anticipate how it may be that one factual issue might interrelate with another even where the legal issues are separate. The Tribunal acts on the material before it without being limited in the same way in which the Court is generally limited on judicial review to the material before the primary decision-maker. Depending on the subject-matter and on the length of time between the date of the Tribunal's decision and the exhaustion of the s 44 appeal process, the material before the earlier Tribunal may no longer be up to date in the Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 sense. It may be legally embarrassing to the Tribunal to be required to approach the fact finding task in this limited way and therefore be a reason not to construe a general remitter as limited by and to a specific question of law where more than one such question was argued before the court. 42 Third, the Peacock approach avoids potential anomalies where a question of law and the facts associated with it has not been the subject of appeal, cross-appeal or a notice of contention. 43 Legal policy also favours simplicity and certainty: see, in another context BP Australia Ltd v Brown (2003) 58 NSWLR 322 at [115]-[116]. 44 This does not mean that there is an obligation on the Tribunal to rehear all the same evidence. It is for the Tribunal rehearing the matter to determine all questions of fact and law relevant to the claim. By considering that it was bound to only consider the 1969 claim (rather than it being open to it to entertain an application to adduce new evidence on the 1968 claim), the Tribunal did not consider the entire remittal and deprived itself of the obligation to consider the 1968 flight claim. 45 Although the Commission suggests that there was a limited remittal by reason of her Honour's decision not to make any directions for a different constitution of the Tribunal or for evidence to be adduced, we regard these factors as being neutral in character. They are capable of amounting to a notation that, in effect, her Honour had directed her mind to whether or not such orders had been sought. Her Honour did not have to make any such orders as none had been sought. 46 Given that the First Tribunal Decision was affected by legal error, it is the entire determination comprising the various claims within it that was set aside, not the legal error giving rise to an erroneous conclusion as to one of the claims. 47 It is contended for the Commission that the Tribunal simply exercised its own discretion as to how to deal with the rehearing. Thus the Commission contends that the better approach for Mr Kaluza would have been to accept the loss on the first leg of the appeal and to have made an application to reopen on the basis that there was new evidence. That might have led the Tribunal to take a different consideration into account. However, it seems clear to us from the language used in its considered reasons, that the Tribunal regarded itself as being bound not to embark further on enquiry in relation to the 1968 claim. The Tribunal was not so bound as a result of the order remitting the matter but it was open to the Tribunal to, for example, entertain, consider and reject the application to adduce fresh evidence on the 1968 claim. The language of its reasons however, consistent with the Commission's submissions advanced to it was in terms of being bound to consider only the 1969 claim. At [29]-[31] of the Second Tribunal Decision it was made clear that it considered itself to be bound: 29. By contrast it was clear to us that Justice Branson qualified her remittal. We accordingly preferred the submissions of the Respondent regarding the limited remittal in Mr Kaluza 's case, and are satisfied that what we must do is limited to the acceptance of the Applicant's flight home from Vietnam on 22 - 26 February 1969, in full, as operational service. In doing so, we rely on paragraph 38 of Walker where their Honours stated as follows: Furthermore, in considering both the intended scope of a remitter and the appropriate scope of the hearing following remitter, a material consideration will often be the nature of the matter in dispute. Thus, a different approach may be taken in respect of a claim which is to be determined in accordance with the facts as they exist at the time of the remitted decision, as compared with a claim which involved the assessment of facts at a fixed time in the past. The present case falls into the latter category. 30. We accept the facts relating to Mr Kaluza and his evidence as they existed at the time of the Tribunal's first decision, and remitted decision. His evidence regarding the stressors he experienced in 1969 cannot, in any case, be changed. We informed the parties that we would not require further evidence to be adduced, and are mindful that ultimately we must conduct proceedings as we see fit (section 33, Administrative Appeals Tribunal Act 1975). We must therefore consider the evidence surrounding the operational service flights in which Mr Kaluza participated in February 1969, and the stressors he claims as causing the conditions he suffers to be war-caused. 31. Remittals are different in each case, and must take into account the circumstances of the case. It is true in many circumstances the whole case is remitted. However in this case, the first leg of the appeal was not upheld, and Justice Branson remitted only the second, with a proviso that the Tribunal did not need to be reconstituted, and that no further evidence was necessary. We are satisfied that Justice Branson remitted the matter in a limited way, and have dealt with it accordingly. (emphasis added) 48 For those reasons, we accept Mr Kaluza's arguments. What was remitted was the entire case. It is not a question of whether Mr Kaluza should have been permitted to 'reopen his entire claim' as advanced by the Commission. It is rather a question of identifying precisely what was remitted. As the First Tribunal Decision had been set aside, what was remitted was the entire application to the Tribunal. The error on the part of the Tribunal was to consider that it was precluded from considering the grounds which were not upheld on the First Appeal.

Ground 2 - Date of clinical onset 49 The primary judge also rejected Mr Kaluza's contention that the Tribunal had misstated and therefore misapplied the test for determining 'the clinical onset' of Mr Kaluza's disease. The relevant SoP for anxiety disorder required clinical onset within two years of experiencing a stressor. It followed that the Tribunal's finding as to clinical onset was important. 50 The primary judge noted that the Full Court in Lees v Repatriation Commission (2002) 125 FCR 331 (at [13]) held that there was a clinical onset of a disease either: when a person becomes aware of some feature or symptom which enables a doctor to say that the disease was present at that time; or when a finding is made on investigation which is indicative to a doctor that the disease is present. 51 The primary judge also noted (at [93]) that the definition in Lees emphasised the need for a determination of the clinical onset by medical evidence. Although it is for a doctor to say when the clinical onset occurred by the presence of features or symptoms, clinical onset was not necessarily when the patient first saw a doctor for medical treatment. 52 Mr Kaluza contended before the primary judge, and on appeal, that in the Second Tribunal Decision, the Tribunal misapplied the test referred to in Lees so as to treat the date of clinical onset as the date on which treatment was sought. 53 Reference was made to [38] of the Second Tribunal Decision where the Tribunal said: In order to determine the clinical onset of the conditions, we took into account the decision of Lees v Repatriation Commission (2002) 125 FCR 331 where the Court stated that all of the required symptoms had to be displayed, and treatment sought in order to determine clinical onset. We did not reconsider the dates we accepted for clinical onset at the time of the 2008 decision. Anxiety Disorder: By way of completeness we note that we were satisfied from the evidence of the Veteran (given at the first hearing), a consideration of the tests in the DSM-IV for PTSD and anxiety disorder, and the reports of the doctors who treated and examined Mr Kaluza, that the preferred diagnosis was anxiety disorder. We accept that a psychiatric condition was established by 1968, but that it had first been treated in 1972, and that this is therefore the date of onset for purposes of the matter before us. Alcohol Abuse: We were satisfied on the basis of Dr Dinnen and WG Cdr Isbister's reports that Mr Kaluza's alcohol abuse was established by 1972. Hypertension: We noted that Mr Kaluza made a claim for hypertensive cardiovascular disease to be accepted as war-caused. The claim was rejected by the VRB, which reclassified the disease as hypertension, and decided that it was satisfied Mr Kaluza suffers from hypertension, with its clinical onset in approximately July/August 1972. In its decision in 2008, this Tribunal decided on the basis of the evidence before it that the Veteran suffers hypertension, and accepted Dr Butler's opinion that when therapy was commenced in 1975 should be regarded as the clinical onset of hypertension (Lees). (emphasis added) 54 The primary judge did not agree that the paraphrasing of the test in Lees was inaccurate. His Honour noted (at [95]) that the paraphrasing captured the essence of the test which was that all the symptoms must be displayed and treatment sought so that the practitioner can determine the date of clinical onset. 55 Mr Kaluza says that the use of 'and' in [38] is quite unambiguous treating the test in Lees as being conjunctive with two requirements. In other words, the claimant must display the symptoms and seek treatment. The Tribunal indicated that it did not reconsider the dates accepting the date of clinical onset determined in its 2008 decision. 56 His Honour considered that viewed in context (at [96]), the remaining subparagraphs of [38] did not suggest the Tribunal approached the issue by determining the date of the first treatment as the date of clinical onset but was doing no more than endeavouring to restate the findings it made in the First Tribunal Decision (at [34], [87] and [88] of that decision). His Honour considered (at [98]) that the correctness of the Tribunal's approach was emphasised by what it said later when considering whether the conditions from which Mr Kaluza suffered were war-caused. The Tribunal held (at [72]) that the onset of the anxiety disorder was 1972, when it was first treated, and this would meet the template for that disorder in the SoP. However, the Tribunal went on to find (at [81]) that notwithstanding the existence of the disorder, it was not relevantly caused by Mr Kaluza's war service. The same approach was taken in relation to alcohol abuse (at [97]). 57 At those paragraphs the Tribunal said - [72] As to factor 5(a)(vii), having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of anxiety disorder. The medical evidence points to that as a sequence if the onset of anxiety disorder (a clinically significant psychiatric disorder) arose in 1969 and 1970, and the clinical onset of anxiety disorder in 1972. We have held that Mr Kaluza suffered a psychiatric condition of anxiety by 1968, although its onset was 1972 when it was first treated. That would point to meeting the template in the SoP. … [81] However, we are satisfied that Mr Kaluza developed a psychiatric illness variously diagnosed first as PTSD, then anxiety disorder, the severity of which was not uniformly accepted. Dr Roberts in particular thought that Mr Kaluza suffered mild anxiety. We noted Mr Colborne's submissions that the onset may have been earlier, but are satisfied that the onset was in 1972 when Mr Kaluza was first treated. That is three years after the 24 February 1969 event. We are satisfied beyond reasonable doubt that notwithstanding we found that Mr Kaluza suffered a psychiatric disorder with onset of anxiety disorder in 1972, the playing of cards on the casket on 24 February 1969 did not make the required nexus to war service. … [97] We were satisfied with the consistent reports regarding alcohol consumption Mr Kaluza gave to the other doctors he consulted, noting also that the Veteran's marriage has suffered, and that Mr Kaluza and his wife are separated. We also noted that WG Cdr Isbister reported on 9 October 1972 that Mr Kaluza suffered some mild liver damage probably secondary to alcohol, signalling excessive alcohol consumption even then. However the medical evidence before the Tribunal, including that of Dr Dinnen, confirmed that the alcohol abuse arose out of the anxiety disorder, and therefore, notwithstanding Mr Kaluza's alcohol abuse was contemporaneous with his anxiety condition, we could not be satisfied beyond reasonable doubt that Mr Kaluza's alcohol abuse was war-caused, because we have found the anxiety condition to not be war-caused. We are therefore satisfied beyond reasonable doubt that Mr Kaluza's alcohol abuse is not war-caused. 58 The Commission contends that Mr Kaluza had not identified any legal error by the primary judge. The Commission accepted the statement of the test (in the disjunctive as cited above) but made the point that the Tribunal's original findings about clinical onset were not the subject of the first appeal before Branson J and that Mr Kaluza should not seek to reopen the issue. 59 It argues that the Tribunal determined clinical onset by reference to medical evidence which is the correct approach and that any other reading of the reasons in [38] of the Second Tribunal Decision is to do so with an over-zealous eye for error. As noted in Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 (at 585-586), in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (at 271-272 and 291-292) the High Court emphasised that it was inappropriate, in the conduct of judicial review, for an over-zealous approach to be adopted towards the reasons of the administrative decision-maker. Such reasons were to be given a 'beneficial construction' with the avoidance of minute and fine scrutiny by 'an eye keenly attuned to the perception of error'. 60 The parties accept that the real question is whether the correct test has been applied not whether 'and' should have read 'or' in the paraphrasing of Lees. The Tribunal did not take any further evidence going to diagnosis of Mr Kaluza's conditions so that its previous finding that he suffered from anxiety disorder, alcohol abuse and hypertension stood. The same or similar approach was taken in relation to the date of clinical onset and the Tribunal reaffirmed in its second hearing that the date of clinical onset for the anxiety disorder and alcohol abuse was 1972 and for the hypertension, 1975. The Tribunal also found (at [93]) that the material pointed to the dates of onset of anxiety disorder and alcohol abuse as being concurrent in 1972. 61 Therefore, it follows that in respect of the anxiety disorder, the Tribunal found that there was a psychiatric condition established in 1968 but it was first treated in 1972. Because that was the date of first treatment, the Tribunal held (at [38]) that 1972 was the date of onset. 62 This analysis does suggest that the Tribunal's approach was that the test in Lees was that all the required symptoms had to be displayed and treatment sought in order to determine clinical onset (in [38]). However, that was not the approach taken in Lees where the Full Court (Heerey, Moore and Kiefel JJ) cited (at [13]) from the first instance judgment of Branson J in Lees where her Honour said: … there is clinical onset of a disease either when a person becomes aware of some feature or symptom which enables a doctor to say that a disease was present at that time, or when a finding is made on an investigation which is indicative to a doctor of the disease being present … (emphasis added) 63 As the Full Court explained (at [16]) the purpose of the definition was to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from a generalised anxiety disorder. 64 The Tribunal appears to have accepted Dr Dinnen's evidence that the onset of the anxiety disorder was 1969 or 1970 as indicated by Mr Kaluza's heavy drinking but was not diagnosed clinically until 1972. The Tribunal seems to have found (at [38]) that a psychiatric condition was present from 1968 because Mr Kaluza had testified that he had problems with his drinking from 1968 or 1969. 65 Although it is said that Mr Kaluza has not identified an error of law, if the Tribunal has treated the two elements of Lees as being cumulative, that is an error of law as it has not only misstated but misapplied the test. The Tribunal reinforced that error at [95] of the Second Tribunal Decision where it said: In that regard we accepted the evidence of the Applicant that he had begun a pattern of increase in his alcohol consumption after joining the Air Force. The evidence before us satisfies us that Mr Kaluza's drinking escalated seriously during his trip to the USA in 1972 due to personal problems and missing his family, and anxiety. He continued to abuse alcohol with short intervals of abstinence such as attendance at AA, or a St John of God Hospital program (2003). In considering Mr Kaluza's alcohol abuse, we accepted that the onset was 1972, when treatment was commenced. (emphasis added) 66 The test for clinical onset in Kaluza is disjunctive. The analogy given for Mr Kaluza was that a person might say 'I noticed [symptoms] in March last year but I didn't see a doctor until July'. If a doctor can say from the onset of those symptoms in March that that indicates the presence of disease at that time, that is the date of clinical onset. The other possibility is the finding which is made on investigation when a person actually attends upon a doctor who examines the person. That is why the Full Court, in adopting the approach of Branson J at first instance in Lees, explained that the purpose of the definition was to identify those symptoms or features which 'if observed by a clinician, would warrant a conclusion …'. 67 To determine whether in substance, as distinct from misstating a word in the test, the wrong test has been applied it is necessary to examine the two sets of decisions from the Tribunal. The Second Tribunal Decision adopts the findings made in the First Tribunal Decision. 68 In the First Tribunal Decision the Tribunal said - 61 Dr Dinnen opined that: "the most appropriate diagnosis was of generalised anxiety disorder associated with alcohol abuse although there are obvious features of post traumatic stress disorder and I do not cavill at the diagnosis proposed by Dr Koller and Dr Reinhardt ...". 62 In his oral evidence Dr Dinnen opined that in the 1960s and 1970s Mr Kaluza's condition was more like anxiety disorder, but that in recent times it resembled PTSD. He commented that the onset was in the early years of service, that Mr Kaluza had been treated for anxiety in 1972, and that the condition was established between 1968 and 1972. He opined that the illness had clinical recognition in 1972. (emphasis added) 69 The Tribunal appears to have relied on those views in reaching its conclusion as to the date of clinical onset. The evidence was that 'onset' of the anxiety disorder was in the early years of service, that Mr Kaluza had been treated for anxiety in 1972 and the condition was established between 1968 and 1972. Dr Dinnen opined that the illness had 'clinical recognition' in 1972. There may be some clouding of the terminology but it does appear that in the First Tribunal Decision, the Tribunal was not referring to clinically observable symptoms but rather formal clinical acknowledgement by, as the Tribunal puts it in its more recent reasons at [38], 'first treatment' in 1972. 70 From this it follows, without being over-zealous to identify error, that the Tribunal did apply the version of the Lees test which it described (at [38]) by identifying not only the first limb of the test but also the second. In other words, the Tribunal construed the test as one in which the date for clinical onset was to be the date of the formal finding on investigation even though that may be well after the date at which all the required symptoms were displayed. The usage of the subjunctive criteria in the Tribunal's statement of the test has been applied in its actual approach reflected in its findings. Taken together, these features and analysis show that it took an erroneous approach. 71 In our view this ground should succeed. The fact that it was not advanced before Branson J on the earlier appeal does not preclude it from being raised now in relation to what was, as we have held in relation to Ground 1, a full rehearing.

Ground 3 - Severe psychosocial stressor 72 This question here is whether the Tribunal addressed itself to the wrong SoP in considering whether there were raised facts pointing to the hypothesis that Mr Kaluza had experienced a severe psychosocial stressor. The Tribunal said: 57. A 'severe psychosocial stressor' is defined in Instrument No.1 of 2000 as 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), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems. 58. The raised facts, that is Mr Kaluza being invited to play a card game on the casket on the flight of 24 February 1969, and possible carriage of minor casualties do not point to the possibility of Mr Kaluza experiencing a 'severe psychosocial stressor' during that flight, and fitting the template in Instrument No. 1 of 2000. 59. Dr Dinnen did not refer to the playing of cards on the casket in particular as a severe psychosocial stressor, but relied on all the occurrences of stress which Mr Kaluza recounted, in particular the carriage of wounded soldiers on various flights. 60. We noted that Dr Roberts opined in his medical report dated 2007, that Mr Kaluza's presentation was consistent with mild depression and anxiety symptoms, (not PTSD), and that the description of the card game could not be held to be a severe stressor in the terms of the SoPs. 61. Mr Kaluza's experiences on the flight of 24 February 1969, as he raised them, demonstrated some distress, and in order to fit the template, needed to point to a threat of death or serious injury or to his physical integrity, and which with his knowledge and in his experience, could reasonably be so perceived. In that regard, we have taken into account Stoddart v Repatriation Commission (2003) 74 ALD 366. It is consistent with these provisions that the SOPs should be read as meaning that a claimant experiences 'a severe stressor' if that person experiences or is confronted with an event or events which that person perceived as a threat of death or serious injury or to physical integrity, and which with that person's knowledge and in that person's experience, could reasonably be so perceived. Stoddart is authority for the situation where Mr Kaluza's distress regarding the identity of the person in the coffin did not need to be accurate, that is the events experienced can be a combination of subjective feelings and objective situations as in the case of the cocked gun (which may or may not be loaded), referred to in Stoddart. In order to fit the template, Mr Kaluza's fourth hand in the game of cards on the casket had to point to a threat of death or serious injury or to his physical integrity by a combination, at least, of an objective threat and/or the expression of his feelings. Mr Kaluza's situation does not in our view meet the factors for experiencing a severe psychosocial stressor in order to raise a reasonable hypothesis. The other situations available in order to fit the template were being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems. Mr Kaluza did not raise those situations as hypotheses; they did not arise as hypotheses. (underlining added) 73 We note that Stoddart v Repatriation Commission (2003) 197 ALR 283 was dealing with a different SoP. We also note that the words we have underlined came from SoP No. 3 of 1999 (amended by SoP No. 54 of 1999) not from SoP No.1 of 2000 and are quite different to 'evokes feelings of substantial distress' which was the language of the correct SoP. 74 The primary judge dealt with the issue at [109]-[113] although it appears that the argument may have been put to him in different terms. 75 The difficulty with the Tribunal's reasons on this topic are that, although it correctly stated the test by reference to the correct SoP and it referred (at [63]) again to part of the correct SoP in passing (albeit that it tended to treat the examples given as being exhaustive rather than examples only) in the central part of its reasoning in [61] it considered terms from the incorrect SoP and that error was repeated and applied in [62]. 76 The Commission submitted in effect that there was only one answer, that is, as a matter of fact what had happened could not evoke feelings of substantial distress in an individual. However in an evaluative matter such as this the Court would be slow to conclude that the Tribunal, if it had applied the correct test, must have come to the conclusion to which it did. 77 We find that the Tribunal applied the incorrect test and therefore we uphold this ground. It will be for the Tribunal to decide whether, applying the correct test, a reasonable hypothesis is made out.

Ground 4 - Severe stressor 78 The final issue is whether there was legal error in the Tribunal's determination of whether there were raised facts pointing to the hypothesis that Mr Kaluza had experienced a severe stressor as defined in the relevant SoP. The Tribunal rejected the contention that the alcohol abuse was caused by experiencing a severe stressor when playing cards on the coffin. 79 The Tribunal's full reasons on this question were as follows: [92] We have considered the definition of experiencing a severe stressor (factor 5.(b)), which 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 people's physical integrity, which event or events might evoke intense fear, helplessness or horror. We have taken into account what the Court said in Stoddart about subjective and objective elements in the application of stressors. The events raised in relation to the flight do not point to the possibility of fitting the template in the SoP, and a reasonable hypothesis cannot be raised in that regard. The reference to Stoddart is to Stoddart v Repatriation Commission (2003) 197 ALR 283 referred to earlier in the Tribunal's reasons at [61]-[62] (appeal dismissed: Repatriation Commission v Stoddart (2003) 134 FCR 392.) 80 Mr Kaluza accepts that the Tribunal referred to the correct SoP, No. 76 of 1998. 81 It did not, however, deal expressly in its reasons with the precise words of a person being 'confronted with an event … that involved actual ... death'. Rather the Tribunal may have been referring back to what it had earlier considered at [57]-[62] as applied to the present SoP terminology of "intense fear, helplessness or horror". But it is not clear that those paragraphs were dealing with the degree to which Mr Kaluza's feelings were affected as the reasoning went off on the threat of death or serious injury, issues we have already considered. Further, those paragraphs did not deal with the issue of a person being confronted with an event that involved actual death within the meaning of SoP No. 76 of 1998. 82 We proceed on the basis that the Tribunal's reasons set out the entirety of its reasoning: see s 43(2B) of the AAT Act which provides that where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. 83 Woodward v Repatriation Commission (2003) 131 FCR 473 shows that one may be 'confronted' with such events which one has neither seen nor experienced. Although the Tribunal noted (at [7]) that it was agreed by both parties that Mr Kaluza held an incorrect belief at the time about the identity of the deceased soldier in the casket, nevertheless the Tribunal did not in its reasons specifically address the question of whether, objectively, Mr Kaluza was confronted with an event of this nature. 84 As in Woodward, at [61], the Tribunal did not explain why the material failed to raise or point to his having been confronted with an event or events of the type in question. 85 The Tribunal's bare conclusion must be read against earlier paragraphs in its reasons: [49] Mr Kaluza was on a flight from Butterworth to Vietnam, and back to Australia between 22-26 February 1969, and described how during the flight from Butterworth to Pearce on 24 February 1969, he was invited by fellow soldiers who were playing cards on a casket to participate as a fourth hand in the game. He said he thought at the time that they were transporting a coffin which he understood to contain the remains of an Aboriginal soldier who had been shot dead by the SAS. Mr Kaluza's reaction to the incident was that he was upset because he visualised himself in the coffin with no head, or being someone who had been shot in the head. He said (transcript p 13): … they were playing … dealing a fourth hand and they actually invited me to take that particular hand and I was really upset … I did and tried to show some bravado or just not too concerned about it but that, that's haunted me for the rest of my life until now. 86 Also at [61] and [62] the Tribunal referred to Mr Kaluza's distress. 87 Again, at [79] the Tribunal repeated what it had said at [49] and added: [80] Mr Kaluza has since found out, and it is not in dispute between the parties that his belief was erroneous, and that the soldier was another casualty. We accepted that this does not lessen the impact of the reaction Mr Kaluza described he had to the event . . . 88 The primary judge said that he did not consider that in the present case the Tribunal fell into the error identified in Woodward. His Honour said that the Tribunal identified the correct test and its conclusion was based upon the matters to which he had referred in dealing with the question of the severe psychological stressor. To the extent that we have found that those matters are infected with legal error we would not endorse that reasoning. Further, to say that an event does not point to a severe psychosocial stressor as defined does not necessarily mean that it does not point to a severe stressor. That is a matter for the Tribunal to decide. 89 We find that the Tribunal did not address part of the correct question, that part being whether Mr Kaluza was 'confronted with an event … that involved actual . . . death'. We so conclude on the basis that if the Tribunal had addressed that question it would have articulated reasons for its conclusion. Without addressing that issue the Tribunal could not have gone straight to consider the effect of the (unidentified) event. We therefore uphold this ground.

CONCLUSION 90 For these reasons we allow the appeal and remit the case to the Tribunal to be heard and decided again. I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices McKerracher, Perram and Robertson.